CODE I OUTLINE

I. NATURAL AND JURIDICAL PERSONS

A. Natural Person
1. A human being
2. Timing
a. Natural personality commences from the moment of live birth.
i. Key inquiry for live birth = respiration
ii. Once a person is born, conception becomes relevant for paternity, inheritance rights,
etc.
iii. Exception to the live birth requirement is wrongful death claims  can file a
wrongful death suit against the person who caused a fetus’s death.
b. Natural personality terminates at death 
i. Certification by licensed medical doctor. Includes:
a. Irreversible cessation of spontaneous respiratory and circulatory functions.
b. Irreversible total cessation of brain function (if kept alive artificially).
ii. Judicial declaration
a. Person disappeared under circumstances such that his death seems certain.
1. Don’t need to find the body
2. No specific time period
3. Proof by a preponderance
b. Absent person  5 years
3. Effect of natural personality: legal capacity to have rights and duties.
4. Conflict of laws regarding status  use serious impairment test
B. Juridical Person
1. “An entity to which the law attributes personality.”
a. Distinct and distinguishable from its members
b. Governed by provisions in their charters, by-laws, and pertinent laws
2. Examples:
a. State, municipality
b. Corporation, partnership
c. In vitro fertilized ovum (until it is implanted in the womb, at which point it becomes a
natural person).
i. If there is a dispute, the test is the best interests of the ovum.
ii. No inheritance rights unless born alive, and no right to inherit from biological donor
parent(s) if donated to another couple.

II. DOMICILE
A. General
1. The domicile of a natural person is the place of his habitual residence.
a. Can have more than one residence, but can only have one domicile.
b. Presumption is that it is the person’s “domicile of origin.”
c. If the person splits his time between several places equally and there is no written
declaration, any of these places can be considered his habitual residence.
2. Test for domicile: presence (actual residence) + intent to remain (subjective test)
B. Change of Domicile
1. Presumption that domicile has not changed
2. Two part test: Presence (act of residing in another parish) + Dual intent (intent to make the new
location his habitual residence)
3. Proving intent to change depends on the circumstances

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 4. Domicile is not forfeited if person temporarily leaves (i.e. for work, military service, etc), there
must be intent to change domicile.
C. Domicile as a Matter of Status
1. Spouses  either common or separate domicile
2. Unemancipated minor  domicile of parent or parents w/ whom the minor usually resides, or
domicile of parent/person w/ legal authority over the minor, or domicile of tutor.
3. Interdicts
a. Full: curator’s domicile
b. Limited: keep their domicile, unless otherwise provided for in the judgment of interdiction.

III. MARRIED PERSONS

A. General
1. Defined: marriage is a legal relationship between a man and a woman created by civil
contract.
2. Prerequisites:
a. Absence of legal impediment
i. No same-sex marriage
ii. No marriage to someone who is already married
iii. No marriage to collateral closer than the 4th degree (encompasses first cousins and
up)
iv. No marriage to adopted relative w/in 4th degree w/out judicial approval.
v. Ok to marry step-relatives
b. Valid ceremony
i. Qualified celebrant or one that the parties reasonably believe is qualified
ii. Presence of both parties
iii. Marriage license
iv. Two competent Ws age 18 or older
v. Signed certificate  parties, Ws, celebrant
vi. Summary of laws
c. Consent of both parties  must be verbal
i. No duress
ii. No mental impediment
iii. Age: minors under 18 must have parental authority and minors under 16 must have
juvenile court authority
B. Covenant Marriage
1. Special marriage with special requirements
2. Parties must agree to get counseling as soon as problems begin up until divorce
3. This never really took off.
C. Nullity of Marriage
1. Relative Nullity: marriage lacking consent
a. Can be ratified by the nonconsenting party
2. Absolute Nullity: violation of impediment, invalid ceremony
a. This is like the marriage never existed
b. However, civil effects can still flow to one or both spouses  putative marriage doctrine.
3. Putative marriage doctrine
a. Two requirements
i. Absolutely null marriage; that was
ii. Contracted in good faith by at least one party.
b. Good faith = honest and reasonable belief that there exists no legal impediment to the
marriage
c. Applies to both:

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 i. Errors of law
ii. Errors of fact
d. Presumption of good faith on behalf of the party making the claim
i. First-hand knowledge of impediment vitiates good faith
ii. Second-hand knowledge imposes duty to investigate
e. Civil effects
i. Putative spouse is eligible for:
a. Spousal support (interim regardless of faith, for final support you need good
faith)
b. Legitimacy of children
c. Marital portion (good faith spouse only)
d. Wrongful death: good faith spouse can sue for wrongful death of putative
spouse
e. Community property: determined by good faith
i. Dead spouse in bad faith: CP divided equally between two wives
ii. Both spouses in good faith: heirs get his half of CP and two spouses
share the remaining half.
ii. Duration: as long as spouse remains in good faith.
a. Exception: bigamy  civil effects will continue until
i. Official declaration of nullity; or
ii. “Innocent” spouse remarries
iii. Children will also get civil effects.
iv. Putative same-sex marriages are not a thing  no civil effects to either party.
D. Incidents of Marriage
1. Spouses cannot sue each other during marriage and cannot contract out of their marital duties.
E. Conflict of Laws
1. If a marriage is valid:
a. Where contracted; or
b. Where parties were first domiciled as husband and wife, then it be valid in LA absent a
public policy reason (i.e. no same-sex marriage).

IV. TERMINATION OF MARRIAGE

A. Ways to Terminate a Marriage
1. Death of either spouse
2. Judicial declaration of nullity (relatively null marriage)
3. Authorization by court to remarry (for spouse of person in active duty in military who is presumed
dead)
4. Divorce
B. Divorce
1. No fault divorce
a. Article 102 Divorce – separation after service
i. Permits divorce after parties have lived apart continuously for ____ after service of
petition or written waiver of service:
a. 180 days  no minor children, court finds that spouse physically or sexually
abused other spouse or child, injunction in place when divorce is filed
protecting spouse or child from abuse
b. 365 days  minor children
ii. Service must be requested within 90 days of filing
iii. Procedure
a. Petition  allege jurisdiction and venue; must be verified by affidavit
executed by petitioner

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 b. Rule to show cause after requisite time period  may be filed by either
party
1. Allege proper service of initial petition
2. Allege that proper time period has elapsed since service or waiver of
service
3. Allege that parties have been living separate and apart continuously
for 180/365 days prior to filing RTSC.
4. Be verified by affidavit of mover
c. Hearing: facts entitling moving party to the Art. 102 divorce may be
established by:
1. Petition
2. Return on service of petition
3. RTSC and verifying affidavit
4. Return on service of RTSC
5. Mover’s affidavit
iv. Abandoned if RTSC not filed w/in 2 years after service of original petition
v. Can’t move for SJ or judgment on the pleadings
vi. Can only dismiss by joint motion or contradictory motion by pl.
b. Article 103(1) Divorce – separation prior to filing
i. Parties must have been living separate and apart continuously for 180/365 or more
days before the petition is filed  physical separation must be voluntary on the part of
at least one party.
2. Fault-based divorce
a. Article 103(2) Divorce – immediate adultery divorce
i. Adultery must be proved at trial by corroborated testimony  evidence must lead
fairly and necessarily to the conclusion that adultery has been committed
a. Admission of adulterous spouse not enough
b. Proof must be specific
c. Proof of sexual intercourse not necessary
d. Attempt to commit adultery may be enough
ii. Divorce will be immediate once proof is established at trial
b. Article 103(3) Divorce – immediate felony conviction divorce
i. Spouse must be convicted of a felony AND sentenced to death or to imprisonment at
hard labor.
C. Defenses to Divorce Actions
1. Procedural  time limits not met; filing deadline, etc. not met
2. Reconciliation:
a. Resumption of life together with mutual intent to resume the marriage
b. For adultery/felony conviction divorce, some element of forgiveness or condonation after
knowledge of the offense may amount to reconciliation
3. Mental condition of at-fault spouse if mental illness caused or induced the faulty conduct
D. Actions Incidental to Divorce
1. Injunctions  against waste of community property, abuse, harassment
2. Children  custody, visitation, spousal support
3. Money
a. Spousal support
b. Use of property
i. Physical child custodian can seek use of matrimonial domicile whether its SP or CP
 “best interests of the family
a. SP: until partition or 180 days following termination of marriage, whichever
comes first

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 b. CP: until further order of the court
ii. Other CP
a. Community movables or immovables: “best interests of the family”
b. Personal property: can be awarded ex parte, limited to personal property,
food/eating utensils, and other items deemed necessary for well-being of
spouse and children
E. Conflict of Laws
1. LA courts may only grant a divorce under LA law  but foreign law can be used to declare
marriage a nullity or deciding ancillary matters.

