Articles Posted in Property

46-1024x575Buying a house and later discovering that the house has foundational defects is a nightmare every homeowner seeks to avoid. Even more unpleasant is to find out that you do not have any recourse against the seller. The nature of such recourse would partially depend on when the defects were discovered, but also whether the seller is a builder, contractor, or manufacturer, because such a status might extend the timeframe of bringing in an action against the seller.

Penny Duplechien acquired a house from sellers Edward George Ackal and his wife in 2005. In 2012, Penny (plaintiff) discovered foundational defects and the next year filed a lawsuit against the sellers. In her cause of action, the plaintiff alleged that the defendants designed and constructed the house. In response, the defendants argued that even if they did construct the house (but they did not), plaintiff was late filing the lawsuit. This argument is based on the exception of peremption in the New Home Warranty Act (NHWA). This exception provides for only a five-year warranty for structural defect cases. La.R.S. 9:3144(A)(3).

In response, the plaintiff asserted that defendants should not even be allowed to use the five-year warranty limitation because Mr. Ackal supposedly lied to the plaintiff about being a licensed contractor. Specifically, the plaintiff said that the defendant purposely held himself out as a manufacturer, and thus it should not be her fault that she did not know better.

38-1024x678In Louisiana, if someone does work to your home and you find the work to have been completed unsatisfactorily, you have a one-year prescription period to bring the issue to court. However, what does one do if problems from this work do not appear right away? Considering the statute that allows a one-year prescription period at the first notice of damage, what exactly is noticing damage? Is it formally reporting the issue or simply remarking on an observation?  The Louisiana Fifth Circuit Court of Appeals recently decided a case on appeal from Jefferson Parish that answered such questions. 

In early 2010, Carlos Caballero Castro contacted Omar Oceguera from Triple OH Shoring, Inc. about fixing the elevation of the Caballero home. Mr. Oceguera recommended Keystone Custom Homes, LLC to Mr. Caballero, and as a result Mr. Caballero made a deal with Keystone to fix the elevation of the Caballero home. However, Mr. Oceguera would remain the general contractor of the project – he would design the foundation plan and Keystone would implement the plan. The work was completed on the home on November 20, 2010 and at the time the work was completed Mr. Caballero said the job was well done.

In January 2011, Mr. Caballero decided to build a deck on the back of his house. When he began to build the deck, he noticed there was two-inch dip in the slab – at the time Mr. Caballero rationalized the dip to simply be either the house settling or evidence of poor craftsmanship. However, Mr. Caballero stated that there was no apparent damage to his home at that time. A few days later, Mr. Caballero decided to call Keystone and inform them of the dip. He also told Keystone that since the work had been completed he and his family has heard popping noises, but that he thought these noises were a normal byproduct of the house setting. 

19-Picture-05-22-2019-1024x658The strip of grass between the street and the sidewalk seems harmless enough. Yet, when negligently maintained, it can pose a danger to the public. The case that follows helps determine who should be liable for such a defect when an injury occurs on that piece of property.

Edward Cusimano was delivering pizzas in the Parish of Jefferson. He stopped in front of the defendant’s house to deliver the pie to the neighbors across the street. He got out of his car, walked around to the passenger side to get the pizza, and stepped in a hole and was injured. The hole was on the grassy stretch of land between the road and the sidewalk. Mr. Cusimano filed suit against the Parish of Jefferson and against the owners of the property that had the “grassy hole” in front of it. The defendant property owners claimed that the area where the hole was located was public property and therefore, they were not liable for injuries that occurred due to a defect on that land. The plaintiff, however, claimed that they had a duty to maintain the property, as they owned the property in question. Mr. Cusimano claimed they should have been aware of the hole’s existence, as they had maintained that part of their property for many years. Because they owned the property and should have known of the defect, Mr. Cusimano claimed the defendant landowners should be liable for his injury. The trial court granted the defendant’s motion for summary judgment, as Mr. Cusimano failed to show that the defendants actually knew of or created the hole that caused his injuries. Mur. Cusimano appealed the trial court’s decision.

