Articles Posted in Property

farm-land-1558948-1024x768Imagine your property surrounded by land and water on all sides. Imagine that this land and water do not belong to you. To get to your own property, you use a wood trail, and you have used this trail regularly for four decades. But one day the surrounding land is sold, and the new owners want more privacy. They set up fences and “No Trespassing” signs to keep you off their property. Now your only access to your property is a public canal. Can the courts protect you? The Louisiana Third Circuit Court of Appeal (“Appellate Court”) intends to do so.

Nestled in St. Martin Parish near Herman Dupuis Road and buttressed by a public borrow canal is a piece of land known as the Ovide Daigle, Sr. Estate (“the DE Property”). This property has been co-owned by Harvey Altemus for over 55 years. Since that time, the land surrounding the DE Property has changed hands, and at the time of litigation, the surrounding land was owned by Helene Jeanne Boudreaux, Faye Guidry Hebert, Shelby Guilbeau, Michael Kidder (D/B/A Kidder Corporation), Michael and Phyllis Marks, and the State of Louisiana. Each of these individuals owned a separate piece of property surrounding Mr. A’ property. Except for Michael and Phyllis Marks (“the Markses”), the property belonging to the owners was previously owned by ALC Corp. The DE Property is almost completely landlocked by properties not belonging to its owner. In fact, the only pieces of the DE Property not surrounded by other people’s property is the area buttressed by the public borrow canal. Mr. A cannot access HD Road, the nearest roadway, without crossing another owner’s land or using the canal.

In 1974, the Markses allowed Mr. A to begin parking on their property, and ALC Corp allowed Mr. A to get into his land by way of  a 30 foot wide path that went over its land. This informal arrangement continued for 24 years until Mr. A learned in 1998 that ALC Corp planned to sell or donate its property surrounding the DE Property. On May 1, 2000, Mr. A and ALC Corp executed an “Access Permit” to give Mr. A official use of the path. ALC Corp then transferred all of its land abutting the DE Property to the State of Louisiana and sold several parcels of land bordering Herman Dupuis Road. The sale to Helene Jeanne Boudreaux (“Mr. B”) included reference to the Access Permit trail, even though this trail was not officially recorded at the time of execution. The rest of the property sold to Kidder Corporation, Shelby Guilbeau, and Faye Hebert were all made required to be subject to all previous servitudes and the like on the property. Mr. A continued using the trail until he met with Mr. B on this wood trail in 2010. After this meeting, Mr. B requested the State remove the Access Permit. The State agreed and sent a by sending Mr. A a letter to this effect. At this point, in 2011, Mr. A recorded the Access Permit, and Mr. B put up a fence blocking Mr. A’s access to his own property. Hebert and Guilbeau then put up signs on the property telling others entry was not allowed, blocking Mr. A’s opening to the trail. On September 4, 2013, Mr. A filed a Petition for Declaratory Judgment and for Damages against the State of Louisiana, Mr. B, Hebert, Guilbeau, and Kidder Corporation (the Markses were later joined in an amended petition) seeking a court recognition of the 30-foot trail as an apparent servitude giving Mr. A a right to cross the properties. Both the State and the Markses entered into Consent Judgments with Mr. A. The remaining property owners sought to strike these Consent Judgments. At trial, the court granted Mr. A his right-of-way and declined to award damages. Mr. B, Hebert, Guilbeau, and Kidder (collectively “Appellants”) appealed the decision of the Trial Court.

guernsey-cattle-1360068-1024x768Families. While often a source of love and comfort, families can at times be the source of much conflict. Sometimes the death of a parent turns siblings against one another rather than binding them together.  Greed can cause people to fight over insignificant or even imaginary problems. Such was the case for a large Allen Parish sibling group when they engaged in a legal battle over cows following the death of their mother.  A battle that the Louisiana Third Circuit Court of Appeal refused to engage in.