V. SPOUSAL SUPPORT
A. General
1. Court may award interim or final periodic support to a party who is in need of support and free
from fault prior to the filing of a proceeding to terminate the marriage.
2. Spousal support terminates when:
a. Remarriage of supported spouse
b. Death of either party
c. Cohabitation with another person (of either sex) in the manner of marriage.
B. Interim Support
1. Permitted in a divorce where:
a. One spouse has a need; and
b. The other spouse has the means to pay (based on the standard of living during the marriage)
2. Intended to terminate at judgment of divorce but can continue past divorce if claimant has not yet
had a hearing on final support  in that case, it will either terminate when the judgment
awarding/denying final support is rendered OR 180 days after divorce, whichever happens first,
unless the claimant shows good cause.
3. Fault is irrelevant
4. Burden of proof: on spouse seeking support
5. If both parties seek interim support, generally, the primary income earner will be the payor spouse.
Considerations:
a. Claimant-spouse’s income (some courts consider current earning capacity – not future)
b. Payor’s means (broader inquiry)
i. Income
ii. Gifts
iii. Assets
iv. Liabilities
v. Earning capacity
6. Standard of appellate review: abuse of discretion
7. Modification: if there is a material change in circumstances for either party
8. Termination: if it becomes unnecessary
9. CANNOT WAIVE INTERIM SPOUSAL SUPPORT IN A PRENUP.
C. Final Support
1. Court may award final periodic support to a party free from fault prior to the filing of the
divorce
2. Award is based on:
a. One spouse’s need; and
i. Inability to meet necessary expenses
ii. Courts consider standard of living, not just basic survival
b. The other spouse’s the means to pay
3. Considerations
a. Income and means of parties  including liquidity

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 b. Financial obligations of the parties
c. Earning capacity of the parties
d. Effect of child custody arrangements on earning capacity
e. Rehabilitation  time necessary for claimant to acquire additional education, training 
court may award “rehabilitative support” that terminates after a set time period
f. Age and health of parties
g. Duration of marriage
h. Tax consequences
4. Fault
a. Grounds
i. Adultery
ii. Felony conviction
iii. Intemperance/cruel treatment
a. Reconciliation will condone acts done prior to reconciliation
b. Must be more than just nagging, fussing, criticism
iv. Abandonment (leaving w/out lawful cause and refusing to return after request from
other spouse)
a. Constructive abandonment: spouse forced out and leaves with lawful cause
or is forced by other spouse to leave
b. Leaving can’t have been provoked by abandoned spouse
v. Defamation (must be public and inflammatory)
vi. Attempted murder
vii. Fugitive status (felony; proof of guilt must exist
viii. Failure to fulfill incidental duties
ix. Non-support
b. Defenses
i. Condonation
ii. Conduct caused by mental illness/incapacity or physical infirmity
iii. Reconciliation
5. Limit on amount: 1/3 of payor’s net income
6. When court renders judgment to make past due payments executory, it will award attorney’s fees
and costs to prevailing party (unless good cause is shown)  5 year LP for action to make executory
arrearages
7. Modification/Termination
a. Modified if circumstances materially change
b. Terminated if becomes unnecessary
c. Procedure
i. Judgment of court w/ competent jurisdiction  burden of proof on party seeking
modification
ii. Juridical act (auth act, act under private signature)
iii. Prenuptial waiver
8. Conflict of laws: can get spousal support in LA for divorce obtained in other state
9. Peremptive period: 3 years. Begins to run from the latest of:
a. Divorce
b. Judgment terminating previous award
c. Last payment
D. Contributions to Earning Capacity of Spouse
1. Applies when
a. Spouse or former spouse has made contributions to the other spouse’s training/eduation
during marriage that increased the other spouse’s earning power; and
b. The claimant did not benefit during the marriage

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 2. Timing: claim arises when divorce action is filed and prescribes 3 years after the signing of the
divorce judgment.
3. Characterized as an additional award
4. Calculated by using De la Rosa formulate
5. Personal right/obligation  abates upon death of spouse, non-heritable

VI. CHILD CUSTODY AND VISITATION

A. Standard
1. Custody orders are based on the best interests of the child (as such, they are always modifiable)
2. Best interest factors:
a. Prior relationship
b. Ability to provide
c. Health
d. Emotional ties between party and child
e. Location between parties’ residences
f. Past caregiver
g. Stability
h. Cooperation with other party
i. History
j. Ability to nurture
k. Moral fitness of parent(s) (as it affects the child)
l. Preference of child
*On exam: state each factor present and discuss which parent’s favor it falls into)
3. Change of custody  Bergeron test:
a. “If a custody decision is rendered as a “considered decree,” an additional requirement
is imposed in an action to change custody. The proponent of change must show that a
change in circumstances has occurred such that “the continuation of the present custody
is so deleterious to the child as to justify a modification of the custody decree, or that the
harm likely to be caused by a change in environment is substantially outweighed by its
advantages to the child.”
b. For consent custody judgments, Bergeron does not apply. Instead, the proponent of change
only needs to prove that:
i. There has been a material change of circumstances; and
ii. The proposed modification is in the best interests of the child.
B. Custody Preferences
1. Parents’ agreement  courts will implement parental agreements as to custody if they are in the
best interests of the child
2. Joint custody  strongly preferred by LA law
a. Joint custody is appropriate unless parents are engaged in continuous acrimony and conflict
b. Implemented via an implementation order:
i. Allocates periods of physical custody for each parent
ii. Allocates legal authority and responsibility
iii. Designates domiciliary parent (parent w/ whom child will primarily reside)
c. Preference for equal physical custody
3. Sole custody of one parent
4. Non-parent custodian or to another person with whom the child has been living in (or who is able
to provide) a wholesome, stable environment
C. Custody of Illegitimate Children
1. Formally acknowledged by both parents: use regular custody rules
2. Illegitimate children who have not been legitimated or formally acknowledged: use tutorship rules
D. Visitation

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 1. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights
unless the court finds, after a hearing, and it would not be in the best interests of the child.
a. Felony rape/conception exception
2. Grandparent not granted custody: best interests of child
3. Other relative: must prove extraordinary circumstances to be granted reasonable visitation rights.
Court will consider:
i. Prior relationship w/ child
ii. Need for guidance that can best be provided by the relative
iii. Preference of child (if of sufficient age/maturity)
iv. Cooperating w/ parents
v. Mental and physical health of child and relative
4. Grandparents and siblings of child with a deceased, interdicted, or incarcerated parent OR
parents who are legally separated or living apart for 6 months: best interest standard
5. Visitation denied for any person whose intentional criminal conduct resulted in the death of the
child’s parent
E. Misc.
1. Courts should not grant ex parte interim custody unless irreparable and immediate injury is
apparent
2. Court may order evaluation of parent(s) or child for good cause shown
3. Court may order mediation
4. Appeal will not suspend the execution of a custody order
5. Parent must abide by a court-ordered visitation or custody schedule except for good cause shown.
If they fail to do so, a contempt action can be brought and the prevailing party can receive:
a. Reimbursement for costs and expenses
b. Additional visitation
c. Attorney’s fees and costs
*However, affirmative defenses can be brought
F. Moving the Residence of the Child
1. Relocation = change in principal residence of child for a period of 60 days or more and not a
temporary absence
2. Relocation statute applies when:
a. Child will be relocated outside of state
b. Child will be relocated 75 miles away from either the principal residence, or if there isn’t
one, from the domicile of the parent entitled to object.
3. Notice to other parent or any person awarded custody or visitation must be made by:
a. Sole custodian
b. Designated domiciliary parent
c. Parent sharing equal physical custody
d. Parent sharing equal parental authority
e. Tutor of child born outside of marriage
4. Person receiving notice has 30 days to object from receipt of notice
a. Non-parents who have custody may object
b. Non-parents without custody may institute a proceeding to revise the visitation schedule
c. Parent w/ equal physical custody does not need to object (they get a hearing anyway)
5. Must have contradictory hearing to consider various factors about whether the relocation is in good
faith and in the child’s best interests
6. Relocating without notice may be considered a change of circumstances warranting a modification
of custody
G. Jurisdiction
1. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

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 a. There are two tests to determine where parents who now live in two different states (post-
separation) should file for custody:
i. File in child’s home state, which is
a. The state in which the child lived with a parent for at least 6 consecutive
months prior to the proceeding; or
b. Was the child’s home state within the past 6 months and the child is absent
but a parent still lives in the state; or
c. Was the child’s home state w/in the past 12 months but the child is absent
from the state because of an emergency that forced him to leave and prevented
him from returning (Katrina, etc).
ii. Signification connection test:
a. Child and at least one parent have a significant connection w/ the state; and
b. Substantial evidence is available within the state about child’s care,
protection, training, and personal relationships.
c. Use this test if:
1. Home state standard does not apply; or
2. Home state has declined jurisdiction
2. Exclusive continuing jurisdiction  new state wants to modify an old state’s custody order. Can’t
do this unless:
a. Either state court determines that neither the child not the parents no longer live in the that
state; or
b. The issuing state court determines that the child no longer has a significant connection w/
the state.
3. Temporary emergency jurisdiction (issues will eventually need to be litigated in the proper state)
a. Child abandoned
b. Child(ren) or parent subject to or threatened with abuse

VII. CHILD SUPPORT

A. Rule
1. In a divorce proceeding or thereafter, court may order one or both parents to provide either interim
or final support for a child, based on:
a. Child’s needs; and
b. Parent’s ability to support.
2. Modified for material change in circumstances, terminated upon proof that it has become
unnecessary.
B. Duration
1. General rule: majority or emancipation, whichever comes first
2. Special rules:
a. Child that is unmarried, dependent on parents, AND a full-time high school student in good
standing: until 19th birthday or HS graduation, whichever comes first.
b. Developmentally disabled child: until he turns 22, as long as he is a full-time student in a
secondary school.
c. Child over age 18 in necessitous circumstances: alimony paid
i. Limited to basic necessities: food, shelter, clothing, health care
ii. Must prove you can’t get the money elsewhere (including welfare)
d. Mentally or physically incapacitated child: alimony paid
3. Number of children
a. Per child award: award automatically terminates when that child reaches majority
b. In globo award: continues in full until youngest child reaches majority, but payor can file
a rule to reduce support once older kid(s) turn 18.
C. Amount of Child Support

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 1. General Rule: income shares model
2. Procedure
a. Calculate each party’s gross income
i. Either actual income, or potential income of a parent voluntarily unemployed or
underemployed  no income imputed to unemployed parent who is caring for child of
the marriage that is under 5 years of age.
b. Calculate adjusted income: subtract from each party’s gross income any preexisting child or
spousal support obligation paid to another who is not a party to the proceeding, or another
child.
c. Combine both parents’ adjusted gross incomes
d. Look at child support schedule to get basic child support obligation
i. Minimum of $100/month
e. Make any necessary adjustments
i. Add cost of health insurance, extraordinary medical expenses, and other
extraordinary expenses (tuition, etc)
f. Court can deviate from set amount but must put reasons on the record
g. Calculate each party’s share
h. Money judgment owed by non-custodial parent to custodial parent
i. Non-payment can result in contempt or fines
i. Court can adjust the amount by considering the joint custody adjustment  total amount of
time child spends w/ non-domiciliary parent, if that parent has physical custody of the child
for more than 73 days per year and has an increased financial burden while the domiciliary
parent has a decreased financial burden.
D. Misc.
1. Award will be retroactive to date of filing of petition, unless good cause is shown
2. 10 year PP to recover on past due amount
3. Prevailing party will get attorney’s fees and costs
4. Court can accumulate and make past due amounts executory, and legal interest will be awarded on
payments on date each was due.
a. Claimant seeking past due payments may seek them from payor’s federal income tax
refund.
5. Court can revoke delinquent spouse’s licenses (driver’s, professional, recreational)
6. Income assignment orders (employer pays directly)  required by statute but parties can agree to
the contrary in writing or the court can find good cause not to order it.
7. Remedy if you suspect other parent is using their child support money improperly: request for
accounting

