Articles Posted in Real Estate

Expropriation is the act of the government taking privately owned property and using it for the benefit of the public. Generally, most expropriation cases deal with the construction of public roadways and highways. Where the land is expropriated, the private landowner is generally compensated. In one particular matter involving the expropriation of land to build a highway, valuing the trees on the land became more troublesome than anticipated.

In this Louisiana case, involving the expropriation of two parcels of land located in Avoyelles Parish, the court of appeals conducted an appellate review of the matter twice. After the judgment in the second trial of the matter, the State of Louisiana, through the Department of Transportation and Development (DOTD), appealed the trial court’s judgment which awarded compensation for the value of the land taken for construction of a new highway.

There were two parcels of land that were the subject of dispute. Parcel No. 2-1 and Parcel No. 2-2. The main dispute, among others, was the valuation of the trees on the respective parcels that were expropriated in order to build the new highway. The trial court awarded monetary compensation to the landowners for the presented value of the land taken.

When purchasing property, buyers should be aware of rights reserved by others in the deed. Certain reservations of rights made by an original owner can continue to haunt a parcel of property through successive conveyances and multiple owners. In Louisiana, the language in a deed can create a personal servitude,  a charge or burden on a piece of property for the benefit of another person. Personal servitudes are not automatically extinguished at death and may be inheritable by descendants of the beneficiary. For example, a seller may reserve hunting rights for his or her family on the newly purchased property for generations. Needless to say, disputes often arise regarding the breadth and depth of such reservations. When interpreted by a court, the intent of the original parties in negotiating the reservation is key, as shown by a recent decision of the Louisiana Third Circuit Court of Appeal.

The dispute, in this case, involved two adjoining parcels of property in Avoyelles Parish, Louisiana. One parcel was owned by Kirby Roy Jr. and his wife Marjorie. Kirby Roy, III and his wife Sheila owned the other. In 1980, the couples sold their parcels to Douglas and Ralph J. Bordelon, reserving any and all hunting rights on the property described in the deeds. After a foreclosure proceeding, Nelson A. Bordelon, Wayne L. Gremillion, and Richard Tassin purchased the property in 1991. The three purchasers partitioned the property among themselves.

During the various conveyances, the Roy family continued to hunt on the property much to the dismay of the new owners. The new owners questioned whether the Roys retained their reservation of hunting rights after the 1991 purchase. Mr. Gremillion filed a criminal trespass complaint with the Avoyelles Parish Sheriff’s’ Department, reporting Mr. Roy III for hunting on the property without permission.

Property disputes can be complicated and confusing, so it is important to hire an excellent lawyer capable of untangling all of the issues involved in the case. Plaintiff Don Whitlock owns property in East Carroll Parish, Louisiana and brought a petition against Defendant Fifth Louisiana District Levee Board and its lessee, Jamie Isaac, seeking a preliminary and permanent injunction to prevent the defendants from trespassing on his property when they travelled across to access a hunting lease owned by the defendant Levee Board that is located west of Plaintiff’s property. Mr. Whitlock farms on the three lots of land at issue and alleged Issac caused damage as he crossed all three lots, creating ruts in the soil, damaging crops, and changing the flow of water. The defendants, however, argued that the land was conveyed to plaintiff’s ancestor with a public right of passage in the deed, and thus there could be no suit for trespass. The Trial Court agreed and with the defendants and held that there was no cause of action. It also held that since Mr. Whitlock was not the sole owner of the land (there were other owners on two of the three lots), he failed to join all the parties and further lacked the capacity to sue in a representative capacity for the other owners. Finally, it took a “strange” step in ruling on the merits of the preliminary injunctions despite the fact that it had sustained the exceptions raised by the defendants. It held that preliminary injunction could not be granted because Mr. Whitlock failed to show irreparable harm. Thus, the Trial Court dismissed the case. On appeal, Mr. Whitlock argued that the Trial Court’s rulings were improper.

The Louisiana Second Circuit Court of Appeal reversed the Trial Court’s dismissal of the case. The Court of Appeal found that the exceptions were improperly sustained and the Trial Court applied the wrong burden of proof in ruling on the preliminary injunction. Mr. Whitlock is the sole owner of Lot 3 and is an owner “indivision” of Lots 1 and 2. Whitlock’s ancestor had purchased all three lots in 1973 and the lots were burdened by a “right of way twenty feet wide across the lands . . . to serve as a road for the use of the public and which right of way shall hereafter be located by said vendee.” This public right of way eventually became a gravel road named Parish Gravel Road No. 1205 or 1285. It ran across the east side of the property, entirely located within lot 1. However, when defendant Issac became the lessee of the Swan Lake property owned by the defendant Levee Board, he began crossing Whitlock’s property in various places because the Swan Lake property was located directly behind lot 3. Whitlock alleged that he told Issac to stop and attempted to address the issues with the Levee Board because of the ruts being created as Isaac and his friends drove vehicles across the property, damaging his crops and changing the natural flow of water. Whitlock argued that Issac was not taking the shortest route across the property nor was he taking a route that would cause the least disruption. The Levee Board refused to take any action and Issac continued crossing against Whitlock’s wishes. Eventually, Whitlock filed a lawsuit seeking a preliminary and permanent injunction and damages for the loss of 2.2 acres of land that he could not use.

The Defendants asserted that the case should be dismissed because of the right of way included in the deed. Further, they alleged that Whitlock was not the sole owner of all of the property and thus, was required to join his co-owners in the lawsuit. The Trial Court agreed with these exceptions. It also looked at the merits of the preliminary injunctions and ruled that Whitlock could not meet the burden of proof of irreparable injury. The exceptions were sustained and the case was dismissed.

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.