The Martin family of Allen Parish, composed of six siblings, owned a plot of land indivision with one another (basically, each person owns the property equally). Sister Sheila grazed cattle on the land. The cows might have belonged to the siblings’ mother before she passed however Sheila claimed the cows were solely her property. There was no proof of ownership either way.  The family troubles began when sister Linda and her husband Carlos moved onto the property. Sisters Sheila and Amy alleged Linda and Carlos would purposefully leave gates open so the cattle could escape. In one unfortunate instance, a cow and the three baby calves she was pregnant died after allegedly escaping the pen due to Carlos’ activities. Sheila and Amy also claimed that Carlos stole several gates, purposefully left harmful food out for the cows, and blocked with his car portions of the property.    

Sheila and Amy filed a lawsuit in the Judicial District Court for the Parish of Allen claiming damages for the lost cow and eventually sought to hold defendants in contempt of court for failure to move his car from the land.  The District Court denied the claim for damages and contempt but ordered the return of the stolen gates. An appeal was filed to the Louisiana Third Circuit Court of Appeal.

property-market-1223813-1024x683Louisiana practices many legal concepts not typically found in other states. One such concept is the “usufruct.” An “usufruct” refers to a right given from one property owner to another person named the “usufructuary.” The usufructuary does not own the property, but is free to use it as he or she pleases (short of destroying it). An example of this would be a business owner who names his friend as the usufructuary of the business, and that friend would be permitted to run the business.

The following case illustrates a common usage of the usufruct: transferring property from one spouse to another and ultimately to their children.

Joyce Helms was a pragmatic woman, who thought about what to do with her property in the event of her death. During her marriage to Bobby Helms, Joyce wrote a will in 1976, dictating that her property be given to Bobby as an usufructuary. Additionally, Joyce gave their three children Billy, Lawrence, and Robert the remaining property, subject to the lifetime usufruct of Bobby. It is common for spouses to name their other spouse as an usufructuary to their property, so that the surviving spouse can rely on the income generated by the property.

visual-construct-1545402-1024x686When you pay for a home to be built, it can be a stressful experience. That experience becomes even more stressful when you have fully paid for the construction of that home and the contractor ceases construction without even completing half of the construction. In such a situation, it takes an excellent lawyer to figure out who exactly is at fault for the failure to complete the job and how to get the money already paid back from the contractors.

Vernon Nicholas found himself in just such a situation when he paid for a house to be built in Ascension Parish, Louisiana and the builders stopped building after completing only approximately forty percent of the full construction project. They refused to complete the project or pay Mr. Nicholas back even though he had paid for the entire house to be completed. Luckily, Mr. Nicholas obtained a good attorney and was able to obtain a judgment against both the construction company, BBT Construction, and its manager, Ahmed Trench, individually despite the fact that neither showed up for the trial. Following an appeal by Mr. Trench contesting his individual liability, the Louisiana First Circuit Court of Appeal affirmed the trial court’s ruling.

Mr. Nicholas hired BBT to build his home and Mr. Trench signed the contract as the manager. Mr. Nicholas paid $332,418 upfront to BBT, which was the entire amount of the contract for the home. He also paid an additional $3,515 upfront for design fees. BBT completed about forty percent of the house before ceasing construction and refusing to complete the rest of the job. Having no other alternative, Mr. Nicholas filed a lawsuit to recover damages, costs and other expenses based upon the breach of contract and asserting unjust enrichment in failing to pay back the money taken for the full job. The contractors even refused to fix alleged defects in the construction.

home-1221234-768x1024It can be complex to determine the superiority of claims when a piece of property has a mortgage and various judgments against it. Superiority of claims means the order in which money is to be paid to different parties who are all owed money from the property or individual who owns it. Most people want their claim to be deemed more superior than others because it can help them receive money from the property before someone else, which is especially important in cases where there is a limited fund of money.

In 2009, the Lake Villas No. II Homeowners’ Association, Inc. (“Lake Villas”) obtained a judgement of over $37,000 against Elise LaMartina, for past due monthly dues and assessments, dating back over seven years, plus attorney fees, costs, and interests. When Lake Villas attempted to collect the judgment, it found that the condo had a conventional mortgage that was superior to its judgment. The record holder of the mortgage was Elisa LaMartina’s mother, Jane.  

