Articles Posted in Property

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flood-1399662A redhibitory defect is a problem with an article that renders it useless to the buyer. In Louisiana, although a seller owes no warranty for defects that are known to or should have been discovered by the buyer at the time of the sale, a seller does, by operation of law, warrant the buyer against redhibitory defects (La. C.C. art. 2520.) Therefore, a buyer is permitted to rescind the sale of an item or piece of property if that item has a redhibitory defect.

In November, 2012, Courtney and Elizabeth Hancock purchased a 100-year-old home in the Historic Highland District of Shreveport. On the property disclosure form, the sellers, Bryan Lauzon and Akram Abdalla, indicated that there was no history of flooding on the property. However, the sellers, who themselves had bought the property in 2011, experienced flooding on the property that prompted them to install an outdoor sump pump in the backyard to mitigate future water intrusion. The Hancocks obtained a professional inspection of the property prior to closing, but the inspection report made no mention of evidence of flooding or even the existence of the sump pump. The Multiple Listing Service report, which the buyers inspected prior to the purchase, did note that a sump pump had been installed.

Shortly after the Hancocks moved into the house, their entire backyard flooded after a thunderstorm. Over the next several months, the flooding repeated eight times. In March, 2013, the Hancocks hired a contractor to build a garage at the rear of the property. During excavation, the contractor found an 8-inch French drain and concrete drainage pipe that had not been visible before digging. This discovery led the Hancocks to file a lawsuit against the sellers seeking a rescission of sale. Both parties filed motions for summary judgment in the trial court. The court granted the sellers’ motion, and the Hancocks appealed to the Second Circuit Court of Appeal.

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In Louisiana, you cannot “disinherit” your children. What does this mean exactly? It means that upon death, Louisiana law will allow a decedent’s children to share in his or her estate, even if the decedent left those children out as beneficiaries. The left-out children are called “forced heirs,” and will take a portion of the decedent’s estate (called the “legitime” or “forced portion”) unless the decedent has a just cause for leaving them out. La. C.C. art. 1494. A recent case of the Louisiana First Circuit Court of Appeal describes the rights of forced heirs to take in a decedent’s estate.

This case arose out of the death of Geronimo Ji Jaga, and the division of his annuity account at Western National Insurance Company. Mr. Ji Jaga had five children from various marriages: Shona Pratt, Hiroji Pratt, Nikki Michaux, Kayode Ji Jaga, and Tkumsah Geronimo Jaga. He named his eldest two children, Shona and Hiroji (“the Pratts”), as the beneficiaries to the annuity. After Mr. Ji Jaga’s death, one of his surviving spouses – Jojuyounghi Cleaver – filed a lawsuit in the Parish of St. Mary against Wester National alleging that her son, Kayode, should be considered a forced heir and entitled to share in the annuity.

In response, Western National filed asserted that the Pratts, the named beneficiaries of the annuity, should be joined in the lawsuit. After Mrs. Cleaver amended her petition adding the Pratts as defendants, the Pratts filed, among other exceptions, a peremptory exception of no cause of action. Tkumsah’s mother, Laila Minja, later filed a petition to intervene. She claimed that Tkumsuh was also a forced heir. The Pratts filed the same exceptions against Mrs. Minja as they did against Mrs. Cleaver. The Trial Court sustained the Pratt’s exception of no cause of action and dismissed Mrs. Cleavers’ and Mrs. Minja’s claims. The Trial Court considered the Pratt’s other exceptions as moot. Mrs. Cleaver and Mrs. Minja appealed the Trial Court’s judgment.

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Pollution
Louisiana has a storied history with oil and gas drilling. Tracts of land have been drilled all over the state in search of black gold. Typically the oil and gas companies are liable to clean up any pollution and restore the land as it was pre-drill when they are finished extracting minerals from the earth. So what happens if you purchase property that was once mined for resources but was not properly restored.  Do you have a right to go after the driller to clean up the pollution?  The following case out of St. Martin Parish discusses that question in the context of the “subsequent purchaser” rule and a lack of assignment of rights when the property was transferred.