VIII. BIOLOGICAL FILIATION

A. Maternity
1. Established by proving by a preponderance that a child was born of a particular woman.
2. A surrogate mother will be the biological mother, because in LA compensated surrogacy contracts
are null and unenforceable
a. Exception: husband and wife who provide sperm and egg for in vitro fertilization into a
surrogate who is related by blood or affinity to the husband or wife will be considered the
biological parents.
B. Paternity
1. Presumptions
a. Husband
i. Husband of the mother is presumed to be the father of a child born:
a. During the marriage; or
b. Up to 300 days after the marriage terminates (even if mother remarries)

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 ii. How to rebut: disavowal action
b. Second Husband
i. If child is born within 300 days of the termination of the marriage and the first
husband successfully disavows, the second husband will be presumed to be the father.
He (or successor) will then have one year to disavow paternity.
c. Subsequent Marriage
i. Man who marries mother of child is presumed to be the father if he:
a. Acknowledges child by authentic act; or
b. Signs birth certificate
ii. The father may then disavow within 180 days of the marriage or the
acknowledgement, whichever happened later (special prescription rule).
iii. Does not apply when child’s filiation is already established to another man.
iv. If mother brings contestation action, the presumption doesn’t apply and she’ll have
to prove paternity by C&C evidence.
2. Rebutting the Presumption
a. Husband presumed to be father must file suit to disavow within one year after he learned
or should have learned of the birth of the child (prescriptive period).
b. If husband presumed to be the father lived separate and apart from the mother continuously
during the 300 days preceding the birth of the child, suit must be filed within one year from
the date the husband is notified in writing that a party in interest has asserted that he is
the father.
c. If husband dies before the year is up, his heirs will get to continue the suit  one-year time
limit still applies
d. Once a year is up, the presumption becomes irrebuttable.
3. Types of paternity actions
a. Disavowal: discussed above, father trying to prove the kid isn’t his
i. Exception: father cannot disavow a child born as a result of assisted conception to
which he consented
b. Contestation and Establishment
i. Brought by: mother of child
ii. Must prove: both that former husband is not the father and that the new husband is
the father
iii. Standard: C&C evidence
iv. Result: new husband will be presumed to be the child’s father, former husband no
longer will be
v. Prescriptive period: 180 days from marriage to present husband AND two years
from birth of child
vi. Dual judgment required
c. Child’s action to establish paternity
i. Child may file suit to prove paternity even if he’s presumed to be filiated by another
man.
ii. Burden of proof
a. Father is dead: C&C
b. Father is alive: preponderance
iii. Time limits: within one year of father’s death (for succession purposes only).
d. Father’s avowal action to prove paternity
i. Man can file suit to establish paternity of child
ii. Strictly personal action
iii. Burden of proof: preponderance
iv. Time limits
a. If child presumed to be child of another man: 1 year from birth

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 i. Bad faith exception: mom deceived father in bad faith regarding his
paternity  within one year of the day the father knew or should have
known of his paternity OR within 10 years of child’s birth, whichever
occurs first.
ii. In any event, must bring action w/in one year of child’s death.
b. If child not presumed to be filiated to another man  no later than one year
after child’s death.
4. Effect of acknowledgement
a. Creates presumption in favor of child only  meaning that only child can invoke it.
(exception: child support, custody, visitation, establish obligation to support, establish
visitation)
b. Acknowledgement by a man who is not the biological father is absolutely null.
5. Revocation of acknowledgement
a. May be revoked w/out cause within 60 days of signing  done by submitting a sworn
statement or in a judicial hearing.
b. May be revoked within 2 years of signing upon proof by C&C evidence that the act was
induced by fraud/duress/mistake or that the man is not the biological after  revocation only
applies prospectively.
6. Informal acknowledgement: treating a child as your own. This doesn’t really do anything but can
be used as evidence to prove paternity.
C. Filiation by Adoption
1. Types of Adoption
a. Adult adoption
i. Stepparent adoption: no judicial authorization needed
ii. Other adult adoption: adoptive parent and person to be adopted must file a joint
petition and the court will grant it if it’s in the best interest of the parties.
iii. Consent of spouses of both parent and person to be adopted is required in an
authentic act for adoption.
iv. Effective date: date the judgment is filed for registry.
v. Limitation: you cannot adopt your spouse.
b. Child adoption
2. Effects of adoption
a. Adopted child will be the legitimate “child” of his parents for all purposes.
b. Adoption of a child will terminate most legal rights between him and his biological parents,
with two exceptions:
i. Stepparent adoption
ii. Inheritance: adopted child can still inherit from blood relatives

IX. RECIPROCAL RIGHTS/DUTIES OF CHILDREN AND PARENTS

A. Usufruct
1. Parents will get usufruct over child’s property while parental authority exist.
a. Nonalienable
b. Nonlienable
2. Scope: all property except
a. Property acquired by child’s own labor
b. Specifically excluded inheritance
c. IV donation where right to parental UF has not been expressly provided for in the act of
donation.
B. Alimentary Obligations
1. Reciprocal duty to provide for one another  food, clothing, shelter, health care.
2. If sought by illegitimate child, must prove filiation first.

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 X. TUTORSHIP
A. What is Tutorship?
1. Care of person; and
2. Care of property
B. When necessary
1. Child of unmarried, divorced, or deceased parents.
2. Whenever a child is not under parental authority, he must be under tutorship
C. Venue
1. Where child resides;
2. Where surviving parent is domiciled; or
3. In the case of divorce, where the parent awarded custody is domiciled.
D. Types of Tutorship
1. Natural (by nature): parents are the natural tutors of their legitimate children.
a. Upon death of one parent, the other parent will automatically become the child’s tutor.
b. Upon divorce, the parent with custody will become the tutor. If parents share joint custody,
they will be co-tutors who share equal authority.
c. The tutor of an illegitimate child is determined as follows:
i. If father has not acknowledged or has acknowledged w/out mother’s concurrence 
mother.
ii. If mother has died and child has not previously been acknowledged by father 
first consideration to mother’s parent(s) and sibling(s); then to father  BIOC
iii. When both parents have acknowledged  court will make one of them the tutor
after considering the best interests of the child. If parents share joint custody, they will
be co-tutors who share equal authority.
2. By will:
a. Can be given by:
i. Testament
ii. Authentic act
b. Named tutor does not need to accept
c. Divorced parents: either spouse w/ sole custody, or if parents have joint custody, spouse
dying last.
d. If several tutors are named, the one named first will be the tutor
3. Tutorship by effect of law: when a tutor has not been appointed by parent dying last or when a
new tutor is necessary, the court will select a tutor from the following (keeping in mind the best
interests of the child):
a. Child’s qualified direct ascendants;
b. Child’s qualified collaterals by blood within 3rd degree
c. Child’s stepparent
4. Dative tutorship (by appointment): when minor is orphan whose parents have appointed no tutor
(by will or auth act) and there are no relations to be tutorship by effect of law or when the tutor by
effect of law cannot serve, the court shall appoint a tutor
E. Qualifications of Tutor
1. 18 or older
2. Not interdicted or incompetent
3. Not a felon
4. Not indebted to minor
5. Not an adverse party to a lawsuit to which the minor is a party
6. Not infirm
7. Not of bad moral character
F. Establishment of Tutorship

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 1. Take oath
2. Furnish security in an amount equaling at least the total value of the minor’s movable property
(except natural tutors)
3. Clerk of court issues letters of tutorship
G. Duties
1. Care/custody
2. Administer estate
3. File/defend lawsuits on minor’s behalf
4. Accept donations on minor’s behalf
5. Buy/sell property on minor’s behalf
6. 6. File annual accounting of all the minor’s property
H. Prescriptive Period
1. Tutee’s action against tutor for tutor’s acts prescribes 4 years after majority.
I. Termination
1. Majority; or
2. Emancipation of tutee.
3. Exception: mentally incapacitated children may be put under tutorship w/out complete interdiction.
a. Standard: person with less than 2/3 of mental ability of normal person of that age
b. Procedure: parent or person entitled to be tutor can petition court for continuing tutorship
c. Effect: permanent minority.
d. Duration: continues until contrary order by court
J. Undertutor
1. There is an undertutor in every tutorship
2. He performs any acts the tutor fails to perform, BUT does not step in and take over when tutor dies
or resigns.
3. Must take oath
4. Terminates when principal tutorship terminates.

XI. EMANCIPATION
A. Types
1. Judicial (age 16 or older, for good cause)
a. Types
i. Full: confers all effects of majority onto the emancipated person
ii. Limited: confers the effects of majority that are specified in the judgment of
emancipation
b. Procedure: minor or parents or both can file petition for judicial emancipation
c. Effective date: date the judgment is signed
d. Modification/termination: by court for good cause. Effective against 3rd parties when filed
for registry in the conveyance records of the parish where the property is located
(immovables) or where the minor is domiciled (movables)
2. By Marriage (includes putative marriage)  this is full emancipation
3. Limited Emancipation by Authentic Act (age 16 or older)
a. Will give the minor the capacity to make juridical acts as stated in the act
b. Effective date: when act is executed
c. Modification/termination: by subsequent authentic act
d. Cannot relieve parents of liability for acts occasioned by minor child

XII. INTERDICTION
A. Effects
1. Strips people who are incapable of caring for themselves or administering their estate due to
infirmity of some of all of their capacity to make juridical acts.

