Articles Posted in Property

Many Americans do not know that it is actually possible to legally acquire another person’s land without possessing fair title or good faith. Of course, specific guidelines must be followed, but with some will, knowledge, and close attention to detail, this process known as “adverse possession” can be surprisingly simple to accomplish.

In Louisiana, adverse possession occurs when an individual exercises actual, adverse, physical possession over the property of another.  See Crowell Land & Mineral Corp. v. Funderburk, 692 So.2d 535, 537 (La. App. 3 Cir. 1997). Furthermore the possession must be continuous, uninterrupted, peaceable, public, indisputable, and within discernible bounds. See La. Civ. Code art. 3476. While this may sound like a rather simple task, the kicker is that Louisiana law demands that all those requirements be met for a period of 30 years, making the whole process a bit more of a gamble, considering the time commitment and outside forces beyond one’s control. Additionally, once the requirements are met and the case is presented in court, the adverse possessor bears the burden of proving that all requirements were met. Accordingly, while acquiring land in such a way can be quite lucrative, it can also end up being a big waste of time if you are not able to meet all the requirements continuously for the entire 30-year period.

In 1969, Erne Plessala, Sr., used levees to construct a crawfish pond on Wayne Trahan’s and Larry Verret’s shared land in Iberia Parish. Sometime later, Mr. Plessala moved soil from a spoil bank of the canal bordering the pond so that he could build a campsite and then built a bridge over the canal to the campsite.

A 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.

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.

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.