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LESSON 5
OWNERSHIP OF THINGS-Corporeal and Incorporeal
The notary in our state exercises his or her powers in the area known as transactional
law. This is the basis for the directive that states notaries do not take sides. The notary
should be concerned with the transaction alone and not take sides with one party or
another.
The ownership of things in Louisiana is divided into three categories. Those are
1) common things
2) public things
3) private things
Those things can then be further described as corporeal and incorporeal, movable or
immovable.
A common thing includes the air and the high seas, and some lakes, rivers and
streams. They can be freely used by anyone.
A public thing is owned by the state or any part of the state’s subdivisions. For
example the seashore, the territorial sea, ditches used for drainage, parks and public
streets. They do not include any commercial property.
Private things are necessarily owned by private individuals apart from the state. The
individual owner may dispose of his or her private things of their own free will. It is
important to note that some private things become subject to public use. This occurs
where there is an easement involved or on the banks of navigable rivers.
Roads can be public or private. One must be aware that if something obstructs a road
that is subject to public use, then anyone may remove the obstruction.
After determining the type of ownership a thing has, you must then decide if the thing
is corporeal, incorporeal, movable or immovable.
Corporeals have body and can be felt or touched. Incorporeals do not have body, and
cannot be felt or touched, such as rights, servitudes, and obligations.
Movables can be things such as machinery, equipment or appliances and immovables
are things permanently attached to land such as buildings, some type of heavy equipment,
and the land itself.
If the law does not consider a thing immovable, then the thing is deemed movable.
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Ownership of these things gives the owner the exclusive authority over that thing.
That is, it gives the owner the right to possess and to dispose of the thing at will. It also
gives the owner direct and immediate rights over that possession.
With regard to Louisiana law regarding a Bond for Deed contract, the owner in the
deed has the right to file for Homestead Exemption even though the property is not
exclusively theirs under the contract. This area will be discussed in later lessons.
A couple of important things to note:
1) Only a natural person may own a thing.
2) Ownership of a thing and possession of a thing are two different scenarios.
You may possess a thing but not necessarily own it.
Our notarial law was derived from the Roman law. The Roman law divides ownership
into three categories. Those are:
1) Usus-the right to use and keep the fruits or income of a property
2) Fructus-The fruit or income from a property
3) Abusus-The right to use, consume or dispose of a property.
Also called naked ownership
Note: Ownership can also be subject to a condition such as a sale with a redemption right
in favor of another person. And if more than one person owns a thing, then the
ownership is called “owned in indivision.” Each person has an undivided interest or
share in the ownership of the thing.
ACCESSION
Other than purchasing a thing outright, a land owner can obtain land or rights in land
due to a process called accession. Accession is an increase or addition to the value of a
property by means of improvements or natural growth. This includes above and below
the surface of the land.
There are two associated terms to accession that should be noted. Those are alluvion
and dereliction. These are natural processes that occur along river banks and streams and
can change the ownership of certain parts of land along those banks.
To fully grasp the meaning of accession we must understand the ownership categories.
First there is fructus, or fruits which is either civil or natural. Natural is self explanatory
and civil can include such items as revenues or income from rentals and trusts. If the
owner of the fructus is subject to the rights of another, it is referred to as a usufruct. A
well known example of this is when a person dies and leaves behind a spouse and
children. The spouse, though the children inherit part of the decedent’s property,
acquires usufruct over the property the children are now naked owners of the property
until the surviving spouse dies or remarries
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Accession then is affected by ownership rights as well as the nature of the owned
thing; whether the accession occurs with reference to immovables or movables and if
those things are corporeal or incorporeal.
Placing things on another person’s property or land such as timber, crops or buildings
would become the property of the land owner in the absence of a written contract that
states otherwise. It would be wise to record such a contract in the local parish court
records by way of a written act and filed with the registry in the conveyance records. If
the things placed on another’s property are done without the owner’s permission, then
accession cannot be defeated and the property is considered to belong to owner of the
land. This situation relates to accession and immovables.
If a corporeal movable is incorporated into an immovable, it is called a component
part. These component parts usually belong to the owner of the immovable. If the
component part is made a part of the immovable with the permission of the owner, and is
then removed, then the original immovable must be returned to its former condition.