Vincent Bundrick owned land that was previously leased to oil companies that located in St. Martin Parish. Prior to Bundrick’s ownership of that land it was subject to oil and gas drilling. Bundrick alleged that the companies who drilled on the land contaminated the property and therefore he filed a lawsuit against those companies seeking restoration of the property to its original condition and further damages.

The Defendants disputed the allegations of Bundrick and subsequently filed a motion for summary judgment stating that Bundrick had no legal right to bring such claims.  Essentially a motion for summary judgment is a legal filing wherein one party seeks to avoid a trial by arguing that there are no facts in dispute as to the specific legal issue which that party believes should allow them to escape liability.  In this case the Defendants argued that the “subsequent purchaser” rule in Louisiana did not allow Bundrick any legal right to establish claims against them.  The trial court held a hearing on that motion and ruled in favor of the Defendants.  Bundrick believed the ruling was incorrect and appealed the decision to the Third Circuit Court of Appeal for the State of Louisiana.

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IMG_1055-e1477861245822-768x1024When land is expropriated by the government, there are many questions concerning how much money the government will owe you. Courts consider factors such as the appraised value of the property, relocation costs, inconvenience, and other possible damages. See La. Const. art. I, §4(B)(5). The best lawyers are familiar with the different approaches the court could use to determine the amount of damages and are prepared to get the best results for their client. A recent case from the Louisiana First Circuit Court of Appeal highlights several different approaches than can be taken by a court in deciding land expropriation damages.

In 2008, the City of Baton Rouge and the Parish of East Baton Rouge expropriated a portion of land on which Baton Rouge Rentals & Sales was located. In this property taking, the city took 0.101 acre of land (4,380.9 square feet) and the business was forced to close their doors and vacate the building. Fifty-one percent of the property was owned by two sisters, Charlene McDonald Nelson and Kathleen McDonald, and forty-nine percent was owned by an employee of Baton Rouge Rentals & Sales, Connie Hyde. The original owner, Charles Hyde, transferred the forty-nine percent to Hyde shortly before he died. Hyde paid rent to the sisters and continued to operate the business until 2008.

The government contended that the total expropriation value of the property was $143,205, a value determined by a court-approved appraiser, Sharon Pruitt. There are three ways to determine the expropriation value of the property before the taking: cost approach, sales approach, and income approach. The cost approach values the taken property based off similar properties. The income approach determines the value by future potential income from the property. And the sales approach, the approach accepted by the trial and appellate courts, is the estimated cost of replacement after the improvements plus the value of the land. The sales approach generated a “before expropriation value” of $329,000 for the property, the income approach was $322,000, and the cost approach was $335,000. In Ms. Pruitt’s expert opinion, the sales approach was the best value determination for this property.

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Some cases have a countdown clock attached to them. The question is, when does that clock start? Is it when the damage happens? Is it when the other party is certainly aware of the damage? The courts must consider the facts in each case to be sure that the prescriptive period, or time frame, has not passed.

A case arising out of the State of Louisiana Second Circuit Court of Appeal considers whether the defendants should be permitted to exercise the exception of prescription to bar the plaintiff’s claim against him. The trial court denied the exception, and this appeal followed.

The plaintiffs, Glen and Delia Blevins, owned a piece of property in Webster Parish, which was neighbored to the west by the defendants’—Patrick and Annette Matthews—land. A saltwater pipeline ran through the defendants’ property near the border it shared with the plaintiffs’ property. On June 10, 2011, Mr. Matthews was operating a bulldozer on his property when he damaged the pipeline, which later led to a saltwater spill. The defendants were not aware of the spill right away, partly because Mr. Blevins was recovering from knee surgery at the time. The pipeline was repaired, and the damage to the defendants’ property remediated immediately after.

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oil-1441845-768x1024A recent case arising out of Tensas Parish, Louisiana, highlights the importance of checking on leases that burden any land before purchase. “Legacy lawsuits” are claims that oil and gas operations caused contamination on a property and generally name any operators who worked at the property and could have contributed to the contamination. In this aspect, the case out of Tensas Parish is no different. This case involves a legacy lawsuit where landowners purchased a property in 2002, but the property was subject to mineral leases/servitudes as early as the 1940s by different oil and gas companies.

