Property: Building Restrictions
About this set
Created by:
hunterc4 on June 21, 2011
Subjects:
building restrictions, predial servitudes, easements, louisiana law, law
Description:
Bar review on building restrictions in Louisiana property law.
Classes:
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16 terms
Terms | Definitions |
|---|---|
 Definition of a building restriction | Charge imposed by the owner of an immoveable pursuant to a GENERAL PLAN that governs building standards, specified uses, and improvements. |
| General plan requirements | 1. Feasible and 2. Capable of being preserved. |
| If there is no general plan, what legal device may the charge fall under? | A predial servitude. |
| What law supplements building restrictions? | Predial servitudes, to the extent they do not conflict. |
| What can a building restriction do that a predial servitude cannot? | Force an affirmative duty on the servient estates, e.g., force the estates to pay a neighborhood maintenance fee. |
| What limit is placed on building restrictions' servient estate duties? | Cannot force the servient estate to pay a fee for encumbrance or alienation. |
| How is a building restriction established? | Juridical act executed by owner of immoveable, or by all owners of the affected immoveables. NOTE: to be effective a/g third parties, must be recorded. |
| Four ways a building restriction can be extinguished: | 1. Provision establishing method in the act 2. Vote if there is no provision in the act 3. Liberative Prescription 4. Abandonment |
| How can a building restriction be voluntarily terminated or amended? | If places no greater burden on owners: 1. By provision in the act, or 2. If no provision, by vote of (a) majority of owners if restrictions in place for 15 years or more, or (b) 2/3rds owners if restriction in place for more than 10 years. If places greater burden: court said unanimity required, but legislature overturned saying: (1) the act creating the restriction guides, and (2) new law is retroactive. |
| Prescription for action for violation of restriction: | Two (2) years for noticeable violation. |
| How can a building restriction be abandoned? | A building restriction can be abandoned, as to specific provision or whole plan, by: 1. The developer never enforcing the plan, or 2. Non-compliance by enough lots that is allowed to remain for >2 years (i.e. action a/g enough owners prescribe, then at some point the restriction falls as to all). |
| Remedies available for building restriction violations: (2) | 1. Injunction without normal limitations; and 2. Damages. |
| Who has standing to sue for a building restriction violation? | All land owners subject to the restriction, and the homeowner's association. |
| What law governs building restrictions on planned residential communities? (has not been expressly tested) | Louisiana Homeowners Association Act (LHAA). |
| Three requirements for LHAA to apply: | 1. Real estate development 2. Used for residential purposes 3. Owners of separate lots are mandatory members of ass'n by virtue of their membership |
| Effect of LHAA being applicable: | 1. It is easier to create building restrictions: 2/3 consent of owners, and 2. It is easier to lessen building restrictions: majority consent of owners. |
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