Servitudes are making their way lately into quite a few cases being decided by the appeals courts of Louisiana. I recently wrote an article, “Apparent Servitudes: When Purchasing Property, Take Note Of What You See,” about a case, Naramore v. Aikman, that was decided by the Louisiana Court of Appeal for the First Circuit. It demonstrated some established but little known principles of Louisiana law that every person dealing with real estate in Louisiana should be aware of.

Now, a case decided by the Louisiana Third Circuit Court of Appeals, Brunson v. Crown Brake, LLC, sets forth some important principles governing servitudes. 

Brunson v. Crown Brake, LLC Background

In Brunson v. Crown Brake, LLC, a Louisiana business called Crown Brake claimed that it was entitled to a fifty-foot-wide servitude over a neighbor’s adjacent property, running right through the $1,500,000 house being constructed on that property.

Both the homeowners and Crown Brake purchased their respective parcels in 2017. Crown Brake claimed that the servitude in question was established in an Act of Exchange that was executed between the parties’ predecessors in title and recorded in 2008, and was shown on the public records at the time of both parties’ purchases.

A Written Servitude Has To Be Unambiguous

First, the appellate court set up the ground rules that would govern the case. Servitudes are generally disfavored because they place limitations on a person’s right to use his or her property, and so they are “strictly construed.” Second, parties acquiring real estate are bound only to those matters disclosed on the public records, so the trial court could not consider documents that were not recorded in 2017 when the parties acquired their respective parcels.

If the Brunsons’ property were to be encumbered by a servitude in favor of Crown Brake’s property, that servitude had to be found within the four corners of the 2008 Act of Exchange. Crown Brake attempted to introduce evidence relating to the “true intent” of the parties to the 2008 Act of Exchange, but the court ruled that a written servitude had to be unambiguous, so no additional evidence could be allowed.

The court then went on to find that the 2008 Act of Exchange did not establish a servitude because it did not clearly and unambiguously encumber the Brunsons’ parcel with a servitude. The body of the Act of Exchange did not make any mention of a servitude.

Exhibit A to the Act of Exchange was the property description, and after describing the property, it contained language stating that “right of way and utility servitudes are hereby extended” in favor of the parcel that was ultimately acquired by Crown Brake, with the statement that “said servitudes are shown on plat of survey by Frank L. Willis, PE, PLS, dated November 18, 2008, attached hereto and made a part hereof.” However, the plat of survey dated November 18, 2008 was not attached to the Act of Exchange and was never otherwise recorded in the public records. A different survey, dated December 9, 2008, was attached to and recorded with the Act of Exchange – and it contained no mention or depiction of any servitudes.

Louisiana Third Circuit Court of Appeals Ruling

The court ruled that the language in the property description was ambiguous and did not clearly create a servitude, because it did not identify with any specificity of the property (called the “servient estate”) that is burdened by the servitude, whether in the body of the document or in any recorded survey.

Under these circumstances, the court ruled, there necessarily was some doubt as to whether the 2008 Act of Exchange created a servitude that burdened one parcel of land in favor of another, and under the law, all such doubts are to be resolved against the existence of the servitude, which must be clear and explicit.

Because the documents recorded in the public records at the time of the Brunsons’ purchase did not clearly create a servitude encumbering the Brunsons’ property, the Brunsons were allowed to finish construction of their home without a servitude running directly through the middle of it.

The Lessons for Would-be Purchasers

If you are hoping to enjoy the benefits of a written, recorded servitude, review it in light of the principles discussed above – there should be no ambiguities in the property descriptions or in the fact that one property is being burdened in favor of another. If you are in a pending transaction whereby you intend to take a servitude for your property’s benefit, pay close attention to the written document to make sure it complies with these requirements.

Other Articles on Servitudes

Servitudes Need Extra Care, but the Survey is Key

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, Residential Real Estate, Title Insurance, Title Insurance
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