In June 2013, Lake Villas filed a motion seeking the sheriff to seize and sell Elisa LaMartina’s condominium. It also filed an order for her mother to show cause why the mortgage should not be canceled or, alternatively, that the court to fix the amount of the mortgage. Lake Villas believed judicial determination of the existence and amount of the mortgage was necessary before there sheriff could sell the condominium. La. C.C.P. art. 2291.

moor-land-3-1500234-1024x683Having the town pave your road or conduct other maintenance may seem like a harmless occurrence. However, it can have a significant impact on determining whether your property can become public use.

One landowner, Thomas Bourque, Sr., needed access to the rest of his property, but two other landowners, Todd Gautreau and Gregory Scot Himel, resisted the idea that part of their lands would become public use in order for Bourque to access another part of his property.  Bourque needed to access the southern part of his property in Ascension Parish because a bridge he had previously used for access was no longer usable. Bourque wanted to use the Hanson Road servitude for access to that property. Gautreau and Himel, the landowners who had established the Hanson Road servitude in 1992, did not want any further construction of Hanson Road for that purpose.  The trial court declared the Hanson Road servitude to have been dedicated to public use with full access to Bourque. Himel and Gautreau appealed to the Louisiana First Circuit Court of Appeal. The First Circuit amended and affirmed the trial court’s judgment and concluded that the entirety of the 1992 servitude was tacitly declared as a public road.

Dedication of property for public use is done four ways:  statutory dedication, formal dedication, implied dedication and tacit dedication.  See  Melancon v. Giglio, 712 So. 2d 535 (La. Ct. App. 1998).   The formation of a public road may occur through a tacit order.  See La. R.S. 48:491 (2017).  

16-email-03-03-2019Double jeopardy is not a television marathon featuring Alex Trebek, but protection against it is fundamental to the United States legal system. In the criminal justice system, double jeopardy means being put on trial for the same charge twice; the Fifth Amendment to the United States Constitution bans it. Res judicata, Latin for “a matter already judged,” is the civil version of double jeopardy. It means that someone cannot be sued for the same reason under the same circumstances twice. In this case, the Louisiana Second Circuit of Appeal found that res judicata did not bar a landowner from suing his neighbors twice for the same cause of action, obtaining a right of passage from a public road to his property.

In 2006, Entrada Company filed suit against three neighboring landowners to obtain a right of passage, alleging that it had no access to a public road. This form of relief allows a landowner to pass over the land of another in order to access his own land. In March 2014, Entrada Company filed another lawsuit against the same defendants for the same cause of action. In April 2014, two of the defendants filed a motion to dismiss on the ground of abandonment, which the trial court granted. Because Entrada Company had not pursued the first lawsuit, the court dismissed it with prejudice, meaning that it could not be refiled.20

The issue in this appeal is whether this dismissal with prejudice of the first lawsuit precludes the second lawsuit on res judicata grounds. Res judicata precludes a second action when: the judgment is valid, the judgment is final, the parties are the same, the cause of action existed at the time of the first judgment, and the cause of action in the second action arose out of the same circumstances as the cause of action in the first action. See La. R.S. 13:4231 (2017).

69-Email-03-03-19-1024x512Zoning issues can seemingly arise out of nowhere and affect the way you choose to use your property. It is important to stay up to date with local zoning ordinances and have a good lawyer to guide you with upcoming projects or changes that may be affected. It is equally important to also be aware of what happens when zoning changes do affect, and even cancel, these projects. The Fifth Circuit Court of Appeal for the State of Louisiana addressed this issue when a Terrytown, Louisiana property was rezoned by the Jefferson Parish Council on December 12, 2007.