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 a. However, pre-petition acts cannot be invalidated solely on the basis of interdiction.
b. All post-petition acts will be relatively null from the time of filing of the petition for
interdiction.
2. Both a curator and undercurator will be appointed.
B. Types
1. Full interdiction = civil death. Court may order the full interdiction of a person
a. Of age of majority or emancipated minor;
b. Who due to an infirmity;
c. Is unable to consistently make reasoned decisions regarding the care of his person or
property, or to communicate those decisions; and
d. Whose interests cannot be protected by less restrictive means.
2. Limited interdiction = lesser interdiction
a. Judgment of interdiction will specifically delineate the powers and responsibilities of the
limited curator.
3. Temporary and preliminary = ordered by court while petition for interdiction is pending. Can be
full or limited. Standard:
a. There is a substantial likelihood that grounds for interdiction exist; and
b. Substantial harm to the health, safety, or property of the person is imminent.
c. Time limit
i. Granted after adversary HG: lasts 30 days
ii. Granted ex parte: lasts 10 days
C. Liability of Curators and Undercurators
1. Not personally liable to third parties for delictual obligation of interdict solely because of his
office.
2. May be liable for damages resulting from acts or omissions.
3. If performing the duty of curator or undercurator w/out compensation, will only be liable for
damages arising from their own gross negligence.
D. Modification/termination
1. Court may modify or terminate the judgment for good cause.
2. Removal of curator or undercurator
a. Standard: best interests of the interdict
b. Factors
i. Curator has or will misapply, embezzle, or remove interdict’s property.
ii. Curator’s failure to render any account required by law.
iii. Curator’s failure to obey order of the court
iv. Curator’s gross misconduct or mismanagement of duties
v. Curator’s incapacity
vi. Abuse or failing to care for interdict

XIII. ABSENT PERSONS

A. General
1. An absent person is one who
a. Has no representative in the state; and
b. Cannot be located w/ due diligence.
2. If the absentee owns property in LA, the court may appoint a curator to manage that property upon
the petition of any interested party and a showing of necessity.
a. Necessity = necessity to protect someone’s interest
b. Cannot locate = there has been an effort to locate OR it would be futile to try
3. Effect
a. Absentee retains capacity to make juridical acts
b. His disposal of immovable’s is subject to public records doctrine

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B. Powers of Curator
1. Administer and dispose of absentee’s separate property
2. Duties
a. Account for his management
b. Restore the property when the curatorship terminates
c. File notice of termination of curatorship in the curatorship proceeding upon acquiring
notice of termination  third parties will be protected until this happens
C. Termination of Curatorship
1. Absentee appoints own representative
2. Absentee comes back
a. Absentee who comes back can recover property
i. If alienated, can recover net procceds
ii. If encumbered, can recover diminution in value
b. Absentee who comes back can recover inheritance in the condition found from his
successors or their transferees by gratuitous title
i. If alienated, can recover net proceeds
ii. If encumbered, can recover diminution in value
iii. Absent person who comes back is treated like an omitted heir in a succession  if
he comes back w/in 2 years of the signing of the judgment of possession, he can
demand immovable property from transferees by onerous title if they acquired the
immovable property from an heir in the judgment of possession.
c. Not entitled to recover fruits from successors, who are considered to be good faith
possessors. The successors may also keep improvements on the absentee’s immovable
property.
3. Absentee dies or is declared dead.
a. Presumption of death if absent for 5 years  judgment can be amended if new evidence
arises of the true date of death.
b. Absentee can’t be a successor if presumed or declared dead.

COMMUNITY PROPERTY

I. MATRIMONIAL REGIME
A. General
1. A matrimonial regime is the principles and rules that governs the ownership and management of
the property of married people:
a. Between the spouses; and
b. Toward third parties.
B. Types
1. Legal Regime (default)  do nothing and you will automatically get this
2. Contractual regime  parties make their own matrimonial agreement and regulate everything
3. Modified legal regime  partly legal and partly contractual (what isn’t modified will remain
subject to legal regime)
C. Matrimonial Agreements
1. Form requirements
a. Authentic act; or
b. Act under private signature duly acknowledged by the parties (w/ attestation clause for each
spouse)
2. Minors: will need written concurrence of parent/custodial parent/tutor, unless fully emancipated
3. Timing:
a. Before marriage (prenup): no court approval needed
b. During marriage: Generally, you need court approval, UNLESS

16
 i. You have moved to LA less than a year ago; or
ii. You want to subject yourself to the legal regime
4. Scope: can do anything that isn’t against public policy
a. Contributions to expenses of marriage
b. Apportion CP according to fixed shares
c. Reserve fruits of SP as SP
d. Provide that existing or future property will be subject to the matrimonial regime
e. Limits (cannot do this)
i. Contract out of interim periodic spousal support obligation (against LA public
policy)
ii. Renounce/alter order of succession
iii. Renounce/alter marital portion
iv. Limit the right that one spouse alone has to obligate the community or LAE
community property w/ respect to third parties
v. Agree that one or both spouses won’t request a partition of former CP

II. THE LEGAL REGIME

A. When Applicable
1. Domicile
a. Applies to spouses domiciled in LA, regardless of their domicile at the time of marriage.
b. Both spouses must be domiciled here (if only one is, it may affect choice of law isues)
B. Ownership of CP
1. Present undivided one-half interest in the community property
2. Undivided interest is inalienable prior to the termination of the regime
a. Attempt disposition by a spouse of his undivided interest by IV donation in favor of a third
person is an absolute nullity.
b. However, the community property itself is subject to LAE.
C. Classification of Assets
Classification Community Separate
-Property acquired through - Property acquired by spouse prior to establishment
spousal effort, skill or industry of of community property regime
either spouse during the existence
of the legal regime - Property acquired by a spouse with separate things
OR if acquired partially with community property,
- Property acquired with the value of the community thing must be
community things inconsequential

- Property donated to spouses - Property inherited by spouse OR donated to him

jointly individually (donor’s donative intent is dispositive
Composition of
Asset -Natural and civil fruits of -Damages awarded to a spouse in a breach of
community property contract action against the other spouse OR
sustained as result of fraud/bad faith in management
-Damages awarded for loss/injury of other spouse
to thing belonging to community
property -Damages/indemnity award to a spouse in
connection with the management of his separate
-ALL other property not classified property
as separate property by law
-Things acquired by a spouse as result of voluntary
partition of community property during the

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 community property regime

Community  Separate Separate  Community

Effect on Donated Interest: - Transfer to other spouse w/ stipulation that it
Transforms the interest into becomes part of the community, transforms it into
separate property of the done community property
Transformation
to Other Type Effect on Donee’s Existing What’s required:
Interest: UNLESS otherwise -Stipulate the thing is part of the community
provided, the equal interest of the -Transfer by onerous title must be made in writing
done also becomes part of donee’s -Transfer by gratuitous title must be made by
separate property authentic act

Form req: general form If the above form requirements are not met, the
requirements for donations donation is valid, but the property becomes SP, not
CP.
1. General Classification Principles
a. Rebuttable presumption that the things in the possession of a spouse during the existence of
the legal regime are community property.
i. To rebut, spouse contesting the designation must show the separate nature of the
property by a preponderance.
b. Classification is fixed at acquisition  not typically affected by post-acquisition events.
c. No mixed titles, but there are exceptions
i. Acquire additional interest in a thing
a. Spouse owns undivided interest in a thing as SP and acquires an additional
interest in the same thing with CP, the original interest will remain SP and the
subsequently acquired interest will be CP.
b. Spouse owns undivided interest in a thing as CP and acquires an additional
interest in the same thing with SP, the original interest will remain CP and the
subsequently acquired interest will be SP.

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 d. Real subrogation: if property forms part of either the SP or CP and is then converted into
another thing, the mass of the SP or CP will not be diminished  the new thing will take the
place of the old.
i. Example: husband acquires real estate prior to marriage, then sells it and invests the
profits in stock. Both the profits and the stock are separate property.
e. Estoppel by deed: a declaration in an act of acquisition that things are acquired w/ separate
funds as the SP of a spouse may be contested:
i. By the other spouse unless he concurred in the act; or
ii. By forced heirs and creditors of the spouse, regardless of the other spouse’s
concurrence
*This does not apply to LAE of the thing by onerous title
f. Commingling: community and separate funds will not lose their identity if commingled (i.e.
in bank account). Because of the presumption of community, the opponent of the designation
must prove that
i. Separate funds were deposited; and
ii. They were not later withdrawn  this is hard to prove; funds often become
“hopelessly commingled.”
iii. Asset acquired w/ commingled funds will be classified as CP unless the value of
the CP used to acquired is inconsequential compared to the value of the SP used.
2. Classification of Specific Assets
Earnings Property acquired through the skill, effort, OR industry of either spouse is
community property IF the effort was expended during the existence of the legal
regime

 Sweepstakes winnings: if awarded as a result of spouse’s skill/efforts to win the

sweepstakes and mail in the entry = community property

Contingency fee contracts: portion of the fee attributable to work performed

during the existence of the community is community
Fruits/Revenues of Natural/civil fruits of the separate property of the spouse are community property
Separate Property Fruits: things produced by another thing w/out diminution of its substance
Therefore, minerals aren’t fruits b/c result in diminution of its substance UNLESS
produced from a separately owned well/mine ARE FRUITS

Reservation by Declaration of Paraphernality: a spouse can unilaterally reserve

fruits/revenues as separate property by declaration in an authentic act/act under
private signature duly acknowledged

When Declaration is effective on:

Fruits of Immovables: copy provided to other spouse AND declaration filed for
registry in the conveyance records of the parish in which the immovable prop is
located

Fruits of Movables: copy is provided to other spouse AND declaration is filed for
registry in the conveyance records of the parish where the declarant is located
Earnings vs. Fruits Funds are earnings to the extent the spouse expended effort in generating the funds.
Example:
 No services = fruits and therefore separate property
 Services = valued equal to dividend  earnings and therefore community property
 Services = valued at ¼ of dividend 1/4 of dividend is earnings and ¾ is fruits

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Corporeal Assets -If asset is purchased w/ a down payment consistently ENTIRELY of separate funds,
Acquired Over then the asset is separate property and remains separate property even if community
Time funds are later used to pay off the loan

-Bond for deed contract (like installment sale) of an immovable: if later payments are
made during the regime, property will be community IF community funds contributed
ARE NOT inconsequential.

