Precarious Possession

• Author: John A. Lovett
• Position: De Van D. Daggett, Jr. Distinguished Professor, Loyola University New Orleans College of Law.
• Pages: 617-700

Precarious Possession John A. Lovett * TABLE OF CONTENTS Introduction .................................................................................. 618 I. Up from Rome .............................................................................. 625 A. Acquisitive Prescription in the Civil Law Tradition .............. 625 1. Roman Law and Pre-Codification French Law ............... 625 2. French Codification and Subsequent French Commentary Justifying Acquisitive Prescription............ 628 B. The Concept of Precarious Possession in Roman and French Law ..................................................................... 630 1. True Possession Equals Detention Supplemented by Animus ....................................................................... 631 2. Precarious Possession Cannot Produce Acquisitive Prescription .................................................. 632 3. Initial Presumption in Favor of Possession as Owner .............................................................................. 632 4. Limited Juridical Effect of Acts Governed by Article 2232 of Code Civil .............................................. 634 a. Pure Facultative Acts ................................................... 635 b. Acts of Simple Tolerance ............................................ 635 C. Louisiana Commentary After the 1982 Revision of the Civil Code .............................................................................. 636 D. The Virtues of Louisiana’s Two-Tier Model of Acquisitive Prescription ......................................................... 640 II. Three Paradigmatic Possession and Acquisitive Prescription Disputes: A Social and Relational Approach ............................... 646 A. Strangers ................................................................................ 648 1. Stranger–Claimant Possessed as Owner ......................... 649 2. Stranger–Claimant as Precarious Possessor .................... 654 B. Contractual and Legal Status Relationships .......................... 657 1. Contractual Relationships ............................................... 658 a. Lessees and Lessors .................................................. 658 b. Agents and Principals ............................................... 659 c. Servitude Holders and Servient Estate Owners, Usufructuaries and Naked Owners ........................... 659 d. Vendors and Vendees ............................................... 660 2. Co-Ownership Disputes: Context Matters ...................... 661 618 LOUISIANA LAW REVIEW [Vol. 77 a. Co-Owners Who Remain Precarious Possessors ...... 663 b. Co-Owners Who Terminate Precarious Possession .. 664 3. Other Family Matters: Sticky Precarious Possession ...... 669 4. Sui Generis Legal Status Relationships .......................... 671 C. Neighbors and Members of Close-Knit Communities........... 673 1. Neighbors as Precarious Possessors Through Acknowledgment or Agreement ..................................... 674 2. Neighbors as Precarious Possessors Through Inference .......................................................................... 675 3. Neighbors Who Possess as Owners ................................ 681 III. The Future of Precarious Possession ............................................ 686 A. New Jurisprudential Tools to Analyze Neighbor and Close-Knit Community Cases ............................................... 687 1. The Presumption of Sharing ............................................ 688 2. Indicia of Giving or Renunciation ................................... 691 B. Reconsidering Boudreaux ........................................................ 694 1. The Boudreaux Opinions ................................................ 694 2. Resolving Boudreaux with New Jurisprudential Tools ... 699 Conclusion .................................................................................... 700 INTRODUCTION The institution of acquisitive prescription has startling transformative power. 1 A person who commences possession of immovable property in Copyright 2017, by JOHN A. LOVETT. * De Van D. Daggett, Jr. Distinguished Professor, Loyola University New Orleans College of Law. This Article is dedicated to the memory of André van de Walt (1956-2016), the holder of the South African Research Chair in Property Law at Stellenbosch University, South Africa, who invited me to visit his research group and present an early draft of this Article in March 2016. His contribution to property law scholarship across the world is beyond measure. I also wish to thank Hanri Mostert, Cheryl Young, Cornelius van de Merwe, Jacques du Plessis, Hanoch Dagan, Joseph Singer, John Blevins, Nicholas Davrados, Melissa Lonegrass, and Sally Ann Richardson for their encouragements and valuable comments on earlier drafts of this Article. Finally, I gratefully acknowledge the outstanding research assistance of Aimee Chalin and Emily Breaux. 