As the Chinese Proverb goes, “Anyone can buy a good home, but good neighbors are priceless.” But what if the home is in the French Quarter, famous (infamous?) for its bars, denizens, and, from a property law standpoint, boundary, alley, common wall, and servitude issues? Add in neighbors that strongly dislike one another and the result is a case currently being litigated in the Orleans Parish Civil District Court that illustrates a gap in Louisiana law.
Magner v. Deas
In Magner v. Deas, Orleans Parish Civil District Court Case No. 2022-5431,[1] the parties are neighbors in the 900 block of Governor Nicholls Street in New Orleans. An exterior wall of the plaintiffs’ house is on the property line between the plaintiffs’ estate and the defendant’s estate. The plaintiffs’ house does not encroach on the defendant’s estate.
Between that exterior wall and the defendant’s house is an alley approximately five feet wide. The alley is entirely on the defendant’s estate. The plaintiffs wish to erect scaffolding in the alley to facilitate the repair of the upper portion of the exterior wall. The parties tried to reach an agreement concerning the plaintiffs’ use of the alley. No agreement was reached and litigation ensued, with the plaintiffs claiming that they are entitled to a servitude over the defendant’s estate to repair and maintain the exterior wall.
The case reveals a gap in Louisiana law. No legal servitude exists over an estate for the repair and maintenance of a building on an adjacent estate when the building does not encroach. The plaintiffs pled two theories to attempt to bridge the gap.
First, the plaintiffs cited Civil Code article 660. That article provides, in pertinent part, that an owner of buildings is “bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor or to a passerby.” La. Civ. Code art. 660 (emphasis added). However, the plaintiffs did not assert that the conditions of the exterior wall requiring repair created a risk of harm to their neighbors or to those passing by on Governor Nicholls Street. Rather, the plaintiffs sought a servitude on the defendant’s estate to “secure their home from water intrusion and structural instability.”
Next, the plaintiffs cited two cases grounded in Civil Code article 670: Lakeside Nat’l Bank v. Moreaux, 576 So. 2d 1094 (La. App. 3 Cir. 1991), and Bushnell v. Artis, 445 So. 2d 152 (La. App. 3 Cir. 1984). Both cases involved a landowner placing a portion of his building on a neighbor’s estate, encroaching without permission or right and, consequently, implicated article 670:
When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.
La. Civ. Code art. 670 (emphasis added). The legal servitude contained in article 670 “provides a predial servitude in favor of a landowner who in good faith constructs a building that encroaches on an adjacent estate.” Bushnell, 445 So. 2d at 154. Article 670 was enacted in 1978 “to empower the courts with discretionary authority to grant a predial servitude to landowners who constructed a building in good faith which encroached on an adjacent estate.” Id.
The Bushnell court went further than the text of Civil Code article 670. The article constricts the servitude to “the land occupied by the building.” Nevertheless, the Bushnell court found that a servitude a few feet beyond the footprint of the encroaching building was proper to allow the defendant enough room to maintain and repair her building. 445 So. 2d at 155.
The sine qua non of article 670 and the Bushnell decision is an encroaching building, a feature absent from the Magner v. Deas case. Thus, how much support the plaintiffs garner from this argument is unclear and must await the court’s decision. The case currently is set for trial in September 2022.
The Lesson for Purchasers
The Magner v. Deas case illustrates one of the many pitfalls to be aware of when purchasing property in the French Quarter. Purchasing an estate with a building on it whose wall sits on the property line with the adjoining estate via a title that does not provide for a servitude over the adjoining estate for the repair and maintenance of the building could be a costly transaction. Neighbors do not always get along and may not be as cooperative and understanding as one might hope. Perhaps Robert Frost said it best when he penned, ”good fences make good neighbors.”
[1] The author represented the defendant in the early stages of the litigation but no longer represents the defendant.