Insurance Renewal May be CP in whole or in part depending on the agent-spouse’s effort, skill, or
Commission industry during the existence of the CP regime. Allocation of burden of proof
depends on whether or not the commission is received during the regime:
-During regime: presumed to be CP, will be classified as SP to the extent that earning
spouse proves that the commission is not the result of labor, effort or skill expended
DURING the regime.
-After regime: not presumed to be CP, but will be classified as CP to the extent that
non-receiving spouse proves that the commission is the result of labor, effort or skill
expended DURING the regime.
Incorporeal Assets Pensions: classified on a pro rata basis
Defined Contribution Plans Portion of the total pension attributable to
(employer pays employee on contributions made during the legal regime is
retirement, benefits comprised of community
contributions to a trust for the
employee’s account)

Defined Benefit Plans Employer pays employee on retirement, stated

benefits based on the length of the employee’s
service
divided using the fixed percentage method,
based on the Sims formula (spouse won’t get
anything until employment terminates)
 OR using the present value method (spouse
will get something immediately)

Personal Injury Damage

In general Damages for injuries sustained during the

existence of the community by a spouse are
separate property

Exceptions -Portion of damages attributable to expenses

incurred by the community as a result of the
injury = community property

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 Portion of damages in compensation for loss of
community earnings = community property
Life Insurance Proceeds Proceeds: payable upon death are separate
property of named beneficiary

Ownership of Policy:
-Before marriage = separate
-During marriage = community IF community
portion isn’t inconsequential
Disability Payments If represent lost income, NOT deferred
compensation, the payments are community
property during the existence of community and
separate thereafter
Intellectual Property
Generally Intellectual property works in progress are
classified on a pro rata basis
Copyrighted works If created during the legal regime  The fructus
of copyrighted works are community property,
but usus and abusus of such works are separate
property
Goodwill of Business Goodwill of a community owned business is
community EXCEPT to the extent it is
attributable to any personal quality of the spouse
EX: if goodwill is attributable to spouse’s unique
style/other personal quality, then goodwill isn’t
classified as community
D. Management of Community Property
1. Generally, each spouse may act alone to manage, control, or dispose of community property
unless otherwise provided for by law.
a. This does not make the spouses the mandataries of one another
3. Will need concurrence of both spouses for:
a. LAE of community immovables; standing, cut, or fallen timber; furniture or furnishings
while located in the family home; all or substantially all of the assets in a community
enterprise; movables issued or registered as provided by law in the names of the spouses
jointly.
b. Harvest community timber
c. Donation of CP to third party  unless it is a usual or customary gift of a value
commensurate with the economic position of the spouses at the time of the donation.
3. When one spouse may act alone despite concurrence requirement:
a. Ratification by non-acting spouse of LAE of community immovable
b. Express renunciation of right to confirm by non-acting spouse
c. Express renunciation by spouse of right to participate in the management of the community
enterprise
i. Irrevocable revocation: may be irrevocable for up to 3 years
ii. Revocable revocation: if not expressly made irrevocable, it is in effect “until it is
revoked.”
d. Judicial authorization for one spouse to act w/out consent of other spouse may be made
upon showing
i. That the action is in the best interest of the family; and

21
 ii. The other spouse cannot or will not concur  incapacity, absence, being a dick
e. Spouse has exclusive right to manage CP
i. Alienation of movable assets of a community enterprise of which the spouse is the
sole manager
ii. Alienation of movables registered or issued in that spouse’s name
iii. Management and disposition of LLC interest of which the spouse is a partner or
member
iv. Judicial authorization when one spouse is an absent person
4. Inapplicable to concurrence requirement
a. Encumberances imposed by law (i.e. lien, judgment obtained by bank, etc)
b. Business entity that is NOT a legal entity (i.e. is not a corporation or partnership)
c. Transaction CONCERNING an encumbered asset that is not LAE (i.e. hiring real estate
agent to sell family home)
5. Mismanagement
a. Relative nullity
b. Spouse is liable for any loss or damage caused by fraud or bad faith in the management of
CP.
E. Termination of the Legal Regime
1. Terminates upon:
a. Death or judicial declaration of death
b. Divorce
c. Matrimonial Agreement terminating the community
d. Judgment decreeing separation of property
e. Declaration of nullity
2. Rights and duties regarding former unpartitioned CP upon termination
a. If legal regime terminates by death of spouse: general property rules regarding co-
ownership in individision apply.
b. If legal regime terminates in a manner other than death
i. Each spouse will own undivided one-half interest in former CP and its fruits and
products.
ii. Duty to preserve
iii. Concurrence requirement for LAE of former community property w/out
concurrence. This will be a relative nullity, unless it falls under one of the following
exceptions:
a. Movable registered or issued in spouse’s name
b. Alienation of movable assets in the regular course of business of a former
community enterprise of which the spouse is the sole manager
c. Judicial authorization of act alone  spouse must show that
i. Action is necessary;
ii. Action is in best interest of petitioning spouse and not detrimental to
other spouse; and
iii. The other spouse is absent, incapacitated, incarcerated, incompetent,
or acting arbitrarily.
iv. Court can award use and occupancy of former community home  can also order
the spouse to pay rent, or the parties can agree to that prior to the court order
v. Partition  spouses have right to demand partition of former CP at any time.
F. Classification of Obligations
Community Separate
Generally An obligation incurred by a spouse during the Obligations incurred prior to the
existence of a community property regime for establishment of a community
the common interest of the spouses or the property regime are separate

22
 interest of the other spouse. Presumption that obligations
obligations incurred during the existence of a
CP regime are community
Specific Obligations Alimentary obligations: imposed by law on a Obligations Arising DURING
spouse is deemed to be a community obligation, legal regime:
i.e. child support. -Generally—obligations incurred
during but are neither for the
Obligation incurred in action for divorce: common interest of spouses nor for
community obligation the interest of the other spouse are
separate obligations
-Obligations incurred for separate
property are separate obligations
-Obligations arising from
intentional torts, if not for the
benefit of the community are
separate obligations

Obligations arising AFTER

TERMINATION of legal regime
-Once the community regime has
ended, an obligation incurred by a
spouse is neither separate nor
community
G. Reimbursement Between Spouses
1. Due when there’s a mismatch between the classification of the funds used and the purpose for
which they were used
2. These claims are generally only assertable after the CP regime terminates
3. Scope: made form the patrimony of the spouse who owes reimbursement  his share in the
community and his separate property
4. Reimbursement is treated like an interest-free loan
5. Accession rule: owner of the ground owns all improvements placed upon it
Whose For Whom? Type of Obligation/ Reimbursement Limit
Asset? Who or What does value
it benefit?
Spouse’s Other spouse’s Separate Amount/value that N/A
SP separate estate the property had at
the time it was used
Spouse’s Community Community ½ the amount/value Can’t exceed the value of his
SP that the property had share of all community
at the time it was property after deduction of
used all community obligations.

For registered corporeal

movables, reimbursement
can be reduced if one spouse
has exclusive use after
termination of the CP regime.

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Spouse’s Family Community Full reimbursement Includes ordinary/customary
SP Expenses expenses and child-related
expenses

Community Spouse’s SP Separate Obligation ½ the amount/value No limit when community

property that the property had property is used to satisfy a
at the time it was separate obligation
used
Community Separate Separate property ½ the amount/value
that the community
property had at the
time it was used
Spouse Separate Uncompensated ½ of the increase
Property Labor of a Spouse attributed to the
common labor
Community Spouse’s Family home (repay Reduction of
Funds Separate purchase loan) principal
Property
H. Partition of Community Assets and Obligations
1. Voluntary partition: can be done anytime
a. Effect: changes legal classification of the things partitioned
b. Effective against third parties when filed for registry
c. Recision (5-year liberative prescription):
i. For vices of consent
ii. Lesion: spouse receives less than ¾ of FMV of his interest in the net value of the
community (generally 50%)
2. Judicial: can be done after the legal regime terminates
a. Procedure:
i. Classification: each spouse must file sworn descriptive list of community assets and
obligations w/in 45 days of service of the motion requesting partition. Each spouse
must either traverse or concur in the other’s classification w/in 60 days. If parties
disagree, trial is held to classify each asset.
ii. At partition trial, court will value the assets (at time of trial) and allocate all of the
community assets and liabilities. Court can appoint experts to help.
a. Goal = equality
iii. If allocation is unequal, the court will award an equalizing payment to the party
that did not get their share.
I. Creditors’ Rights
1. During Legal Regime
a. Both separate and community obligations may be satisfied using either CP or SP of the
spouse who incurred the obligation
b. Right of reimbursement if CP is used to satisfy separate obligation and vice versa
2. After termination
a. Debt incurred before or during the legal regime may be satisfied with property of the former
community and from the SP of the spouse who incurred the obligation. Includes obligation for
attorney’s fees and costs in a divorce action.

III. SEPARATION OF PROPERTY REGIME

A. Creation

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 1. By matrimonial agreement
2. By judgment of separation of property
a. Obtained by a spouse when his/her interest is threatened by other spouse’s fraud, fault,
neglect, incompetence, or disorder of affairs.
i. Retroactive to date of filing
b. Obtained by spouse of absent person  terminates the regime retroactively to the date of
filing of the petition
c. Obtained when spouses have filed petition for divorce
i. Must prove that they’ve been living separate and apart continuously for 30 days
from the date of or prior to the filing of the petition, and that they have not reconciled.
ii. Retroactive to date the petition was filed OR to the date the petition for divorce was
filed, if earlier.
iii. Reconciliation will reestablish the community regime retroactively to the day of the
filing of the motion or petition thereof, unless prior to the reconciliation the spouses
execute a matrimonial agreement to the contrary
a. No need for court approval
b. Effective against 3rd parties when filed for registry
d. Physically separated spouses
i. Living separately and apart continuously for 6 months
ii. Judgment will be granted upon the petition of either spouse
iii. Retroactive to day of filing
iv. Reconciliation will reestablish (same as above)