Just as accession affects immovables, it also affects movables. Movables are further
divided into accessory and principal things. Much like it sounds, the accessory movable
thing serves the use, ornament or complement of the principal movable thing. Such as a
running board placed on a truck or van. Something that did not come with the original
movable but instead added as an accessory. A car key is another accessory of the
principal thing, i.e. the car. The movable that is most valuable would be considered the
principal movable and anything less would be the accessory. Accessory things can be
incorporated into the principal thing so that the owner acquires ownership of both (the
accession of the movable). This holds true whether the accessory is physically attached or
attached only thru its function (ex. a lock and key).
CHANGING THE NATURE OF OWNERSHIP
Ownership can be transferred to another through succession, by operation of law, or
through obligations and contracts. The rights of a person holding possession of a thing
are subordinate to the rights of the true owner of that thing. If the possessor is presumed
to be the owner, and the old adage “possession is 9/10ths of the law” comes into play.
Of course this does not apply if the possessor obtains that thing or movable by way of
some illegal theft or loss. The person claiming to own a thing must prove that they
owned it in the first place.
Sometimes a thing can become the property of another simply by the passing of time.
In Louisiana this is called acquisitive prescription. If the thing is lost, the acquisitive
prescription period ends unless the thing is returned or the person recovers possession of
the thing within one year of the loss.
In Louisiana, acquisitive prescription of immovable property can be done by the
passing of either 10 or 30 years depending on the nature of the acquisition. Ownership
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rights to real property transfer to the current owner after 10 years have passed. The rights
most often referred to in this situation are mineral rights. There are many considerations
to be taken with regard to the transfer of ownership over such a short time. Later
discussions will cover this topic. The 30 year rule of acquiring ownership applies if the
possessor believed he actually owned the property and can prove continuous possession
of the property. The possessor does not have to have just title to the property for the
ownership rights in the real property to transfer.
Acquisitive prescription also applies to movables in the same manner and for the same
time periods. It is important to note that the process of acquisitive prescription does not
apply to public and common things.
INDIVISION, WHAT DOES THIS MEAN?
If two or more people own a thing, it is considered ownership in indivision. If there is
no juridical act specifying otherwise, then the shares of all co-owners are presumed
equal. All partners or co-owners have equal ownership rights, usage rights and
disposition rights. None can stop the others from exercising any of those rights. Any
activity that affects the other co-owners must be done with their mutual consent. Should
indecision or friction arise between owners, any may file for a partition judgment to
remedy the situation through sale of the property and the division of the proceeds after
expenses to the owners. A partition can be prevented for up to and no longer than 15
years if agreed upon in writing by all owners on the day the property is acquired. There
are few exceptions to this time period. One particular exception is with regard to a
nuclear generating plant.
If the owners choose to go to court to allow a judge to make the decision to divide the
property, then the judge can do so through an in kind partition or by licitation(private
sale). The first meaning the property can be divided equally amongst the owners. The
second meaning the property must be sold and the proceeds would be divided equally
between the owners. A term that applies to this situation is called lesion, where each coowner must receive at least ¼ of the value of his share of the property or that co-owner
has the right to call for a rescission of the sale.
VOCABULARY
Ownership - the right that confers on a person direct, immediate, and exclusive authority
over a thing
Corporeal -things that have a body that can be touched or felt
Incorporeal - things that do not have a body and cannot be touched or felt
Seashore - the space of land over which the waters of the sea spread in the highest tide
during the winter season
Naked ownership - bundle of rights formerly called abusus; ownership is burdened by a
usufruct
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Resolutory condition -condition of an obligation providing that upon the occurrence of a
particular uncertain event, the obligation will come to an end. An example is a sale with
the right of redemption
Possessor: -owner of the thing he possesses until the right of the true owner is established
Quasi possession: -exercising a real right, such as a servitude
Dereliction -land formed by water receding imperceptibly from the bank of a river or
stream; owner of land on the edge of the bank left dry owns the dereliction
Alluvion -accretion formed successively and imperceptibly on the bank of a river or
stream, navigable or not
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