1. As French commentators G. Baudry-Lacantinerie and Albert Tissier once remarked, “Prescription is the transformation of a state of fact in a state of law.” G. BAUDRY-LACANTINERIE & ALBERT TISSIER, PRESCRIPTION: TRAITE THEORIQUE ET PRACTIQUE DE DROIT CIVIL, in 5 CIVIL LAW TRANSLATIONS ¶ 275, at 145 (La. St. L. Inst. trans. 1972) (4th ed. 1924). 2017] PRECARIOUS POSSESSION 619 good faith and with a just title can acquire ownership that is good against the world after just ten years of uninterrupted possession. 2 Even more remarkable is that a possessor who does not commence possession in good faith or who lacks a just title can still acquire ownership of an immovable after 30 years of uninterrupted possession. 3 Finally, a person who merely uses another person’s land in a limited manner can acquire a real right in the form of an apparent servitude through either ten or 30 years of quasi-possession. 4 According to several Louisiana jurists and commentators, the venerable institution of acquisitive prescription in Louisiana is now under threat. 5 The source of that threat is a recent decision of the Louisiana Supreme Court. In Boudreaux v. Cummings, 6 the plaintiff, John Boudreaux, and his ancestors-in-title had used a pathway across his neighbor’s property since 1948 to gain access to a public road and to transport farm equipment to and from the property. 7 In 2012, Paul Cummings, the new owner of the adjacent land, prevented Boudreaux from using the pathway. 8 Boudreaux sued, claiming that he and his ancestors-in-title had acquired a predial servitude across Cummings’s land by virtue of 30 years of uninterrupted quasi-possession. 9 Cummings defended the lawsuit by arguing that Boudreaux’s possession did not count for purposes of acquisitive prescription because it had always been “precarious,” that is, it had been exercised “with the permission of or on behalf of the owner.” 10 Although 2. LA. CIV. CODE arts. 3473–3476 (2016) (providing for ten-year acquisitive prescription of immovables for a possessor with just title and good faith; providing that possessor need only have good faith at commencement of possession). 3. Id. arts. 3486–3488. 4. Id. arts. 740, 742. 5. See Boudreaux v. Cummings, 167 So. 3d 559, 568 (La. 2015) (Knoll, J., dissenting) (warning that the majority decision in Boudreaux “severely jeopardizes the law on acquisitive prescription in this state”); A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 6.36, in LOUISIANA CIVIL LAW TREATISE (4th ed. 2013 & Supp. 2016) (reiterating Justice Knoll’s warning and advising that the majority holding in Boudreaux “should not be read broadly and should not be read to equate permission with a landowner’s awareness and failure to object to a disturbance or eviction”); Andrew M. Cox, Boudreaux v. Cummings: The Louisiana Supreme Court Presumes Away the Right to Acquire a Servitude of Passage, 90 TUL. L. REV. 973, 984 (2016) (suggesting that faulty reasoning in Boudreaux “looms dangerously over the right to prescribe a servitude of passage”). 6. 167 So. 3d 559 (La. 2015). 7. Id. at 560. 8. Id. 9. Id. 10. Id. at 561 (quoting LA. CIV. CODE art. 3437 (2011)). 620 LOUISIANA LAW REVIEW [Vol. 77 the trial court and a majority of the Louisiana Third Circuit Court of Appeal ruled in favor of Boudreaux, a narrow four-justice majority of the Louisiana Supreme Court disagreed and held that Boudreaux’s quasi-possession of the right of way was, in fact, precarious, and thus could not lead to acquisitive prescription. 11 More particularly, the majority opinion in Boudreaux appears to undermine the strong presumption in favor of possessors found in article 3427 of the Civil Code. 12 Relying on commentary interpreting an article from the 1870 Civil Code and its source article in the French Civil Code of 1804, 13 the majority of the Louisiana Supreme Court found that Boudreaux’s use of the pathway across his neighbor’s property occurred with the “implied or tacit permission” of his original neighbors as a “gesture of neighborly accommodation.” 14 Despite the strong presumption in favor of a possessor expressed in article 3427, the majority held that “under the limited circumstances where ‘indulgence’ and acts of ‘good neighborhood’ are present,” the possessor’s acts of possession are presumed to have occurred with the owner’s “tacit permission.” 15 Thus, as the Court put it, “Cummings’[s] awareness of Boudreaux’s use and his allowance thereof marks Boudreaux’s use as an authorized use that cannot be characterized as adverse under the circumstances.” 16 In apparent recognition of the difficult legal and factual issues the case raised, the majority took the unusual step of stating that its holding in Boudreaux was “strictly limited to the facts before us.” 17 Justice Jeannette Knoll authored a blistering dissent in Boudreaux. She contends that the majority decision “eviscerates the well-established burden-shifting structure laid out in our Civil Code” by allowing an owner to prevail in an acquisitive prescription case...