Of Immovables, Component Parts, Societal Expectations, and the Forehead of Zeus

• Author: A.N. Yiannopoulos
• Position: Eason Weinmann Professor of Law, Tulane University
• Pages: 1379-1399

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According to Greek mythology, the Goddess Athena was born fully grown and armed when Hepheastus hit with a hatchet the top of the head of Zeus (rather than his forehead). See Pindar, The Odes of Pindar 75 (Sir John Sandys, trans., Putnam's Sons 2d ed. 1919) (1915) ("[B]y the cunning art of Hephaestus, at the stroke of the brazen hatchet, Athene leapt from the crest of her father's head, and cried aloud with a mighty shout, while Heaven and Mother Earth trembled before her."). For the mythology of "Societal Expectations" and birth from the forehead of mere mortals, see infra notes 127- 138 and accompanying text.

This essay is dedicated with warm affection and admiration to Dean Symeon Symeonides of Willamette University Law School, Professor Emeritus of Louisiana State University Law School. He is a man of many talents and accomplishments (distinguished jurist, acclaimed author in diverse fields of law, draftsman of the first codification of conflicts of law in North America, beloved teacher, and efficient administrator). His publications in the field of Civil Law Property are monuments of the Louisiana civilian tradition and authoritative guides for the proper interpretation and application of the provisions of the Louisiana Civil Code. (See expresion in Pdf File)

Eason Weinmann Professor of Law, Tulane University; Professor Emeritus, Louisiana State University, Paul M. Hebert Law Center. Special thanks are due to Ms. Amy Allums, who did the spade work for and editing of this essay. Her critical comments provided the needed testing of ideas before publication.

I Introduction

Things are the objects of property law.¹ However, the word "things" has not been defined by legislation,² and the elaboration on the notion of things has been a task undertaken by jurisprudence and doctrine. In general, a thing may be an object consisting of one substance, such as a bar of gold, or of a mixture of substances, such as a chemical compound or an organic product. Things of this kind are termed "single." However, a thing may also be an object consisting of an assembly of individual things, termed "component parts," that have been united to form a whole, such as a computer or an automobile. Things of this kind are termed "composite."

In all legal systems, a thing may lose its identity and become a component part of another thing. ³ For example, certain movables may be merged into or become component parts of an immovable. When this happens, the component parts of the immovable cease to be distinct things; they become parts of a composite thing. This carries significant legal consequences in various fields of law, including seizure,⁴ security rights in Page 1380 movables,⁵ real actions,⁶ successions,⁷ community property,⁸ lesion,⁹ leases,¹⁰insurance,¹¹ venue,¹² expropriation,¹³ and actions for damages.¹⁴ The question of whether a thing is a component part of an immovable or a distinct movable may, therefore, arise in a variety of cases and contexts. This question may be resolved by governing provisions of law, unilateral declarations,¹⁵ and contractual agreements. ¹⁶ Detailed provisions of the Louisiana Civil Code deal with the definition¹⁷ and ownership of component parts¹⁸as well as the effect of the classification of a thing as a component part of another thing. ¹⁹ Article 469 of the Civil Code declares generally that "[t]he transfer or encumbrance of an immovable includes its component parts. "²⁰ This provision is permissive (suppletive),²¹ namely, it is applicable in the absence of other party agreement

Unfortunately, parties do not always take care to determine by agreement the status of the things that are attached to a building and frequently face the need for recourse to justice. Courts are then called upon to interpret contracts in the light of the governing legislation, guided by jurisprudence and doctrine. Attempts are made to determine party intent in the light of obscure language but, almost unavoidably, Page 1381 the question of whether a particular thing is a component part of a building is determined in light of the provisions of the Civil Code rather than the party agreement.

After the 1978 Revision, Louisiana courts interpreting the provisions of the Civil Code governing component parts of buildings have not encountered serious conceptual difficulties and have generally reached plausible results. However, a decision of the United States Court of Appeals for the Fifth Circuit has contradicted established. precepts, deviated from well settled jurisprudence, and has given rise to uncertainty.²² The following discussion is an effort to reexamine the Louisiana law governing the classification of a thing as a component part of a building in the absence of contractual provisions determining that matter and to restore confidence.

II The Law That Is

Book II, Title 1, of the Louisiana Civil Code of 1870. "Of Things," was revised and reenacted in 1978. ²³ A movable may become a component part of an immovable and, therefore, be subject to the laws governing immovable property by application of Articles 465, 466, and 467 Article 465 contemplates things that are fully incorporated into a tract of land, a building, or other construction so as to become an integral part of it, such as building materials. ²⁴ Article 466 governs things that, though not incorporated into a building or other construction, become component parts by virtue of their permanent attachment to the building or other construction ²⁵ Article 467 governs things that may become component parts of an immovable by a recorded declaration of the owner.²⁶ Articles 465 and 467 have not given rise to difficult questions of interpretation and will not be discussed here. Instead, attention will be focused on Article 466, the interpretation and application of which has spawned a gloss of jurisprudence and a body of legal literature.²⁷ Article 466 declares:

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Things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations, are its component parts. Things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable to which they are attached.²⁸

III The Law That Was

The 1978 Revision of the laws governing movables and immovables was not made on a clean slate, and much of the pre-existing law was preserved in a new form. Articles 467-469 of the Louisiana Civil Code of 1870 governed the classification of things that had been placed upon or attached to an immovable and, indirectly, the status of those things as component parts of tracts of lands and buildings. These articles were studied thoroughly and then revised. For a better understanding of the scope and effect of the Revision, pertinent 1870 texts are reproduced below.

Article 467. Wire screens, water pipes, sewerage pipes, heating pipes, radiators, electric wires, electric and gas lighting fixtures, bathtubs, lavatories, closets, gasplants, meters and electric light plants, heating plants and furnaces, when actually connected with or attached to the building by the owner for the use or convenience of the building are immovable by their nature.

Article 468 [last paragraph]. All such movables as the owner has attached permanently to the tenement or to the building, are likewise immovables by destination.

Article 469. The owner is supposed to have attached to the tenement or to the building forever such movables as are affixed to the same with plaster or mortar, or such as can not be taken off without being broken or injured, or without breaking or injuring the part of the building to which they are attached.

A Interpretation And Application Of Article 467: Things "Connected With Or Attached To A Building"

Originally, Article 467 of the Louisiana Civil Code of 1870 provided that "the pipes made use of for the purpose of bringing water to a house or other estate, are immovable, and are part of the tenement to which they are attached." To resolve a controversy as to whether that article could be applied by analogy to non-enumerated things, an amendment was passed by the Louisiana Legislature in 1912 that produced the lengthy list.²⁹ Subsequently, it was correctly held that the enumeration was Page 1383 indicative rather than exclusive.³⁰ Accordingly, Louisiana courts classified as parts of a building a steam heating system,³¹ a hot water heater,³² a safe,³³ doors,³⁴ and a butane gas system.³⁵

Under Article 467, the test for the classification of a thing as a part of a building was connection with or attachment to the building by the owner for the use or convenience of the building. This test of use or convenience was sufficiently broad to include almost anything imaginable and in part overlapped with the last paragraph of Article 468. However, under Article 467, the enumerated things were immovables if they were merely "connected with or attached" to the building; permanent attachment was not a requisite.³⁶ In contrast, according to Article 468, permanent attachment was required for the classification of a thing as a part of an immovable. Article 469 established a presumption of permanent attachment when things were attached with plaster or mortar or when they could not be separated from the immovable without injury.

In Lafleur v Foret,³⁷ a landmark decision, the court faced, inter alia, the question of...