LAW SERVICES

Frequently Asked Questions

Servitudes and Easements and Rights of Way

 Louisiana’s system of civilian law uses different terminology that may be foreign to those accustomed to the common law systems of the other states. Servitudes and easements are very common examples of this different terminology. Their meanings generally overlap, as discussed herein, but the rules as to how they work can be very different.

Servitudes

Ownership of property is not a single right. Rather, it is a bundle of rights consisting of the right to possess it, the right to exclude others from it, the right to exploit it, etc. Because of this fact, the law allows an owner to transfer some of these rights to another. For example, a property owner can grant the right to traverse over his property. This is known as a Servitude of Passage. If the right is granted to a neighboring tract, it is known as a Predial Servitude, and it can be enjoyed by anyone who owns that tract. If the right is granted to a person, it is known as a Personal Servitude and can only be exercised by that person.

Easements

Like a servitude, an easement is the right to use property belonging to another, and they fall into two categories. If the right belongs to neighboring property (the predial servitude discussed above), it is known as an Appurtenant Easement and can be enjoyed by whomever owns that property. If the right belongs to a person (the civilian personal servitude), it is known as a Gross Easement. As with servitudes, one of the most common types of easements is the right to cross over a tract of land, which, in common law parlance, is known as a right of way.

As illustrated, servitudes and easements perform the same function with regard to property law. They are very useful rights and, for that reason, are very common under both systems of law. But they are also governed by specific rules and often spawn disputes. Moreover, civilian law and common law have very different rules governing the establishment, interpretation, enforceability, and termination of these rights, so a party should consult with a lawyer when dealing with them.

 

General Warranty Deed

A general warranty deed is a legal instrument by which a person transfers ownership or other rights in real property to another. It usually takes the form of an act (for an example, an act of sale) that is signed by seller and buyer and, usually, witnessed and notarized. The law reads certain warranties into these acts of transfer, such as warranty of title. In other words, when a person sells property, the law presumes that the seller owns the property and that it is free from any encumbrances, whether placed on the property by the seller or any other person. If such problems arise, then the buyer may sue the seller to fix the problem or return his money and damages.

Special Warranty Deed

A special warranty deed is another instrument by which a person transfers ownership or rights in property to another, but with less protections to the buyer. Specifically, the special warranty deed only protects the transferee from defects in title caused by the omissions or commissions of the transferor – not from his predecessors in title.

Quitclaim Deed

A quitclaim deed is a third type of legal instrument by which a person transfers ownership or rights in property to another. Unlike the warranty deeds, transferee has no title protections with a quitclaim deed. Rather, the transferee only receives whatever rights the transferor had in the property without any warranty. For this reason, quitclaim deeds are used infrequently (for example, to transfer property between family members, etc.)

Bond for Deed

A bond for deed is a contract to sell real property where buyer pays the price in installments. However, unlike other transfers, title remains with the seller until the buyer pays all installments. Moreover, if the buyer defaults, the seller keeps all payments and has no obligation to transfer any part of the property. For these reasons, bond for deeds are used rarely, usually when the buyer has problems obtaining conventional financing.

Title insurance insures against financial loss caused by defects in title to immovable property. Title insurance companies cover the costs of litigation involving title defects, or in the case of a covered loss, reimburse the insured up to the policy limit.

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Dual Assessment – property given 2 tax assessment numbers and sold

When property owners own multiple properties, they sometimes request the Assessor to issue a bulk assessment for them. To do so, the Assessor cancels the individual property assessment numbers and assigns a single ‘bulk’ assessment number to the multiple properties and bills accordingly. This, however, sometimes causes problems, as it did in a recent case where the purchaser of multiple properties obtained a bulk assessment number for his tracts. Unfortunately, however, the Assessor failed to cancel one of the single assessment numbers and continued issuing bills to the seller. As the seller no longer owned the property, he ignored them, and the individual tract was sold to a third-party at tax sale, even though the buyer was paying taxes for that tract under his bulk assessment number. The Firm was able to have the tax sale annulled, given that (i) the purchaser was not provided notice of the tax sale, and (ii) the purchaser was current on his property taxes.

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Encroachment – House Encroaching on Neighbor’s Property

The Firm recently resolved a lender’s policy claim involving the encroachment of a structure onto a neighboring tract. In this case, the property owner’s home encroached over the property line of her neighbor (her son). When the owner died, the loan fell into default, and the Bank commenced foreclosure proceedings. The son objected, claiming that he owned the part of the home that was on his property.  The Court rejected the ownership claims, finding that they were unfounded under Louisiana law. After finding that the property owner was in good faith and the neighbor failed to object for a number of years, the Court then granted a servitude over the neighboring tract to accommodate the encroaching structure in exchange for payment of the fair market value of the encroachment. The Bank was then able to foreclose.

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A title defect is something that causes title to land to be invalid or defective. Some examples are:

  • Documents that are legally void due to forgery, fraud, undue influence, duress, incompetency, or incapacity.
  • The failure of any person or entity in the chain of title to have authorized a transfer of the property.
  • A document affecting title that is not properly executed, witnessed, or notarized.
  • No right of access to and from the property.
  • A document executed pursuant to an invalid power of attorney.
  • A document that is improperly recorded or indexed in the public records.
  • Ownership claims by undisclosed or missing heirs in the chain of title.
  • Defects caused by an improper prior foreclosure.
  • The existence of undisclosed restrictions affecting your property.
  • The existence of statutory liens, including contractor’s, mechanic’s, or materialman’s lien for labor or materials that began on or before the policy date.
  • The failure of a prior owner to pay a mortgage, judgment, tax, or special assessment.
  • The failure of a prior owner to pay a charge by a homeowners or condominium association.

A title policy generally won’t cover the following types of issues.

  • Defects that are created after the policy is issued
  • Defects that you create or that you knew about.
  • Issues resulting from your failure to pay your mortgage or your violation of either applicable laws or restrictive covenants that you knew about.
  • Losses resulting from someone else physically occupying the land.
  • Claims from third parties who have rights because your property is near a body of water or has a river or flowing through it.
  • Losses caused by violations of building and zoning ordinances and other laws and regulations governing land use, land improvements or environmental protection.

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See Our Case Studies

Dual Assessment – property given 2 tax assessment numbers and sold

When property owners own multiple properties, they sometimes request the Assessor to issue a bulk assessment for them. To do so, the Assessor cancels the individual property assessment numbers and assigns a single ‘bulk’ assessment number to the multiple properties and bills accordingly. This, however, sometimes causes problems, as it… Read More

Encroachment – House Encroaching on Neighbor’s Property

The Firm recently resolved a lender’s policy claim involving the encroachment of a structure onto a neighboring tract. In this case, the property owner’s home encroached over the property line of her neighbor (her son). When the owner died, the loan fell into default, and the Bank commenced foreclosure proceedings.… Read More