As the appeal was for the grant of summary judgment, the Louisiana Court of Appeal, Fifth Circuit would review the judgment from the beginning, or de novo. The Court of Appeal noted that “the party moving for summary judgment bears the burden of proof.” La. C.C.P. art. 966(C)(2). Therefore, Mr. Cusimano had the burden of showing that the defendants were liable for his injuries. 

couple-investment-key-1288482-1024x684Carrying a great deal of debt is a liability, and it may lead to some disastrous consequences. In the event of a default, your creditors can take you to court to recover the amount owed. If a judgment is made against you, your finances come under a microscope. Large transfers of money or property are strictly monitored and may even be reversed if your creditor feels the loss of the property may lead you to become more insolvent. So, what do you do when you have a large debt but need to transfer property? You need a good lawyer to navigate high debt situations, and to help you decide whether bankruptcy is the best way to avoid misfortune.

In the case of River Parish Financial Services, LLC v. London and B.W. Gill, River Parish won a money judgment against London Gill for a past due debt. River Parish was displeased to learn that London had gifted some of her property to B.W. Gill. Consequently, River Parish filed a revocatory action. The “revocatory action” entitles a creditor to annul a gift made by a debtor, if that creditor believes making that gift increases the debtor’s insolvency. See La. Civ. Code art. 2036. B.W. Gill claimed the action was barred by preemption. This simply means the period in which to contest the gift had lapsed. The gift was made in 2005, and River Parish did not file its action until late 2011. The trial court agreed, dismissing the action. River Parish appealed, arguing the prescriptive period should not have begun until the gift was recorded, and here the gift was not recorded in the public record until September of 2010.

On appeal, the Louisiana First Circuit Court of Appeal had to determine whether River Parish’s claim was indeed time-barred or not. The court looked at La. Civ. Code art. 2041, which states that the creditor must take action within one year of learning of the transaction, but no more than three years from the time of the transaction. River Parish’s argument was that the prescriptive period should begin running on the date the transfer was recorded, rather than the date it actually occurred.

apartment-architectural-design-architecture-1693946-1024x736Lease agreements are important documents that specify the rights and obligations of both lessor and lessee. Specifically, termination of leases must follow specified procedures and the tenant must be given adequate notice before leases can be terminated. That being said, does a letter from the lessor to the lessee constitute proper notice for termination of a lease? The Fourth District Court of Appeals of Louisiana recently held that a tenant was not given proper notice for termination of his lease and therefore, the termination was not valid.

In the aftermath of Hurricane Katrina, Kenneth Lobell, plaintiff, suffered extensive damage to property that he leased from Cathy Rosenberg and 2025 Canal St., L.L.C. On December 28, 2007, Rosenberg sent a letter to Lobell stating that he had defaulted on certain lease payments for a three-story building located on 2025 Canal Street. Rosenberg subsequently sent letters on January 31, 2007 and February 12, 2008 regarding these defaulted payments. The letters also stated her desire to terminate the lease. After a bench trial, the trial court judge held that there was a proper termination of the lease and Mr. Lobell owed certain costs and back payments to Rosenberg and 2025 Canal St., L.L.C.

The Fourth District Court of Appeals of Louisiana disagreed with the trial court and held that the lease was not properly terminated. Because leases are contracts between lessor and lessee, they afford certain rights and obligations to each party. See La. C.C. 2668. Lessees must pay rents for the property according to the terms of the lease agreement, among other obligations. See La. C.C. 2683. When a lessee does not pay rent, a lessor has two options: 1) obtain a money judgment based on the amount owed or 2) cancel the lease. See Richard v. Broussard 495 So.2d 1291, 1293 (La. 1986). To terminate a lease, the lessor must follow specific eviction procedures. These procedures include giving a five-day notice to vacate, followed by judicial procedures to effectuate an eviction. See La. C.C.P. art. 4701; see also La. C.C.P. 4731; see also La. C.C.P. 4733.

34-Email-3-13-19-1024x683In the Parish of Plaquemines in Louisiana, the oyster business can be quite profitable. Anywhere in the state, land can be a method of maintaining a person’s livelihood, whether it be through oil, tourism, or even an oyster lease. When a person with valuable land passes away, especially if that person is your relative, you may be curious as to how the death will affect claims to the land and its profits. One family found out when the courts were forced to interpret the law of community property as it relates to oyster leases.

