Articles Posted in Real Estate

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.

A 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.

A 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.

Residents 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.