A recent case, Clement v. Menard, illustrates the pitfalls to be avoided so that a person enjoying a right-of-way (servitude) over adjoining property does not inadvertently lose those rights. It is an important lesson for developers, property owners and property managers.

Does This Servitude Still Exist?

In Louisiana, rights-of-way and easements that run with the land are generally known as “servitudes.” One piece of real estate enjoys rights that place a burden on an adjoining property.

If you were a judge, how would you vote on the following problem?

A recorded written servitude document creates a servitude over a piece of property for a 24-foot-wide canal that provides irrigation to an adjoining property. After a number of years, the property that uses the servitude changes its irrigation system from an open canal to an underground pipeline. The underground pipeline lies within the 24 feet described in the original servitude, but lies entirely underground. The open canal is filled in and covered.

Members of the Menard family buy the property that is burdened by the servitude, but the canal is no longer present on the property and there are no signs indicating the presence of the underground irrigation pipeline. When repairs are needed to the underground irrigation pipeline, the Menard family refuses to allow those repairs to be made and refuses to recognize the existence of the servitude. Does the servitude still exist, or has it been lost?

Clement v. Menard

If you think you might have difficulty deciding, you are not alone. Recently a five-judge panel of the Louisiana Third Circuit Court of Appeals decided this issue, by a 3-2 vote, in a case entitled Clement v. Menard. They decided that the servitude had been lost.

The three judges who made this decision couldn’t even agree on their reasons. They issued two different opinions explaining their rationale.

First and foremost, a servitude places a burden on real estate, and is therefore to be “narrowly construed.” That is a very important principle for property owners and managers to keep in mind. Courts will try to interpret servitudes in a way that limits the burdens placed upon another property.

The servitude document explicitly described a servitude for a canal that was 24 feet in width. When the Menard family bought the property, there was no canal on it. The court held that the very nature of the servitude had been changed from a canal to an underground pipeline, but the owner of the property burdened by the servitude had not agreed to such change. The original servitude was no longer used, and the new arrangement did not have both parties’ consent.

One last relevant factor was the fact that the purported servitude was no longer apparent to any observer. It did not show up on a survey and it could not be detected by mere observation. Thus, the Menard family, when purchasing the property, was entitled to believe that the canal had been filled in and that the servitude had been abandoned.

The two judges who dissented found these arguments to be narrow-minded. They reasoned that it was a servitude for irrigation, and it was still being used for that precise purpose. Thus, they said, the nature of the original servitude had not been changed, and the party who had been continuously using this servitude for irrigation was entitled to continue to do so.

Implicit in the dissenters’ reasoning was the idea that the Menard family could see the existence of the original servitude in the public records, and was not entitled to merely assume that it had been discontinued. Perhaps there was some duty on the part of the Menard family to inquire further with respect to the servitude that was shown on the public records.

An Important Lesson for Developers, Property Owners and Managers

Obviously it was a close call. The merits of the decision can be debated. However, one thing is very clear, and it is an important lesson for property owners and managers:

If you change the use of a written servitude to something that is not described in the written document, you do so at your peril. Before making the change, you should negotiate a written amendment with the owner of the property that is burdened by the servitude.

Otherwise, you run the risk that the servitude will be “narrowly construed” and will be limited only to the explicit uses described in the written document, and you could lose the servitude, as happened in this case.

Other Articles on Servitudes

Servitudes Need Extra Care, but the Survey is Key

Written Servitudes Must be Clear

Apparent Servitudes: When Purchasing Property, Take Note Of What You See

Expanding a Servitude to Create an Expeditious Way to Access Property for Hurricane Protection

How to Lose a Right-Of-Way (Servitude) or Avoid Doing So

Filed under: Commercial Real Estate, Development, Zoning and Land Use, Industry News, Property Administration, Purchase and Sale, Title Insurance, Title Law
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