In the case, the current landowners claim that their land was contaminated by the oil and gas exploration and production activities conducted or controlled by the oil companies.  The landowners sought to collect damages from the companies to restore the property to its pre-polluted state. They also asserted that the contamination was a result of the companies using the land for waste disposal and classified the pollution as a continuous tort. The appellate court disagreed with the position of the landowners, affirming the trial court, and cited Louisiana case law in support. See Marin v. Exxon Mobil Corp., 48 So. 3d 234 (La. 2010).  The Marin case states that a continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act. The Court held that the alleged damage to the land occurred prior to the landowners purchasing the property.

Usually, the owners of land burdened by mineral rights and the owner of a mineral right must exercise their respective rights concurrently with reasonable regard for those of the other. See La. R.S. 31:11. One cannot exercise their rights to the exclusion of the other; however, if the mineral lessee has acted unreasonably, excessively, or without reasonable regard for the landowner’s concurrent right of use of the land under the lease, then the landowner of the servient estate may seek redress to restore their right of use.

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Imagine that you and your spouse have spent years planning, waiting, and paying for the construction of your new home. Upon its completion, you excitedly move in, relieved that the wait is over and that you no longer have to stay in a little trailer next to the construction site. Things are great for the two of you. However, in the eight years that follow, a list of complaints about your newly built home grows longer and more serious. To name a few, the rooms are rotting, doors are sagging, the sheetrock is cracking — and, just like that, your dream home has become nothing less than a nightmare. This is exactly what happened to Joseph and Joann Catalanotto and their home in Hammond, Louisiana.

The Catalanottos moved into their home in March of 1996. In 2004, the couple sent a letter to to Jim Walter Homes, Inc. (“JWH”) detailing several major problems they had encountered with the home. The listed problems included the following: (1) The piers are sinking and leaning out; (2) The kitchen floor is swelling, the living room floor has a large dip, and the master bedroom floor is uneven; (3) The utility room is rotting; (4) The back porch is pulling away from the house and rotting; ( 5) The corner fascia boards are pushed away from the house; (6) The front porch does not have the correct pitch to it, causing water to come to the front door; (7) The doors are sagging; (8) The sheetrock has cracks; (9) The hardiplank siding is cracking and breaking. Although JWH sent various supervisors and contractors to address some of the complaints, JWH notified the Catalanottos in 2005 that the home was out of warranty and that JWH would not undertake any further repairs unless any given problem is deemed (that is, by a court) to have resulted from a structural failure covered by a ten-year warranty.

Accordingly, the Catalanottos turned to the courts to make such a determination about the home’s defects. The couple filed a lawsuit against JWH in 2006 alleging that JWH violated the New Home Warranty Act, LSA-R.S. 9:3141, et. seq., (“NHWA”) by not constructing the home in conformity with the applicable building standards. In June 2013, the Catalanottos’ retained an expert witness, Darrel Fussel (“Fussel”), who testified at the trial. Although JWH also retained an expert for trial, JWH did not call on its expert at trial. As such, after hearing and considering the trial testimony, albeit only from the Catalanottos’ expert witness, the trial court ruled in favor of the plaintiff couple, finding that the home was not free from structural defects within ten years of its purchase (note: although the NHWA currently protects new homes for only five years instead of ten, the time limit that governs is that which was in force at the time the home was finished in 1996 — ten years). The court accordingly awarded the Catalanottos $60,000 plus seventeen-and-a-half years of interest at eight percent (totaling, $166,068), $12,000 in attorney fees, and judicial interest and court costs.

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openly-sky-1227535-1-1024x768In  Louisiana, the objection of prescription extinguishes a legal right of recovery when a party fails to exercise it over a given period of time. It is essentially a time limit on a claim, which can be raised in a couple of ways. Typically, it is raised by a peremptory exception, but it can also be raised by way of a prescriptive motion for summary judgment. One defense to the objection of prescription is the doctrine of contra non valentem. This doctrine is used to “soften the occasional harshness of prescriptive statutes.” Carter v. Haygood, 892 So.2d 1261, 1268 (La. Ct. App. 2005). A 2015 case from the Louisiana Fourth Circuit Court of Appeal discusses the operation of contra non valentem when pleaded in opposition to a peremptory exception or prescriptive motion for summary judgment.

