Articles Posted in Property

by

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.

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

more-apartments-1451930-1024x672In contracts for the sale of land and property, parties typically execute a Purchase Agreement before the Contract of Sale. The purchase agreement may be incorporated with the contract of sale, or it may be a preliminary document that is not included in the final contract. It is important that a good attorney draft both of these documents, because issues may arise when the documents conflict or are not clear in intent.

In Woodlands Development v. Regions Bank & Johnson Property Group, Woodlands, a development company, bought land on Sandra Drive in New Orleans for the purpose of building an apartment complex. Woodlands fell on hard times and defaulted on the loan for the mortgage. After some extensions and agreements, Woodlands agreed to assign the property to a third party, Johnson Property Group (“JPG”). A Purchase Agreement, and then a Contract of Sale, between Woodlands and Johnson Property Group followed. When Hurricane Katrina caused extensive damage to the property in question, the insurance company paid the settlement to Regions Bank. Woodlands claimed it was entitled to receive these proceeds, while JPG claimed the proceeds should go toward its balance.  

After an epic battle which consisted of three appeals, and multiple motions, the Louisiana Fifth Circuit Court of Appeals affirmed the grant of a partial summary judgment motion for Woodlands Development. Summary judgment is appropriate when there is “no genuine issue of material fact,” meaning all the facts presented clearly show one party deserves to win. La. C.C.P. art. 966. Here, the party moving for summary judgment only had sufficient facts to convince a judge that some of the issues required dismissal, so a motion for partial summary judgment was put forth. JPG appealed the Trial Court’s finding in favor of Woodlands’ motion, which is the issue in the present case.

Continue reading

by

tigers-2-1528804-1024x683The taking of property by the government under the power of eminent domain is an issue that can be contentious for many landowners. When this does happen landowners are entitled to just compensation. For one Louisiana man with property near the Superdome and across the street from St. Joseph’s Church, the power of eminent domain became very personal.

The Board of Supervisors of Louisiana State University (“LSU”) took land from Michael Villavaso for the purpose of building a new academic medical center. While the medical center has since been built, Mr. Villavaso was not satisfied with the compensation that he received for the property. Mr. Villavaso claims that the appraised value of his property was $247,000 ($33.00 per square foot), but he only received $172,000 from LSU. The appraisal for Mr. Villavaso was done by certified public account Charles Theriot, who had also done multiple appraisals for LSU related to the building of its academic medical school. Due to this difference in price, Mr. Villavaso sued LSU in civil district court in New Orleans demanding just compensation.

While his lawsuit was pending, LSU proceeded onto Mr. Villavaso’s property, demolishing multiple structures, and depriving Mr. Villavaso of income received from the parking at the location. This led Mr. Villavaso to adjust his claim and demand additional compensation, including lost income of $144,818.

Continue reading

by

barren-land-1177515-1024x683If you ever inherit land from a relative, it may be wise to investigate if anyone else has a claim to it. There may be a co-owner in the shadows waiting to sell it.  

Thirteen Plaintiffs claimed they were the heirs of the Willie Smith, the original owner of a property in Claiborne Parish, Louisiana. The plaintiffs alleged that none of them were served with process in a licitation lawsuit surrounding the property or were notified of the 2010 action. A licitation suit is a term used in Louisiana law to mean the process of partitioning property at an auction where the land is owned by multiple people. In 2010, LEWLA, LLC had filed a licitation suit to divide this disputed piece of land in Claiborne Parish. LEWLA’s lawsuit resulted in a judgment and sale of the land in 2011 to LEWLA. The plaintiffs sought to declare this judgment and resulting sale of the property as legally void (“nullity”). Plaintiffs also alleged a charge of “ill practice” by LEWLA in withholding known addresses or misleading the assigned attorney regarding any information about the absentee persons.

Under the Louisiana Civil Code, the rights of ownership in property is transmitted upon the owner’s death to his or her successors. La. C.C. art. 937; La. C.C. art. 938. Those successors may then exercise the rights of ownership to the property of the decedent’s estate. All informalities of legal procedure connected with any sale of real property are subject to a two-year statute of limitations from the time of the sale. La. R.S. 9:5622. Further, final judgments are annulled if rendered against a defendant who has not been served with process as required by law.  Louisiana law also requires an appointment of a curator attorney when the case involves ownership in property by an unopened succession or absentee nonresident.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Berniard Law Firm
JUSTIA Law Firm Blog Design