Senior Associate David A. Martinez clarifies a recent case, Melkys Hernandez Santos and Arturo Santos v. Barataria Park, LLC and the Parish of Jefferson, which highlights why the creation of servitudes on plans of resubdivision may be fraught with unintended consequences down the road for landowners and developers if the parties involved are not very careful about fully setting forth the intention behind the creation of the servitude. The case is a reminder that in real estate, as in other facets of contract and business, the parties should always strive to mean what they say and say what they say.
Documenting the Intent of the Parties
Part of the challenge for attorneys and title companies when drafting documents for clients is precisely and adequately documenting the intent of the parties for any particular agreement. In a somewhat recent, but apparently overlooked, case the Louisiana Fifth Circuit Court of Appeal has appeared to provide a sobering reminder that meaningful consequences can arise for the failure to engage in specificity of the parties intent, especially as it relates to the establishment of access servitudes.
Melkys Hernandez Santos and Arturo Santos v. Barataria Park, LLC and the Parish of Jefferson
In Melkys Hernandez Santos and Arturo Santos v. Barataria Park, LLC and the Parish of Jefferson, 13 So. 3d 200, La. App. Fifth Cir. (2009), the Louisiana Fifth Circuit Court of Appeal was faced with the question of whether the designation on a plan of subdivision of a 50-foot wide access and utility servitude burdening one parcel and in favor of the other parcel, and not the public in general, accomplished a dedication of such servitude to public use. The property involved in this case was originally Lot G-302, Ames Farms Subdivision, Parish of Jefferson, State of Louisiana. By resubdivision plan dated January 11, 2001, the then owner of Lot G-302 resubdivided the lot into two parcels, Lot G-302A and Lot G-302B. New Lot G-302A was situated in front of Lot G-302B, effectively giving Lot G-302B no direct access to Barataria Boulevard. As a result, a notation was made on the subdivision plan along the south side of Lot G-302A delineating a fifty-foot wide servitude for access stating “50‘ access & utility servitude for Lot G-302B.”
Nowhere on the subdivision plan is it stated that this 50-foot access and utility servitude was intended by the then owner of the property to be dedicated to the public, or subject to general public use. Likewise, nothing is contained in the Jefferson Parish ordinance approving the plan of subdivision acknowledging the dedication of such servitude to public use.
The Next Chapter
Subsequent to the aforementioned subdivision, Lot G-302B was sold and eventually came to be owned by the defendant, Barataria Park, LLC. Barataria Park, LLC then acquired another parcel, Lot G-301, located to the north of Lot G-302B, and combined a portion of this additional lot with Lot G-302B to develop same into a residential subdivision called Barataria Park Subdivision. In the meantime, Lot G-302A was sold, eventually coming to be owned by Melkys Hernandez Santos and Arturo Santos.
On October 21, 2007, Barataria Park, LLC executed an instrument dedicating it’s interest in the 50-foot wide servitude to the Parish of Jefferson for the maintenance of a public right-of-way from the residential subdivision being constructed on Lot G-302B and the portion of Lot G-301 to Barataria Boulevard. It was upon the construction of such roadway that Melkys Hernandez Santos and Arturo Santos filed suit to stop the use of the roadway as a public street and have the court rule on whether the original 50-foot wide grant was merely a private servitude or a public one.
Public or Private? The Court’s Decision
While various arguments were made by Santos arguing for the termination of the access servitude, the main argument which they posed to the Fifth Circuit was that Barataria Park, LLC’s, and a result of the 2007 dedication the Parish of Jefferson’s, use of the servitude area as a public street was an impermissible expansion of the servitude from private use to public use. The Fifth Circuit rejected the Santos arguments by upholding the trial court’s decision in favor of Barataria Park, LLC, holding that the notation on the 2001 subdivision plan accomplished a statutory dedication of the access servitude to the public, despite no such language being included either in the ordinance approving the resubdivision or on the subdivision plan itself.
The Upshot for Landowners and Developers
In essence, the Fifth Circuit in Santos held that the original owner of Lot G-302 needed to place additional language on the 2001 plan of resubdivision expressly indicating that the 50-foot access and utility servitude was not intended as a dedication to public use. It is rare to find such limiting language placed on a plan of resubdivision, especially where the designation of the servitude clearly indicates that it is in favor of another lot.
Accordingly, the Santos case appears to issue an important directive to individual landowners and developers alike that the creation of servitudes on plans of resubdivision may be fraught with unintended consequences down the road if the parties involved are not very careful about fully setting forth the intention behind the creation of the servitude.
In particular, developers should consider the surrounding developments, their current state of use, and any vacant tracts of land which, if afforded a new access route (or even drainage for that matter) through the developer’s land, could change that use (for example, low intensity commercial to high intensity commercial) so as to adversely impact the development in ways that might not at that time be anticipated (e.g. increased traffic flow, drainage capacities and requirements). To protect against such an occurrence, it should be made clear in any grants of servitudes whether by separate act or on a resubdivision plans whether the rights conveyed should insure to only the developers land, only adjacent land, or to the public at large.
An Additional Thought
Of additional note in the Santos decision is the fact that the Fifth Circuit wholly avoided addressing the issue of expansion of a private servitude to public use in holding that the 2001 plan of subdivision accomplished a statutory dedication. An interesting question arises as a result in that had Barataria Park, LLC and the Parish of Jefferson considered the 2001 plan of subdivision as having statutorily dedicated the access servitude, then the 2007 act of dedication by Barataria Park, LLC was wholly unnecessary. Clearly, the parties felt that they were accomplishing, and perhaps needed to accomplish, the establishment of the servitude in favor of the public by executing that act.
The Santos decision is a reminder that in real estate, as in other facets of contract and business, the parties should always strive to mean what they say and say what they mean.