The dispute in this case arose out of a construction project in which Plaquemines Parish sought to rebuild a parish-oriented drainage pumping station damaged by Hurricane Katrina. Shortly before the project’s completion, M.R. Pittman Group, L.L.C. filed a lawsuit against Plaquemines Parish and several of the parish’s engineering firms. Plaquemines Parish answered, bringing a reconventional demand (or counterclaim as it is known in other states) against Pittman, alleging a tort-based property claim for damages to the pumping station’s wing wall, and a third-party direct action claim against Pittman’s insurer, Gray Insurance Company. Both Pittman and Gray sought to have Plaquemines Parish’s tort claim dismissed on the basis of prescription. Gray filed a peremptory exception of prescription while Pittman filed a motion for summary judgment adopting the reasons put forward by Gray in support of its exception. Plaquemines Parish argued that the doctrine of contra non valentem should apply to toll the one-year prescriptive period.

According to the Fourth Circuit, Louisiana recognizes four situations where contra non valentem applies to prevent prescription: “1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; 2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and 4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.” In determining whether any of these categories apply, Louisiana courts will look at the individual circumstances of each case. Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. Ct. App. 2010).

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megalong-landscape-iii-1542182-1-1024x712A land dispute in Evangeline Parish once again highlights the intricacies of Louisiana property law, and the need for an experienced lawyer if you ever find yourself involved in a property dispute. The dispute in question involves the title to 18 acres of a 23-acre tract of immovable property located in Evangeline Parish. Acme Land Company purchased the full 23 acres in 1910. In 1910, the property purchased by Acme was located in what was then St. Landry Parish, but the property was subsequently carved out with other immovable property to establish what is today Evangeline Parish, and the deed of acquisition is duly recorded in the conveyance records of Evangeline Parish.

From the time of its purchase of the 23 acres, Acme annually paid the property taxes on the land but did not do much else with the property. In 1975, Acme granted Louisiana Gas a pipeline right-of-way across the tract. In 1990, Acme leased the 23 acres to Devco Explorations for oil, gas, and mineral exploration. At some time during Acme’s leasing of the land, someone constructed a fence traversing the tract from east to west along the northern portion of the tract. The 18 acres at issue lie to the south of this fence.

In 1998, a married couple began possessing this 18 acre portion of the property, after they purchased a 23-acre tract of immovable property shaped similarly to the property owned by Acme and located immediately southeast of the Acme property. The cash sale deed for the couple’s purchase was recorded in the Evangeline Parish conveyance records in 1998. The couple acknowledged their title does not encompass the 18 acres owned by Acme, but the husband asserted he walked across both tracts of land and assumed the fence line on the northern portion of the Acme property would be his northern property line. Thus, a fence line built by an unknown third party led to the married couple believing they had a right to possess land which legally belonged to Acme.

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rural-courthouse-1466073-1024x709A recent case from the Fifth Circuit Court of Appeal for the State of Louisiana demonstrates the importance of ensuring a client has all relevant evidence before proceeding with a lawsuit. Although the Plaintiffs eventually had all sanctions dropped for “pursuing a meritless case”, they could have saved a lot of time and effort had they properly investigated all of the facts prior to filing the lawsuit.

The underlying proceedings prior to the appeal involved the Plaintiffs filing a “Petition for Enforcement of Mortgage on Real Estate.” alleging that their spouse/father had loaned $50,000,00 to the Defendant. The Plaintiffs alleged there was a promissory note executed for the debt.

To secure the debt, the Defendants property was encumbered with a mortgage that would, over twenty-five years, repay the debt. The loaner passed away, and the surviving spouse and heirs (the Plaintiffs in this case) inherited the mortgage and wanted the remaining balance paid.

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