Sometime in the 1960s, Antoinette Bernice Cognevich Barrois (“Bernice”) and her husband, Mancil Barrois (“Mancil”) executed oyster leases. Mancil died in 1975 and left Bernice all of his property in his will. Because Mancil had children outside of the marriage, some children could benefit from Mancil’s estate with no claim to Bernice’s estate. Bernice maintained the oyster leases, including renewing them, for six years after Mancil’s death. When Bernice died in 1981, the administrators of her estate continued to maintain and renew the oyster leases. Neither Mancil’s nor Bernice’s estates were ever closed after their deaths, and in 2014, the administrator of Bernice’s estate, Helen, received a damage award from the 2010 BP oil spill as it damaged the oyster lease property. Mancil’s estate then filed motions seeking to declare the oyster leases as community property and seeking some of the award money pursuant to this decision. Although there were multiple procedural complications with this case, the only issue the Appellate Court was concerned with was whether or not the oyster leases obtained during the marriage of Mancil and Bernice are community property under Louisiana law.

Generally, property acquired during the existence of a legal marriage is considered community property, unless there are special circumstances that make the property separate property belonging to only one spouse. La. C.C. art 2338. This includes any “natural and civil fruits” of all community property. The spouse arguing against community property requirements does have the ability to rebut this presumption. La. C.C. art. 2340. Crucial here is also the Louisiana statute barring a renewal or extension of existing oyster leases to be considered “‘new” leases. La. R.S. 56:426.

47-Email-03-13-19-Image-1024x795When most people think of filing a lawsuit, they expect to attend a trial in a court where a judge and jury decide the outcome of the case. However, most of the time cases are decided long before a trial is reached. One of the legal mechanisms for ending a lawsuit before it reaches trial is called a Motion for Summary Judgment. A summary judgment motion allows a party to ask the court to rule in their favor on a particular issue as a matter of law. The court may grant the motion if the parties are in agreement as to the important facts of the case and if the party that is making the motion is legally entitled to prevail on the claim in question. As this case demonstrates, a summary judgment motion can be an effective tool for ending a lawsuit, so when should you ask for summary judgement in a personal injury case?

Javonna Rayfield was staying at the Millet Motel in LaPlace, Louisiana on August 29, 2012, when Hurricane Isaac made landfall and created wind speeds reaching 100 mph. At around 5:00 a.m. Ms. Rayfield was awakened when the ceiling and walls of her room fell on top of her. Ms. Rayfield was taken to a local hospital, where she was treated for her injuries. Later, Millet found that a fire door down the hallway was buckled and the hasp lock was dangling and that the high winds had caused a concrete block wall on the floor above to collapse. The concrete blocks fell above Ms. Rayfield’s room, causing the ceiling and wall to buckle and fall.

Ms. Rayfield brought a lawsuit against the Millet Motel and its insurer, United Fire & Insurance Company (“Millet”). She alleged that the premises in the motel were defective and that Millet knew or should have been aware of the defective conditions. Ms. Rayfield filed a summary judgment motion, asking the court to conclude that there was a defective condition on the premises and that this condition was what caused her injuries. Millet similarly filed a summary judgment motion, asking the court to find that Ms. Rayfield’s injuries resulted solely from Hurricane Isaac. The trial court decided in Millet’s favor by granting their summary judgment motion and denied Ms. Rayfield’s motion for partial summary judgment, a decision which Ms. Rayfield appealed.

farm-track-1375641-1024x683The transfer of property can create many legal pitfalls for clients. In this case, the plaintiff, Willow Chute Farms L.L.C, (“Willow”) based in Bossier Parish, alleged that the transfer of a right of way to the defendant, George McLemore (“McLemore”), was defective. The issue arose due to a 1984 agreement from prior owners of the properties that stipulated a set boundary between the two portions of land. In this agreement was a right of way, or servitude, which permitted the defendant, Mr. McLemore, to use the plaintiff’s gravel road to access his own land. So, how can you make sure your property line and your drive way are protected?

In November 2012, the McLemore’s acquired property adjacent to Willow Chute Farms by a cash sale deed. The deed stated that the property was conveyed “together with all and singular the rights of way, servitudes, easements, appurtenants, pertaining thereunto … unto Buyer and Buyer’s heirs, successors and assigns forever.” The servitudes and rights of way to the property were described in the original 1984 deed of transfer with the specific provision that the deed “reserves unto himself, his heirs and assigns, a right of way, and or servitude, for purposes of ingress or egress across the [.31 acre triangular tract of land].”

