By David Martinez

In this article Senior Associate David A. Martinez clarifies a recent case, Boudreaux v. Cummings, which may signal a meaningful shift and restriction on the ability of an owner to acquire a servitude right to the use of a driveway or alley of another property owner to access their own property.

The Informal Use of Driveways and Alleys to Access a Property

In real estate transactions, one encounters from time to time situations where the use of an apparent driveway or alley is a useful, or even necessary, component of the use of the parcel of property. Usually, the use of such driveways or alleys is frequently not established by any conventional, recorded act between landowners, but rather has just been used that way for many years.

Since such rights of use have not been formally granted by the owner of the land, the Louisiana Civil Code allows a party to acquire such rights by virtue of the exercise of same for a long period of time. Specifically, Louisiana Civil Code article 742 provides that an apparent servitude can be acquired by uninterrupted possession for a period of thirty years, without the need of having title to such rights or even good faith.

Boudreaux v. Cummings – A Meaningful Shift in Servitude Rights

It is this notion that provided the critical consideration for the Louisiana Supreme Court in Boudreaux v. Cummings, La. S.Ct. 2014-C-1499. What resulted from the Court’s decision in Boudreaux may signal a meaningful shift and restriction on the ability of a party to acquire a servitude right by acquisitive prescription under article 742.

Boudreaux v. Cummings – The Background

In Boudreaux, the plaintiff, John Boudreaux, filed suit against the defendant, Paul Cummings, seeking to have the Court recognize that Boudreaux and/or his ancestors-in-title had acquired a servitude of passage through the property owned by Cummings by virtue of acquisitive prescription pursuant to Louisiana Civil Code article 742.

In short, Boudreaux argued that both he and his ancestors-in-title had utilized a gate and a portion of Cummings property for the purposes of transporting farm equipment and to gain convenient access to an adjacent road since at least 1948, meaning that Boudreaux and his ancestors-in-title had exercised these rights for a period in excess of some sixty years until 2012 when Cummings locked the gate used by Boudreaux and prevented access to the road. Boudreaux argued to the Court that Cummings, and his ancestors-in-title, were well aware of the exercise of this right of way or right of access to the road, and that since these rights had been exercised since 1948 that Boudreaux had acquired a servitude by acquisitive prescription under article 742.

Cummings acknowledged that he and/or his ancestors-in-title were indeed aware of Boudreaux’s use of the purported “right of way,” but that he merely acquiesced in this use and tolerated it in an effort to be a good neighbor to Boudreaux. As such, Cummings argued that Boudreaux in essence had his permission to utilize the access way and thus was a “precarious possessor” under Louisiana law; meaning, that Boudreaux was possessing the access way on behalf of Cummings and could not therefore acquire any rights in his behalf pursuant to Civil Code article 742.

Boudreaux v. Cummings – The Ruling

In analyzing the historic application of the Civil Code articles on precarious possession and the acquisition of servitudes by acquisitive prescription, the Louisiana Supreme Court in Boudreaux concluded that support existed in Louisiana law for implied or tacit permission forming the basis of precarious possession. The Court went further to state that such tacit permission can be presumed under the limited circumstances where indulgence and acts of good neighborhood are present, and that Cummings’ neighborly act of tolerance could not be, and according to the Court was not, the foundation for adverse possession needed for the purpose of acquisitive prescription.

In short, the Court held that Boudreaux had not acquired any legal rights to the right of passage even though he and his family had been exercising those rights for some sixty years. The Court further punctuated its decision by holding that “…evidence beyond Boudreaux’s intent is required to terminate his precariousness. Boudreaux must have given actual notice [emphasis added] of his intent sufficient to alert the landowner that his property was in jeopardy.”

The Ruling Raises a Question for Landowners Seeking Servitude Rights

Obviously, such a pointed statement raises the following question: to what ends must a party go, given that he or she has no right from a landowner, to establish that possession of an access right is being made in his or her own behalf for purposes of acquisitive prescription under Louisiana Civil Code article 742?

The Court’s holding in Boudreaux leaves this question largely unanswered. It would seem that short of sending unambiguous, explicit written correspondence to the owner of land reciting that one intends to exercise rights adverse to the landowner over his or her land, the Boudreaux court may have severely limited the application of article 742.

The Upshot for Property Owners

The Court’s holding in Boudreaux appears to have a significant consequence for the development of property, especially commercial property, in Louisiana where access or other servitude rights have been historically exercised for long periods of time, but for which no written document exists granting such right. In essence, such properties may be subject under the rationale of the Boudreaux decision to having such rights stripped away after decades of use.

Moreover, the Court’s holding in Boudreaux may have the effect of rendering unavailable title insurance to insure the existence of such rights. As a result, developments where these rights exist would seem to require a much higher level of scrutiny and consideration for the existence of specific grants of these rights prior to the property being purchased or developed.

Please contact David Martinez if you have any questions about how this ruling may affect your business.

Filed under: Commercial Real Estate, Development, Zoning and Land Use, Industry News, Title Law
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