IV. CONFLICT OF LAWS

A. Movables
1. Use law of acquiring spouse’s domicile at time of acquisition
2. Exceptions
a. Funds used to acquire LA movable  use LA law
b. Hybrid quasi-community property: movables, wherever situated, that were acquired during
the marriage by either spouse while domiciled in another state shall be determined as follows:
i. If CP under LA law  treat it as CP
ii. if SP under LA law  treat it as SP, but the other spouse shall be entitled, in value
only, to the same rights with regard to the property as would be granted by the law of
the state in which the acquiring spouse was domiciled when he acquired it.
B. Immovables
1. Law of situs  use law of where the immovable is situated
2. Exceptions
a. Hybrid quasi-community property: immovables situated in LA acquired during the
marriage by either spouse while domiciled in another state
i. If CP under LA law  treat as CP
ii. If SP under LA law  treat it as SP, but the other spouse shall be entitled, in value
only, to the same rights with regard to the property as would be granted by the law of
the state in which the acquiring spouse was domiciled when he acquired it.
b. Death of spouse domiciled elsewhere  spouse’s immovables situated in LA and acquired
by spouse while domiciled elsewhere, which are not CP under LA law, are subject to the same
rights, in value only, in favor of the surviving spouse as provided by the law of the domicile
of the deceased at the time of death
c. Immovables situated elsewhere acquired by either spouse while LA domiciliary  classify
under LA law
C. Marital Portion
1. Awarded when one spouse dies “rich in comparison” to the other

25
 a. No set calculation, but look for a 5:1 ratio or more
b. “Poor” spouse’s earning capacity irrelevant
2. May be claimed by the “poor” spouse upon proof that the separation occurred w/out their fault
3. Applicable to any matrimonial regime and cannot be renounced or altered
4. Personal/nonheritable right
5. 3 year PP from date of death to claim
6. Right to advances
7. Calculation
a. 0 children: ¼ of succession in full ownership
b. 1-3 children: ¼ of succession in UF for life
c. 4+ children: usufruct of child’s share of the succession for life (i.e. if there are 5 kids, SS
will get 1/6).
8. Legacy left and payments due to SS should be deducted from marital portion

LOUISIANA PROPERTY AND ACQUISITIVE PRESCRIPTION

I. CLASSIFICATION OF PROPERTY
A. Common, Public, Private
1. Common: may not be owned by anyone, may be used freely in the manner which nature intended
a. Air
b. High seas
2. Public: vested in state or political subdivision; may be used by anyone but use may be restricted
a. Natural navigable waters
i. “Navigable”: capable of being used as a highway for commercial traffic
b. Territorial sea
i. The part of the Gulf of Mexico that is owned by LA
ii. Lake Pontchartrain
iii. Arms of the sea doctrine: small, irregularly shaped bodies of water in the vicinity
of the open gulf
c. Streets/highways
d. Seashore
e. Beds of navigable rivers and streams to the ordinary low water mark
f. Bottoms of navigable water bodies
3. Private: owned by private individuals or by state in its capacity as a private citizen
a. Canal built w/ private funds on private land
b. Bottoms of nonnavigable water bodies
c. Banks of navigable rivers and streams  subject to limited public use that must be
incidental to navigation on the water (i.e. mooring is ok but camping on the bank is not)
i. Test for river: consider size and shape, depth, historical designation, current of
waters
B. Roads
1. May be either public or private
2. Making a road public
a. Formal dedication: valid donation
b. Statutory dedication: recordation of map or plat that describes streets, etc. and then
dedicates the streets to public use
c. Tacit dedication: govt. maintains the road for more than 3 years
d. Implicit dedication: owner’s plain intent to dedicate + public’s clear intent to accept
C. Corporeal or Incorporeal
1. Incorporeal: things with no body that are comprehended by understanding but cannot be detected
by the senses (i.e. property rights and actions)

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 a. Incorporeal immovable: rights and actions that apply to immovable’s (i.e. mineral
servitudes, royalties, and leases)
b. Incorporeal movables: rights and actions that apply to movables (i.e. lease over car) and
interest in juridical person
2. Corporeal: things that have a body and can be felt or touched
a. Corporeal movable: can be moved normally from place to place
D. Movable or Immovable
1. Immovables (subject to pure race public records doctrine  transfer or encumberance must be
recorded to affect third parties)
a. Land (and its component parts)
i. Component parts: buildings, other constructions, standing timber, and ungathered
crops  unity of ownership needed (i.e. if the same person owns both, the building is
an immovable because it’s a component part, if there is no unity of ownership, the
building is a separate immovable).
b. Buildings
i. Factors for determining if something is a building:
a. Inhabited by people?
b. Cost
c. Temporal permanence
d. Prevailing notions of what constitutes a building
ii. Component part of a building: either things that are attached to a building and that,
according to prevailing uses, serve to complete a building of the same general type
(i.e. commercial, residential, etc), without regards for its specific use or a thing
attached to such a degree that it cannot be removed w/out causing substantial damage
to the building or the person removing it
a. Examples: doors, shutters, plumbing, cabinets
b. Permanent attachment to building is required can’t remove it w/out causing a
lot of damage
c. Standing timber
i. If there is no unity of ownership  the owner of the land can compel the owner of
the timber to remove it within a reasonable time.
ii. Severed timble is a movable
d. Component parts  integral parts of the land, building or other constuction (i.e. bricks,
sheet rock, concrete slab, etc)
i. Deimmobilization (conversion into a movable):
a. Component part is so damaged and deteriorated that it no longer serves the
use of the immovable (excluding things that are detached for repair)
b. When owner of immovable
1. Executes an act translative of ownership;
2. Delivers the component part to an acquirer; and
3. The acquirer in good faith
c. In the absence of rights of third persons, the owner of the immovable
detaches and removes the component part
e. Other constructions permanently attached to the ground  immovable if there is unity of
ownership with the ground; otherwise are movable
i. Component part: either a thing that is attached to an other construction and serves
its principal use or a thing attached to such a degree that it cannot be removed w/out
causing substantial damage to the other construction or to the person removing it
a. Example: valves, piping, access ladders attached to a water tower
f. Unharvested crops and ungathered fruits  immovable if there is unity of ownership with
the ground because they are a component part of the land; otherwise are movable

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 g. Immovables by declaration: owners may “declare” and register things such as appliances,
farm equipment, and machinery as component parts of an immovable if the following
conditions are met:
i. Unity of ownership
ii. Immovable is not a home
iii. Component part is placed on the immovable for its “service and enjoyment;” and
iv. Declaration is filed for registry in the conveyance records of the parish in which the
immovable is located
2. Movables: everything else
a. Movables by anticipation: unharvested crops or ungathered fruits owned or encumbered by
a security interest held by someone other than the landowner

II. ACCESSION
A. General
1. Ownership of a thing includes ownership by accession everything that it produces or that is united
with it.
B. Fruits
1. Owner of a thing acquires the ownership of its natural and civil fruits, subject to the rights of third
parties
2. Types of fruits
a. Natural: fruit, crops, livestock  ownership depends on the time its gathered or severed
b. Civil: rent, stock divident  ownership depends on when the fruit is apportioned
3. Possessor’s rights to fruits and products
a. Good faith possessor: does not own ungathered fruits, but is entitled to reimbursement of
expenses for ungathered fruits
b. Bad faith possessor: must restore the fruits he has gathered or their value, subject to his
claim for reimbursement of expenses. Has no right regarding ungathered fruits.
C. Products
1. Products, unlike fruits, result in the diminution of a thing  non-renewable resources (i.e. oil and
gas prior to extraction)
2. Products belong to the owner, but a good faith possessor has the right to reimbursement for
expenses for products derived from the thing
D. In Relation to Immovables
1. Generally, unless provided otherwise by law, ownership of a tract of land carries with it the
ownership of everything that is directly above or under it.
2. Improvements
a. La. Civ. Code permits separate ownership of improvements
i. If claim of separate ownership made against owner of ground: must prove that the
owner consented to the improvements
ii. If claim is made against 3rd party, must prove consent of the landowner at time the
improvement was made AND timely filing.
b. Right of separate owner to remove improvements
i. Separate owner may remove improvements when he no longer has any right to keep
them there, subject to the obligation to restore the property to its former condition
ii. If not removed w/in 90 days of written demand, landowner may acquire ownership
of the improvements after giving written notice to the owner. Landowner will owe
nothing.
3. Component parts
a. Other component parts and integral parts belong to the owner of the immovable.

28
 b. If the part was incorporated w/ the owner’s consent, the installer may remove it, subject to
the obligation to restore the property to its original condition. If not removed after demand,
the owner may have them removed at the owner’s expense or pay and keep them.
4. Claims: one who has lost the ownership of a thing to the owner of an immovable may have a claim
against him or a third person
a. Construction by landowner with another person’s materials
i. May retain the construction/planting/work, regardless of good or bad faith, as long
as he reimburses the owner of the materials for their current value and repairs any
injury he caused
b. Construction made by good faith possessor  owner of the immovable may not demand
their removal or demolition, but is bound to keep them and may pay the possessor his choice
of:
i. Cost of materials and workmanship
ii. Current value of improvement
iii. Enhanced value of immovable
c. Construction made by bad faith possessor  owner of the immovable may either
i. Demand their demolition and removal at the possessor’s expense and claim damages
for any injury that he sustained;
ii. Keep and pay the current value of improvement
iii. Keep and pay the enhanced value of immovable
d. If possessor’s activities did not improve the land, the landowner will have an action for
damages (i.e. beautiful tree, laid foundation for custom-made house)

III. TRANSFER OF OWNERSHIP

A. Transfer of Immovables
1. Effective between parties: when they have executed a written agreement that transfers ownership
2. Effective as to third parties: when instrument is filed for registry
B. Movables
1. Ownership is transferred voluntarily by a contract, between the owner and a transferee, that
transfers ownership.
2. When effective
a. Between parties: according to agreement
b. As to third parties: upon delivery to transferee
C. Bona Fide Purchaser Doctrine
1. Lost and Stolen Things
a. Rule: If a thing is lost or stolen, the person having possession of it cannot transfer its
ownership to another.
i. Stolen = true owner did not consent to its possession by another  excludes fraud
ii. This rule is subject to acquisitive prescription
b. If possession has been transferred to a third party, the owner must reimburse the purchase
price if the transferee bought the thing in good faith from a merchant who customarily sells
such things
c. The original owner will prevail against a third-party buyer unless the thing has been sold
by operation of law
2. Vices of Consent
a. If an owner of a thing transfers ownership to a transferee and the transaction is tainted w/ a
vice of consent and the transferee than transfers possession to a third party transferee, the third
party transferee gets possession if he was in good faith and paid fair value for the thing.
3. For cases not covered by the above 2 rules, weight negligence and innocence of the two parties and
award ownership to the less negligent party.

