Unlike the law of the other forty-nine states which is derived from British common law, Louisiana law has its origins in the Napoleonic code. Louisiana laws recognizes servitudes, which are similar to easements. A servitude is defined as a charge or burden resting upon one estate for the benefit of another estate.
Under Louisiana law, there are two types of servitudes: 1) predial servitudes and 2) personal servitudes.
1. Apparent Servitudes
- Apparent servitudes are those that may be perceived by external signs, such
as a roadway or a window in a common wall.
2. Nonapparent Servitudes – Non apparent servitudes have no external signs. An example of a nonapparent servitude is a prohibition on building a structure that exceeds a certain height.
The existence of a predial estate is dependent upon the presence of a dominant estate and a servient estate which belong to different owners. A predial servitude may be affirmative or negative. An affirmative predial servitude gives the owner of the dominant estate the right to use the servient estate for a particular purpose. Examples of affirmative servitudes are rights of way, drainage, and support.
A negative predial servitude prohibits the owner of the servient estate from doing certain things on or with his property. An example of a negative servitude is the prohibition against using the property for commercial or industrial purposes.
A predial servitude may be extinguished by the permanent and total destruction of the dominant estate or of part of the servient estate which is burdened by the servitude. Moreover, a predial servitude is extinguished after ten years of nonuse.
2. Habitation; and
3. Right of Use.
A right of use is similar to an easement in gross and infers on the recipient the right to use the property for a specific purpose while denying him full enjoyment of the property. Examples of a right of use are the right of passage or the right of air and light.
Servitude disputes frequently arise between adjoining landowners over encroaching improvements. Servitude disputes may also involve misuse, extinguishment, and nonuse.
Because Louisiana servitude law is so unique, it's important to consult with an experienced real estate attorney before granting a servitude. If you are already involved in a servitude dispute, a real estate attorney will review your case and recommend the best course of action.