Articles Posted in Real Estate

les-landes-mauriac-france-1492015-1024x768This is a continuation of a previous post on the “DE Property,” an enclosed estate in St. Martin Parish.

Where there is an enclosed estate, which is a property that cannot get to a public road, Louisiana law allows the owner of the estate to force an adjoining property owner to allow them to cross their property. La. C.C. art. 689. That passage usually has to be taken in the shortest manner across the other person’s property. La. C.C. art. 692. Once a trial court determines the choice of route that should be granted, any review by an appellate court is a manifest error standard. May v. Miller, 941 So.2d 661 (La. Ct. App. 2006).

A consent judgment is a functional contract between two parties that puts an end to a lawsuit. Plaquemines Par. Gov’t v. Getty Oil Co., 673 So.2d 1002 (La. 1996). Because it is a contract, a consent judgment has no effect on a third party unless otherwise provided by law. La. C.C. art. 1985. Louisiana public policy encourages settlements, including by consent judgments. Domingue v. Luke Fruge, Inc., 379 So.2d 490 (La. Ct. App. 1979). Louisiana law also recognizes that a consent judgment may not be attacked through an appeal of a collateral judgment, as an appeal is inappropriate for relief from a consent judgment. Lee v. Marksville Ford L/M, Inc., 741 So.2d 122 (La. Ct. App. 1999). A consent judgment can only be attacked collaterally for the reasons listed in La. C.C.P. art. 2002.

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.

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).  

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.

fiji-islands-1370935-1024x741Imagine buying land and then realizing that it was already occupied. What can the purchaser do when faced with this situation? What rights do the occupants of the purchased land have? Recently, the Third Circuit Court of Appeal for the State of Louisiana addressed these questions when deciding whether Saline Lakeshore, LLC (Saline Lakeshore) owned Horse Island after it purchased the property.

It all started in 2013 when Saline Lakeshore purchased Horse Island, which is land near the Saline Lake and Saline Bayou in Avoyelles Parish. At the time of the purchase, four individuals, Marlon Littleton, Buddy Cannon, Frank Morace, and Eric Morace, lived on the island in “camps.” These camps were housing structures which the four used to float to Horse Island. These houseboats were built in a way to float whenever Horse Island flooded, which was a frequent occurrence. When the island was not flooded, the four occupants would take care of the dry land by clearing and maintaining the camp yard. Additionally, the four occupants built docks, sheds, pavilions, roast pig cookers, fish skinning rocks, and water wells on the property. All of these improvements occurred prior to Saline Lakeshore purchasing Horse Island.

After buying the property, Saline Lakeshore sent Littleton, Cannon, and the Moraces a letter requesting that they remove themselves and their property from the island. Littleton and Cannon filed a possessory action against Saline Lakeshore, as did the Moraces. A possessory action is an action to stop the disturbance of property one possesses. To establish a possessory action, one must prove: 1) person had possession of the property, 2) the possession was uninterrupted for more than a year prior to disturbance, 3) the disturbance was a recognizable disturbance under Louisiana law, and 4) the action was instituted with a year of the disturbance. La. C.C.P art. 3658 (2016). The two separate actions were consolidated into one action for efficiency. Littleton, Cannon, and the Moraces then filed for summary judgment. The trial court granted the motion for summary judgment finding that the four occupants satisfied the requirements under Louisiana law. Summary judgment is when a trial court decides a case before it goes to trial. To obtain a summary judgment, both sides must agree on the material facts of the lawsuit. The trial court then makes the determination of the law, granting judgment to one side.

cross-1442009-987x1024Sometimes procedural rules are overlooked as merely a peripheral aspect of a lawsuit. However, nothing could be further from the truth. Oftentimes you need to overcome numerous procedural hurdles just to reach the merits of a case. The following case illustrates the importance of procedure in the practice of law.

The subject of this case centers on certain events that took place after the death of Alma Payton in New Orleans, LA; the plaintiffs are Payton’s heirs. Plaintiffs argued that Lake Lawn Park, Inc. (Lake Lawn) and Lawyer’s Title of Louisiana, Inc. (Lawyer’s Title) was negligent in connection with the distribution of Payton’s property after her death. Plaintiffs alleged that Lawyer’s Title failed to disburse payments to Lake Lawn that were intended to cover Payton’s burial. As a result, Lake Lawn moved Payton’s remains to a burial ground designated for indigents.

Eventually, Lake Lawn returned Payton’s remains to the original burial place at its own cost and the lawsuit against it was dismissed. However, the lawsuit against Lawyer’s Title was still pending, although not making any progress. As a result, Lawyer’s Title filed a motion to dismiss the action as abandoned nearly eight years after Plaintiffs filed their complaint. The District Court granted Lawyer’s Title’s motion. Subsequently, Plaintiffs filed a motion for devolutive appeal of the order of dismissal.

house-1188265-1024x683In Louisiana, a victim of fraud can recover actual damages resulting from the fraud, treble damages up to three times the amount of actual damages, and reasonable attorneys fees and costs. However, this potentially large recovery is barred by a peremptory period if the defrauded party doesn’t bring the lawsuit within one year. In certain cases, the issue of when exactly this one-year timer starts can be dispositive. The following case dealing with two real estate transactions illustrates the point.

Here, Amanda Adcock owned a home in West Monroe, Louisiana. Ms. Adcock lost her job and was unable to make her monthly mortgage payments to JP Morgan Chase (“Chase”). As a result, Chase initiated foreclosure proceedings against Ms. Adcock’s home in August 2011. Shortly afterward, Ms. Adcock filed for Chapter 13 bankruptcy, which halts any foreclosure already in process. Ms. Adcock then listed the home for sale as part of the bankruptcy estate. At the time of the bankruptcy, Ms. Adcock owed Chase $195,842.29.

In January 2012, Shane Wooten, a real estate agent, contacted Ms. Adcock and informed her that her home could be taken out of the bankruptcy estate and listed as a short sale. Three months later, Ms. Adcock wrote a letter to Chase to begin the short sale process and Chase cooperated (bank approval is required before a short sale can be completed). In June 2012, Tracy Ginn, the spouse of one of the real estate agents who worked for the same realty company as Mr. Wooten, offered to buy Ms. Adcock’s home for $190,000.