Later in 2012 and into 2013 Willow filed two lawsuits: (1) alleging that the servitude, or right of way, had not been in use by McLemore for more than 10 years; and (2) that the property line should be adjusted to reflect the old fence line. To justify the second suit, Willow alleged that the old fence had separated the two tracks of land for more than 30 years, and its “ancestors in title maintained continuous, uninterrupted, peaceful, and public possession up to the fence line for more than 30 years.” The trial court consolidated these two cases into one.

utility-truck-1239978-1024x446Property owners have a duty to keep their property safe against unreasonable risks of harm to those who are invited onto the premises. However, if a potential risk is “reasonable” is a matter of debate. If the hazard in question is obscured, the owner may be liable. But if the hazard is glaringly obvious, it may be the fault of the injured party. The discourse as to what constitutes “open and obvious” is at the heart of this case.

Virgil McCoy was a Cleco employee doing some routine maintenance on an electrical meter in Rosepine Apartments I when fate struck. In an effort to access the meter, McCoy had to walk a narrow path behind a row of overgrown bushes and stand precariously close to an uncovered water meter just to begin the repairs. As he worked, his left foot slid backward and he fell into the hole where the water meter sat. McCoy, and his employer Cleco, filed a lawsuit against Rosepine Seniors Apartments Partnership, their insurers, the property managers, and even the Town of Rosepine, for liability for McCoy’s injuries (collectively called “Defendants”).

The Defendants countered by claiming the hazard the meter presented was “open and obvious,” and McCoy should have been aware of the danger. They moved to have the case dismissed by filing a motion for summary judgment. Summary judgment is when the court decides for one party without a full trial. When the court examines all the information submitted for trial up to that point, e.g. the complaint, the defendant’s answer, items procured in discovery, affidavits, depositions, etc., and finds there is no genuine dispute of fact between the parties, summary judgment is entered. La. C.C.P. art. 966. The one who bears the burden of proving there is no dispute is not so clear-cut. One thing to note is that the party filing the summary judgment motion does not need to show all the elements of the other party’s case are insufficiently proven, but only that one or two elements cannot be met with the evidence presented. The burden then shifts to the other party to show those elements can be met. According to Defendants, McCoy’s complaint failed to meet one particular element of La. C.C. art. 2317.1: whether the hazard presented an unreasonable risk of harm. The Defendants succeeded in their motion, and the trial court dismissed the case via summary judgment.

tyler-butler-691603-unsplash-1024x683It is one thing to own land, but it is another thing to know what rights come with that ownership. Without the help of a good lawyer, a misunderstanding of property rights could put you in court for trespassing–or worse. For instance, it might be important to understand if installing a pipeline on land protected by conservation restrictions is allowed. This issue was addressed in 2016 when some land in Iberville Parish because of the subject of a dispute between two companies.

The land at issue referred to as “Section 12,” which was located in a Mitigation Bank. Before 1999, Lago Espanol, LLC (“Espanol”) owned the rights to excavate the land for minerals and rights to the property’s surface. In 1999, Espanol entered into an agreement with several state regulatory bodies to form the Mitigation Bank. As part of the agreement, Espanol placed certain restrictions on the use of the land through a conservation servitude. In Louisiana, a conservation servitude requires the owner to “retain or protect the property’s natural, agricultural, scenic, or open-space values through the protection of its natural resources, air, and water quality, and historical, archaeological, or cultural aspects.” La. R.S.9:1272.

In 2006, Rio Bravo Energy Partners, LLC (“Rio Bravo”) obtained a lease for the mineral rights of Section 12 from Espanol. In 2009, Spanish Lake Restoration, LLC (“Spanish Lake”) obtained Section 12’s surface rights. Two years later, Petrodome St. Gabriel II, LLC (“PD”) acquired Section 12’s mineral rights and a wetland permit from Rio Bravo, which allowed Petrodome to board the pre-existing, unimproved roads in Section 12. PD boarded the roads, and made other improvements to the plot of land.