What Does Predial Servitude, Acquisitive Prescription and Precarious Possessor, mean in Louisiana?

paris-1452311-1024x768Residents of Louisiana may sometimes feel like there is no other place quite like their home state, but as a recent case out of Vermillion Parish demonstrates, when it comes to the laws regarding land and property, Louisiana truly is one-of-a-kind. Thanks to Louisiana’s history with the Napoleonic Code, Louisiana residents deal with legal issues other State residents never face, such as servitudes, usufructs, and acquisitive prescription. The following case out of Vermillion Parish caused the Louisiana Supreme Court to settle a land dispute by analyzing if a proclaimed landowner qualified as owner of the disputed land through acquisitive prescription and along the way provides some insight into how those terms are defined under code.

The land dispute revolves around the Boudreaux family (BF) and the Cummings family (CF). BF was seeking acknowledgment of a predial servitude (right of way) by virtue of acquisitive prescription (acquisition of ownership or other real rights in movables or immovables by continuous, uninterrupted, peaceable, public, and unequivocal possession for a period of time) and an indefinite ruling stopping CF from obstructing their access to the property. BF claimed his family had been using a pathway and gate to access the land next door that belongs to CF since 1948. BF used the right of way to transport farming apparatus and to easily enter the road next to it. In 1969, CF asked BF to move the right of way, but BF ignored the request and continued using the right of way until the CF put a lock on the gate in 2012 and prevented BF’s use.

At the trial court level, CF contended BF was a precarious possessor, thus incapable of possessing the land or having acquisitive prescription run in his favor. A precarious possessor possesses with the permission of or on behalf of the true owner or possessor, a precarious possessor thus does not intend to own the thing he detains. Under Louisiana law, in order for one to truly claim ownership of property, they must not only have possession, but also have proper animus, or the intent to own the thing. The trial court disagreed with CFs argument, and ruled BF acquired the right of way over the CF estate by acquisitive prescription. The court of appeal affirmed the judgment. Cf was unhappy with those decisions so he appealed once again to the Louisiana Supreme Court.

The Louisiana Supreme court first looked at the applicable statutes which define property rights in Louisiana.  The Court held that Louisiana Civil Code Article 740  provides “Apparent servitudes may be acquired by three different methods:  by ownership of the land, by decreed of the person who owned the land, or by acquisitive prescription,” while Civil Code Article 742 discusses when the laws of acquisitive prescription are applied to apparent servitudes. An apparent servitude may be acquired by simply taking over the property if you believe it is your property and making use of it as you believe it is yours for ten years, or by uninterrupted possession for thirty years even though you do not have title to the property and you know it is not yours. Thus, BF could acquire the right of way by acquisitive prescription, but the question turned to when the prescription began to commence, and if BF would be subject to the ten year or thirty year prescriptive term.

The Louisiana Supreme Court next turned to Civil Code Articles 3477 and 3478 in analyzing this land dispute. Article 3477 does not allow for acquisitive prescription in the case of a precarious possessor while Article 3478 allows for the precarious possessor to begin acquisitive prescription by telling the person whose land he is using that he know intends to possess the land as if it is his own. Thus, according to the Supreme Court, the only way a precarious possessor such as BF could have acquisitive prescription run in his favor was if he gave notice to CF that he intended to use the right of way for himself.

The Supreme Court found BF to be a precarious possessor as he was only using the right of way under the good graces of the CF Family. At no point did BF perform an action that would have given CF notice that his possession of the land was in jeopardy, or that BF had an intent to take possession of the land. BF’s continued use of the right of way does not qualify as proper notice. A precarious possessor such as BF must make it clear to the previous possessor that he now fully claims possession of the property. Since BF never performed such a clear and adverse action, the Supreme Court held that acquisitive prescription never began to run for BF, and he had no legal claim of possession of the right of way that still belonged to CF.

The land dispute between BF and CF highlights the intricacies of Louisiana’s complicated land laws. If you are a Louisiana resident and have a question concerning property or a property dispute, reach out to a qualified Louisiana attorney who can help solve your issue.  


Written by Berniard Law Firm Blog Writer: Stuart Theriot

Additional Berniard Law Firm Articles on the Boudreax and Cummings Property Disputes: Can a Second Trial Occur if Newly Found Witnesses Show Up After the First Trial?

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