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 IV. CO-OWNERSHIP
A. Ownership in Indivision
1. Ownership of the same thing by two or more persons.
2. Presumption of equal shares
B. Rights and Duties of Co-Owners
1. Share fruits and products in propotion to their ownership after deduction of the cost of production.
2. Use and manage the thing
a. By agreement of the co-owners; or
b. If there is no agreement,
i. By destination of the thing (historical use); or
ii. By court order
3. Alienate their share of the co-owned  for LAE or substantial alteration or improvement of the
whole thing, all co-owners must consent
4. Right to reimbursement for necessary expenses and expenses for ordinary maintenance and repairs,
subject to a reduction commensurate with the value of that co-owner’s exclusive enjoyment.
5. For improvements without consent:
a. If consistent w/ the use of property  co-owners must keep and pay either:
i. Cost of materials and labor,
ii. Enhanced value of immovable; or
iii. Current value of improvement.
b. If not consistent w/ the use of the property or if there’s express opposition from other co-
owners before the improvement was made  co-owners may either
i. Demand demolition; or
ii. Keep and pay
a. Current value of materials and workmanship, or
b. The enhanced value of the immovable.
C. Partition of Co-Ownership
1. There is a right to partition unless:
a. There is an agreement to the contrary, or
b. The law provides for the contrary
2. Exclusion of partition
a. Can be excluded by agreement for up to 15 years.
b. If the use of the thing held in indivision is indispensable for the enjoyment of another thing
owned by one of the co-owners, partition is excluded (example: cemetery plots/parents’
graves)
3. Modes of partition
a. Voluntary: co-owners agree on the mode of partition; this type of partition can be rescinded
for vices of consent or for lesion (below ¾ of FMV)
b. Judicial: real rights will not be effective; no prescriptive period
i. In kind
ii. By licitation

V. SERVITUDES
A. Ownership
1. Rights
a. Usus
b. Fructus
c. Abusus
2. Types
a. Full = all three rights
b. Naked = abusus only

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B. Servitudes
1. Personal: charge on a thing to benefit a particular person  advantage conferred to a specific
person
2. Predial: charge on dominant estate to benefit the dominant estate  advantage conferred to the
estate itself, or to the owner for himself, his heirs, and assigns

VI. PREDIAL SERVITUDES

C. Predial Servitudes
1. Classification: incorporeal immovable
2. Types
a. Natural (arise from natural situation of the estate)
i. Natural drainage: estate below is bound to receive the surface waters that flow
naturally from the estate above it, unless the flow has been created by man
a. Dominant estate can’t make the servitude more burdensome
b. Servient estate can’t prevent the flower of water
ii. Bordering on water: the owner of an estate that borders on water may use it as it
runs
iii. Water running through estate: owner of an estate through which water runs may
use it, but cannot stop it or give it another direction  bound to return it to its
ordinary course
b. Legal (imposed by law)
i. Limitations on ownership
a. Keep buildings in repair
b. Refrain from building projections beyond the boundary of the estate
c. Fix roof so that rainwater does not drip on neighbor’s ground
d. Encroaching buildings: if landowner in good faiths constructs a building past
the boundary of his estate and the owner of that land does not complain w/in a
reasonable time after he knew or should have known or complains only after
the construction is substantially completed, the owner of the building will
acquire a predial servitude on that land by compensating the estate owner for
the value of the servitude and other damages
ii. Common enclosures
a. Common walls
1. Rule: Landowner who builds first has the right to rest half of the wall
on his or her neighbor’s land if the wall:
A. Is made of solid masonry,
B. Is at least as high as the first story, and
C. Is not more than 18 inches thick (plus 3 inches of plaster)
2. Wall may become common upon building if neighbor pays ½ of its
cost or later if neighbor pays ½ of its current value.
3. Presumed to be common up to the highest point of lowest building.
4. Co-owners share expenses in proportion to their interest.
5. If no construction supported by wall, may get out of repair obligation
by abandoning right to use it in writing.
b. Common fences  presumption of commonality if on boundary
c. Common ditches  presumed to be common absent proof to the contrary
d. Common plants  plants on boundary line are presumed to be common
1. May demand removal of roots/branches that extend onto your land
and interfere w/ enjoyment of your property
iii. Rights of passage for enclosed estates

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 a. Indemity: Owner of an estate that has no access to a public road may claim
right of passage over neighboring property to nearest public road
1. Must indemnify the servient estate for damages  prescriptive
period for right to demand fees
2. Extent: type of traffic that is reasonably necessary to use the
enclosed estate
3. May construct road as necessary
4. Location: must be shortest route, but owner of servient estate may
relocate to a more convenient place at his own expense as long as it
doesn’t inconvenience the dominant estate
b. Gratuitous right of passage: passage from dominant estate to public road
must be furnished gratuitously by servient estate on the place the passage was
previously exercised, in the case of:
1. Partition in kind, or
2. Voluntary alienation of estate
c. No right of passage if seller encloses himself due to a voluntary act and
does not reserve a right of passage.
c. Conventional
i. Governed by:
a. Title
b. If title is silence, the Civil Code
ii. Types
a. Affirmative  owner of SE must allow owner of DE to do something
1. Right of way
2. Right of drain
3. Right of support
b. Negative  owner of SE cannot do something
1. Prohibition on building
2. Prohibition on type of use
c. Apparent  perceivable by exterior signs
1. Roadway
2. Window in common wall
3. Aqueduct
d. Nonapparent  not perceivable by any exterior signs
1. Prohibition
iii. Establishment
a. By title
1. Need auth act or act under private signature
2. Can NOT be established by usufructuary
3. May be anticipatorily established for property you do not yet own
b. Destination of owner
1. Requirements
A. Two estates owned by one owner,
B. A relationship that would be a conventional servitude if
owned by different people,
C. When the same owner ceases to own both estates, an
apparent conventional servitude is established unless there’s
an express provision to the contrary
2. Additional requirement for nonapparent conventional servitudes:
owner must have previously filed for registry a formal declaration
establishing the servitude

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 c. Acquisitive prescription  cannot establish nonapparent servitudes in
this manner
1. 10 years  good faith + just title
2. Otherwise, 30 years
iv. Rights of Dominant Estate
a. Make necessary works (enter estate, leave building materials, etc)  must
cause as little damage as possible and clean up mess as soon as possible
b. Right to compel servient estate owner to make works at his expense  can
agree to this in the act establishing the servitude
c. Division  each part of the DE will get the servitude, provided it does not
become more burdensome on the SE
d. Right to freedom from interference from SE  exception: SE may move the
servitude to an equally convenient place if it becomes burdensome or prevents
him from making necessary repairs
3. Requirements
a. Benefit to dominant estate
i. Can be a potential benefit
ii. If at any time there cannot be any benefit or potential benefit, the servitude won’t be
permitted
b. Burden to servient estate
c. Two estates owned by different people
i. Inseparability of servitude
a. Passes with the dominant estate when ownership changes.
b. Continues as a charge on the servient estate when ownership changes.
ii. Proximity/contiguity not required
4. Nature of the Obligation
a. Cannot impose an affirmative duty on the servient estate (but can impose the duty to keep
the estate suitable to allow something to be done on it)
b. Can only impose a duty to abstain from doing something or a duty to permit the dominant
estate do something on it
c. Cannot impose private transfer fee obligation
5. Extinction
a. Abandonment by SE owner  need written act, DE owner is bound to accept it
b. Confusion: DE and SE become owned by same person
c. Expiration of term (as provided in the establishing act) or under resolutory condition
d. Total and permanent destruction of either DE or SE
i. A temporary uselessness because of a change in circumstances will not extinguish
the servitude, but prescription will continue to run.
e. Prescription of Non-Use for 10 years
i. Affirmative servitude: prescription starts on date of creation, is interrupted by use,
and starts again after termination of use
a. Use by co-owner in indivision
b. Use by third party that appertains to DE (i.e. home health care worker using
roadway)
c. Partial use
d. NOT use of accessory right, use by trespasser
ii. Negative: prescription starts on date of contrary act
iii. Prescription will be suspended for up to 10 years if the DE owner is prevented
from using the servitude by an obstacle which he or she is powerless to remove 
exceptions: building on DE is destroyed, minority/disability of DE owner will not
suspend prescription

33
 f. Renunciation by owner of DE  express, written
g. Dissolution of the right of the grantor

VII. PERSONAL SERVITUDES

A. Usufruct:
1. General
a. Real right of limited duration on the property of another  usufructuary will get rights of
use and enjoyment (usus + fructus)
b. Classified as an incorporeal movable or immovable.
c. Either
i. Conventional (created by juridical act); or
ii. Legal (created by operation of law)  parents/kids or surviving spouse
d. Can successive  as long as usufructuary exists or is conceived at the time of creation
e. Can be granted jointly to two or more persons
i. Divided shares  termination of usufructuary’s interest inures to the benefit of the
naked owner
ii. Undivided shares  termination of usufructuary’s interest inures to the benefit of
the survivors
f. Partition: both usufructuaries and naked owners can only partition their own interests 
exception a person having a share in full ownership can demand partition (usufructuary and
naked owner with complementary interests may combine them for this purpose)
2. Rights/Duties of Usufructuary
a. UF over consumables:
i. Comsumable = thing that cannot be used w/out diminishing its substance (food,
money, bonds, bank deposits, promissory notes, etc)
ii. Usufructuary becomes owner of the consumable and may LAE as he sees fit, but
when the UF ends, he must either:
a. Pay the value of the items at the time the usufruct began
b. Replace them w/ like things of the same quantity and quality
b. UF over nonconsumables
i. Noncomsumable = things that can be used w/out their substance being altered,
subject to natural deterioration (shares of stock, land, house, animals, furniture, car)
ii. Right to possess them and derivate and profits and advantages they may produce
iii. Must act as a prudent administrator
iv. Must return them to the usufructuary at the end of the usufruct
c. Right to fruits  what/how many fruits you get depends on when they accrue
i. Natural fruits accrue when they are severed
ii. Civil fruits accrue when apportioned
iii. Special categories
a. Interests in juridical person
1. Usufructuary gets: voting rights for shares of stock, receive cash
dividends declared during the usufruct
2. Naked owner gets: stock divideds and liquidating dividends (subject
to the usufruct), stock warrants and subscription rights (free of the
usufruct)
b. Trees
1. General rule: usufruct of land does not include right to cut down
trees, which are generally not fruits  usufructuary may remove trees
for own use on the property

