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Civil Law Property
Southern University Law Center
Odinet, Christopher K.

CIVIL LAW PROPERTY STUDY GUIDE

Property-exclusive right to control an economic good, corporeal or incorporeal, refers to rights, obligations, privileges and restrictions that govern the relations of man w/ respect to things of value

I. DOMAIN OF PROPERTY LAW

Things

Ø Physical things that exist in time and space and can be sensed

Ø Objects exist only in the mind that cannot be sensed, but have a certain utility or value for persons, power and privileges

Ø Objects which a person might hope to draw some utility or benefit from

Rights related to things

1. Patrimonial rights

Ø Assign value

Ø Whoever bounds himself personally is obliged to fulfil his engagements out of all his property, movable and immovable, present and future

2. Real rights

Ø Confers direct and immediate authority over a thing, holder may use thing, collect the fruits of that thing, or even dispose of that thing without having to depend on permission of anyone else

Ø Can be held against the world or opposable to everyone-right must be respected, holder can get juridical relief against anyone who infringes on that right

Ø Pursuit-if thing changes hands to someone other than he who started with it, the holder of right can assert the right and get back the thing.

Ø Sticks to the thing no matter into whose hands the thing passes

1. Principal Real Rights; property; connects a person to a thing

2. Accessory Real Rights; connected w/ a thing attached;

mortgages, movables; obtain judicial relief if someone tries to

interfere with rights in thing you own.

3. Obligation

Ø A legal relationship where a person-obligor-is bound to render a performance in favor of another-obligee. Performance may consist of giving, doing, or not doing something.

Ø I can only enforce my contract against you

II. THINGS

Common, Public, & Private

Common

Ø Those that may be freely used by everyone with use nature has intended- (air, high seas, sunshine, wind, rain)

Ø Cannot be owned by anyone-completely insusceptible of ownership

Public

Ø Owned by state or its political subdivisions in their capacity as public persons

Ø If owned in public capacity as sovereign, then public

Ø Running waters; bottoms of natural navigable water bodies, sea territory and seashore

Ø Streets and public squares may be owned by political subdivisions of state

Ø Wildlife: only for conservation of natural resources-administrative advantages

Public and common things subject to public use

Ø Everyone has right to use for public use provided they don’t cause injury to property of adjoining owners

Ø Fish in rivers, ports, harbors

Ø Land on seashore, fish, shelter himself, moor ships, dry nets

Ø Seashore within limits of a municipality is subject to its police power and public use

Private

Ø Owned by the state or its political subdivision in their capacity as private persons

Ø If owned in private capacity as proprietor, then private

Necessarily Public v. Adventitiously Public

Necessarily Public

Ø Owned by state; State can’t alienate it

Ø Ordinary person can’t own it

Ø Constitution or legislature provision

Ø bed of navigable water body, running waters, seashore, and waters and bottoms of Gulf of Mexico (if you find a legis provision or stat, you know it cant be private)

Adventitiously Public

Ø no constitution or statutory provision

Ø subjected to public use; public squares, public roads, public parks; public drainage ditches (political subdivisions)

Ø although by their nature they are alienable (could be owned by private persons) they are applied to some public service.

Landry test: 3 prong test

o Test tells us that some other things (public airports, museums, etc.) even though owned by the state are private things. Ex) Airports – serves a quasi-commercial purpose (charging people to fly), a

roads or streets have been kept up or maintained for 3 years under some governmental authority,

o Don’t have to have public use

o If landowner shows objection; time stops

o Irrevocable

o The reason it is called tacit is because you don’t have to have the consent of the landowner.

Corporeal v incorporeal

Corporeals

Ø things that have a body, whether animate or inanimate, and

Ø can be felt or touched-

Ø Car, house, cold hard cash, clothes, includes electricity, energy , radiowaves, nuclear power-don’t have body but can be measured

Ø No authentic act, manual gift (delivery)-handed over

Ø Susceptible of possession

Incorporeals

Ø no body,

Ø comprehended by the understanding-Rights of inheritance, servitudes, obligations, right of trademarks, stocks, right of intellectual prop

Ø Requires authentic act

Ø Deemed to be delivered as of the moment at which the instrument through which sold or transferred is executed

Ø Not susceptible of possession

Movable v. Immovable

Movable

Ø All things, corporeal or incorporeal, that the law does not consider as immovables, are movables.

Ø Improvement belongs to owner of land

Immovable

Ø What is immovable according to the code is whatever the legislature says is immovable.

Ø Lands, buildings and other constructions

Ø Sale can be rescinded by lesion-if sold for less than ½ value by seller

Ø Additions belong to person made it w/ consent of owner

Ø La. Race system to record; doesn’t matter bad faith or good faith