Property: Building Restrictions
|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
|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|
|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.