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 2. Exception: timberlands or tree farm  usufructuary may retain
proceeds as long as he acts as a prudent administrator (this may include
the obligation to clear-cut part or all of the timber)
c. Animals
1. Usufructuary must act as prudent administrator  may alienate
but will have to pay naked owner the value of the herd when sold
2. Death of animals
A. If some of herd dies  replace from increase of herd
B. If entire herd dies w/out usufructuary’s fault  naked owner
bears the loss
d. Sale of property on usufruct
i. Enforcing an encumbrance created before the usufruct was created will terminate
the usufruct  usufruct will attach over any procceds that remain after sale
a. Usufructuary may advance funds to prevent the sale  naked owner must
then reimburse him without interest for the principal paid at the end of the
usufruct
ii. Sale of the property to satisfy the usufructuary’s debts will not terminate the
usufruct
iii. Naked owner may dispose of the property but may not thereby affect the usufruct
e. Right to make improvements
i. At usufructuary’s cost, with naked owner’s written consent OR after giving notice to
naked owner and getting court approval (for improvements a prudent administrator
would make)
ii. Right to remove, must restore property to former condition, will not be reimbursed
for improvements he can’t remove
f. Right to LAE his right of usufruct  contract will cease at end of usufruct and usufructuary
is liable for third-party abuse, damage, etc
g. Duties:
i. Make inventory
ii. Give security in an amount of the value of the property subject to UF
iii. Care for property  liable for losses arising from fraud, default, or neglect
iv. Duty to make ordinary repairs, regardless of the cause  naked owner may compel
the usufructuary to make these repairs
a. Naked owner is responsible for extraordinary repairs, which are those that
involve a reconstruction of the whole or a substantial part of the property
v. Pay periodic charges (i.e. property taxes)
h. Prohibited:
i. Creating a predial servitude
ii. Disposing of nonconsumables subject to UF, without express grant of this right
(may LAE, but not donate inter vivos) or permission from naked owner  exception:
a. Movable that has been gradually and substantially impaired by use, wear
or decay  must act as prudent administrator, usufruct will attach to the
proceeds, usufructuary must reimburse naked owner for any difference
between value (at time of sale) and proceeds
3. Rights/Duties of Naked Owner
a. Right to dispose of naked ownership or establish real rights as long as they don’t affect the
usufruct
b. Duties
i. May not interfere w/ enjoyment of the usufruct
ii. May not make alterations to the property
4. Termination of Usufruct

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 a. Usufructuary is natural person  upon his death, upon expiration of term
b. Usufructuary is juridical person  30 years, upon expiration of term, upon dissolution or
liquidation of the JP
c. Prescription of non-use: 10 years
d. Confusion  ownership and usufruct united in same person
e. Abuse  maybe—would have to be a very serious violation
f. Express written renunciation by usufructuary
g. Permanent and total destruction of property caused by accident, force majeure, or age
i. If the loss is caused by the fault of a third party  usufruct will attach to suit for
damages
ii. If insurance proceeds are due, the usufruct will attach to them
h. Sale of property to pay debt  unless there are proceeds
B. Right of Habitation
1. General: the nontransferable real right of a person to dwell in the house of another
2. Established and extinguished in the same manner as a usufruct
3. Duties of right holder: act as prudent administrator, deliver property to owner in same condition he
found it, excepting ordinary wear and tear
4. Family can live with you too and you can have guests, etc
C. Right of use
1. General: a personal servitude that confers a specified use of an estate that is less than full
enjoyment (i.e. gas pipeline servitude)
2. May be transferred unless prohibited by law or contract
3. Does not terminate upon the death of the natural person or dissolution of the juridical person,
unless the contrary is provided by law or contract
4. Differs from usufruct  does not exhaust the utility of the property

VIII. BUILDING RESTRICTIONS

A. Defined
1. Charges imposed by the owner of an immovable pursuant to a general plan that governs building
standards, specified uses, and improvements.
2. Plan must be
a. Feasible; and
b. Capable of being preserved
3. Incorporeal immovable/real right
B. Duties of Estates Subject to BRs
1. BR may impose affirmative duties reasonable and necessary for the enforcement of the general
plan  may be enforced by mandatory or prohibitory injunctions
2. BR may NOT impose private fee transfer obligations
C. Establishment
1. Juridical act executed by
a. Owner of the immovable; or
b. Owners of all the affected immovables
D. Termination and Modification
1. May be modified or terminated as provided in the act.
2. If act is silent:
a. May be terminated or modified (to be less restrictive) by agreement of
i. ½ of owners if restrictions in place for 15 years
ii. 2/3 of owners if restrictions in place for 10 years.
b. May be made more restrictive: by agreement of all owners
3. Terminated by two-year liberative prescription period  begins to run at commencement of
noticeable violation

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 4. Terminated by abandonment of whole plan or abandonment of a particular restriction
E. Interpretation
1. Doubt as to existence, validity, or extent are resolved in favor of the unrestricted use of the
immovable.

IX. ACQUISITIVE PRESCRIPTION, POSSESSION, AND OCCUPANCY

A. Possession
1. Defined: control or detention of a thing done for own behalf either by yourself or through an agent
w/out the owner’s permission
2. Acquiring possession = animus (intent) + corpus (take corporeal possession)  need both
a. Animus
i. Presumption: one who detains a thing intends to possess it as the owner 
exception: when the person began to possess in the name of and for someone else
ii. Precarious possession: exercise of possession with the permission of or on behalf of
the owner
a. Precarious possessor is presumed to possess for another even if he intends to
possess for himself
b. Terminaton
1. Co-owner: when he demonstrates this intent by overt and
unambiguous acts sufficient to give notice to co-owner
2. Non-owner: when he gives actual notice of this intent to the person
on whose behalf he is possessing
b. Corpus
i. Defined: exercise of physical acts of use, detention, or enjoyment over a thing 
depends on the use for which the land is destined
ii. Civil possession: once corporeal possession is acquired, the owner can maintain it
simply by having the intention to possess as owner (i.e. paying property taxes even
though you’re not there
iii. Constructive possession: possessing to the limits of your title or, in the absence of
title, possessing only the area that you actually possess
a. Good faith and just title not required
b. Contiguity required
3. Tacking: when possession is transferred, the possession of the transferor is added to that of the
transferee as long as there as been no interruption of possession  need a juridical link (universal or
particular title evidencing the transfer)
a. For 10-year AP, a particular successor needs food faith for tacking to work.
4. Vices of possession: possession that is violent, clandestine, discontinuous or equivocal has no legal
effect
5. Loss of Possession
a. Abandonment
b. Eviction
6. Conflicts in Possession
a. Only one person may possess something at a time, unless they’re acting in concert  first
person remains the possessor unless the second possessor evicts him by effectively preventing
him from exercising possession for at least a year
b. Corporeal detention trumps civil and constructive possession
B. Occupancy
1. Defined: the taking of possession of a corporeal thing that does not belong to anyone  occupant
will acquire ownership the moment he takes possession
2. Requirements:
a. The thing is a corporeal movable,

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 b. The thing belongs to no one, and
c. The captor takes possession of the thing.
3. Occupancy of animals
a. Wildlife: special laws govern the taking of possession of wildlife
b. Captor obtains ownership of wildlife captured on the land of another without the permission
of the landowner to hunt or fish there
c. Wildlife within enclosures: privately owned, so you can’t occupy them
4. Treasure:
a. If found in a thing belonging to no one or to the finder  complete ownership
b. If found in a thing belonging to another  must share half
C. Acquisitive Prescription of Immovables
1. Defined: the acquisition of ownership or other real rights through possession or use for the
requisite statutory period
2. Ten-year AP: Requirements
a. Possession for 10 years
b. Good faith  the honest and reasonable belief in light of objective circumstances that you
are the owner of the property
i. Standard: person of ordinary business experience
ii. Look at price, whether property is sold w/out warranty of title (quitclaim deed).
iii. Good faith is presumed
iv. Good faith is generally only needed when possession commences
c. Just title  a juridical act sufficient to transfer ownership or another real right.
i. Must be:
a. Written;
b. Valid in form; and
c. Failed for registry
b. Transfer of undivided interest in an immovable is just title only as to that interest
d. A thing susceptible of possession through AP  must be a private thing
3. Thirty-year AP: Requirements
a. No good faith or just title requirements  only need 30 years of possession and a thing
susceptible of possession through AP
b. Extends only to land that has been actually possessed, not land that is constructively
possessed.
4. Interruption of prescription: interrupted when possession is lost unless the possessor recovers
possession within one year, or later if he recovers by means of an action brought w/in one year.
5. Prescription runs against everyone
D. Acquisitive Prescription of Movables
1. Three-Year AP
a. Possession as owner w/out interruption for 3 years,
b. Good faith, and
c. Juridical Act sufficient to transfer ownership (just title)
2. Ten-Year AP: only need 10 years of possession as owner w/out interruption  do not need just
title or good faith
E. Acquisitive Prescription Time Limits Chart
Movable Immovable
Good Faith & Just Title 3 years 10 years
Bad Faith & No Just Title 10 years 30 years

X. CONFLICT OF LAWS
A. Immovables (law of situs)
1. If situated in LA  use LA law

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 2. If situated out of state  use that state’s law
B. Corporeal Movables
1. Use the law of the state in which the movable was situated at the time of acquisition of the right
2. If the movable is later moved to LA, use LA law if:
a. The right is incompatible with LA law,
b. The right holder knew or should have known that it was moved to LA, or
c. Justice and equity so dictate to protect third parties (i.e. watch stolen in TX and sold in LA)
C. Incorporeal Movables
1. Serious impairment test
D. Classification of a Thing
1. Use the law of the state where the thing is situated.

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