The Berrys purchased two adjoining parcels of property in 1998 and 2000, consisting of over four acres of land located in the Elmwood Subdivision and on Behrman Highway along the west bank of Jefferson Parish. This property was zoned as a Multiple Use Corridor District (“MUCD”), allowing for diverse commercial use of the land. On October 13, 2006, the Berrys and Volunteers of America, Inc. (the “VOA”) entered a purchase agreement to develop the property into a high-density, multi-level housing facility for the elderly. While the VOA made preparations for the project, the Jefferson Parish Council executed a zoning and land use area study that covered 23.67 acres, including the property owned by the Berrys.

The VOA project came to a halt due to a moratorium, an order of postponement, on the issuance of building permits for the area within the study, as required by the Parish Code. When the study came to an end, the VOA project ended as well; the study concluded with the Parish Council changing the zoning of the front portion of the Berry property from MUCD to C-1 (Neighborhood Commercial District), and the rest of the property zoned as R-1A (Single-Family Residential). Though the zoning changes were consistent with the Parish’s 2003 Comprehensive Land Use Plan, they were inconsistent with the VOA project.

downtown-salt-lake-city-2-1446473-683x1024Buying a home is a complex and stressful process. Not only must a homebuyer make sure he or she has the required funds to purchase the home, but must also thoroughly check that the home is in good condition. Generally, determining the condition of a home is relatively easy. Under the law, a home-seller is obligated to disclose certain defects. Failure to do so can result in a lawsuit. A recent case from the United States Fifth Circuit Court of Appeals illustrates the legal repercussions that can befall a home-seller when he or she withholds certain deficiencies in the condition of the home.

The case centers around a home purchased in Bossier City, Louisiana. The home-purchaser, Britney N. Jones bought a foreclosed house from Wells Fargo Bank (“Wells Fargo”). After purchasing the house, Ms. Jones discovered that it contained mold. The mold was discovered after an environmental assessment of the property. The assessment was undertaken because Ms. Jones’s children had developed respiratory and other health issues.

After discovering that the home she purchased contained mold, Ms. Jones brought a lawsuit against Wells Fargo alleging claims of redhibition and fraud. In Louisiana, a seller warrants a buyer against redhibitory defects. For a defect to be considered redhibitory it must render the thing useless or diminish its value in such a way that it could be presumed that the buyer would have not bought it or would have bought it at a much lower price. La. C.C. art. 2520 (2016). Defects that a buyer either knew of or that were apparent are excluded from the warranty of redhibition. When a defect is concealed within a home’s structure it is considered unapparent. See Amend v. McCabe, 664 So. 2d 1183 (La. 1995).

house-i-1491881-1-1024x768In law, deadlines and rules of procedure are very important. Good cases can be lost because someone missed a deadline or did not understand and follow a procedural rule. That is why it is so important to ensure you have a good attorney who understands the rules of procedure and who keeps close track of deadlines, especially those for appeals.

This importance is aptly illustrated by a recent decision from the Fifth Circuit Court of Appeal for the State of Louisiana. The case, Hawkins v. Willow Inc., involved 250 owners of homes located in the Village Green subdivision in Jefferson Parish. The homeowners sued several entities, including the developer of the subdivision and the insurer of their home warranties, alleging that the subdivision was built on land that was unsuitable for building and that the homeowners’ homes were damaged as a result.

Unfortunately for the homeowners, the warranty mandated arbitration of disputes, a step which the homeowners failed to take before filing suit. Because the homeowners failed to arbitrate their dispute, the trial court dismissed the home warranty company from the lawsuit and ordered arbitration of all claims. The homeowners did not seek review of the trial court’s ruling. Instead, the homeowners waited over two years to address the ruling. The homeowners then requested the trial court to grant them a new trial to pursue claims against the home warranty company and for the trial court to rescind its arbitration order because of newly discovered evidence. The home warranty company contested the homeowners’ requests. It asserted that the trial court did not have jurisdiction over the matter because the court previously dismissed the case. The trial court agreed with the home warranty company, ruling that it did not have jurisdiction and additionally denying the request for a new trial. The homeowners, displeased with the result, appealed the trial court’s decision.