Proctor's Landing Property Owners Ass'n v. Leopold

83 So. 3d 1199, 2011 La.App. 4 Cir. 0668, 2012 WL 264377, 2012 La. App. LEXIS 77
CourtLouisiana Court of Appeal
DecidedJanuary 30, 2012
DocketNo. 2011-CA-0668
StatusPublished
Cited by9 cases

This text of 83 So. 3d 1199 (Proctor's Landing Property Owners Ass'n v. Leopold) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Proctor's Landing Property Owners Ass'n v. Leopold, 83 So. 3d 1199, 2011 La.App. 4 Cir. 0668, 2012 WL 264377, 2012 La. App. LEXIS 77 (La. Ct. App. 2012).

Opinion

PAUL A. BONIN, Judge.

hThe Proctor’s Landing Property Owners’ Association sought injunctive relief against Leopold Holdings, LLC, the owner of a lot in the Proctor’s Landing subdivision in St. Bernard Parish. The Association contended that the Company was violating two of the subdivision’s building restrictions. The first violation involved the placing, maintaining, and improving of a small storage shed on the Company’s lot; the Association demanded its demolition or removal. The second violation involved the conducting and operating of a business on the Company’s property; the Association demanded that the business be discontinued and prohibited.

The Company argues that a storage shed is not covered by the building restrictions, yet agrees that if it is covered its storage shed constitutes a violation of the building standards and improvements restrictions. But, the Company then contends that because the storage shed was visible and obvious for more than two years before the Association filed its suit, the Association’s suit is prescribed. Its exception of prescription, however, was overruled by the trial court. One basis for the trial court’s decision was that the Company had acknowledged within two years of the first placement of the storage shed the Association’s right to enforce the building restriction and thereby interrupted the applicable two-year prescriptive | ¿period. After a trial on the merits, the trial court incorporated its findings on the prescriptive exception, granted injunctive relief on the shed claim, and ordered that the shed be removed or demolished within sixty days. The Company suspensively appealed from the part of the judgment ordering the shed’s removal. See La. C.C.P. ART. 3601 B.

The Company also contends that the activities it was conducting on or from its exclusively residential-use lot, primarily the leasing of four boat slips and the use of the storage shed’s facilities, did not constitute the carrying-on of a business, which is prohibited by the specified uses allowed for the lot. Finding that the Association did not carry its burden of proof that a business was being conducted on the Company’s lot, the trial court denied injunctive relief. The Association devolutively appealed from that part of the judgment. See First Bank and Trust v. Duwell, 11-0104, p. 3 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 18.

We agree with the trial court that the Association’s cause of action is not prescribed and affirm the mandatory injunction decreeing the demolition or removal of the storage shed within sixty days of the finality of this judgment. The trial court’s finding that the Company acknowledged [1202]*1202the right of the Association to enforce the building restriction within two years of the construction of the storage shed is neither clearly -wrong nor unreasonable.

The trial court was clearly wrong, however, when it found that the Association did not satisfy its burden to establish that the Company was conducting a business in violation of the subdivision’s use restrictions. Accordingly, we reverse that part of the judgment and remand to the trial court for it to issue an injunction discontinuing the Company’s current use of the lot for business purposes and prohibiting its future use for the carrying-on of a business.

|sWe explain our decision in greater detail below.

I

We begin our discussion with a consideration of the controlling legal principles applicable to building restrictions.

“Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements.” La. Civil Code ART. 775. “Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovable.” La. Civil Code Art. 776. Here, the Proctor’s Landing subdivision, which was established by juridical act, is located in the Shell Beach community in St. Bernard Parish and consists of twenty-six condominium units as well as eighty-two lots on which residential dwellings may be constructed. The Association declared its covenants, restrictions and servitudes and recorded them on August 2, 1995, and amended them thereafter.1 There is also no dispute that the general plan satisfies the legal requirement that it “must be feasible and capable of being preserved.” La. Civil Code Art. 775.

“Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable.” La. Civil Code Art. 783. “Apart from the rule of strict interpretation, documents establishing building restrictions are subject to the general rules of the Louisiana Civil Code of 1870 governing the interpretation of juridical acts.” La. Civil Code Art. 783 cmt. (c). (See also, generally, La. Civil Code Arts. 2045-2057.) “Words used are to be understood in the common and usual signification.” Id.

14As the general plan is the private law of the parties, when the words of the general plan “are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” See La. Civil Code Art. 2046. If the questioned provision regarding termination of the building restriction is unambiguous, then its interpretation is a question of law and not of fact. See New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1433, p. 9 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 401.

Building restrictions, once established, are terminated as provided by Title V of Book II of the Civil Code.2 See La. Civil Code Art. 776. Title V provides inter alia that building restrictions “may terminate or be terminated, as provided in the act that establishes them.” La. Civil Code Art. 780.

[1203]*1203More importantly for the purposes of this dispute, a building restriction may be terminated by the effects of liberative prescription. “No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation.” La. Civil Code ÁRT. 781. “After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.” Id.

Thus, unless a building restriction has terminated, it “may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure.”3 La. Civil Code Art. 779. That is, the plaintiff need not show that “irreparable injury, loss, or damage may otherwise | ¡¡result” in the absence of the injunctive relief. La. C.C.P. Art. 3601. Moreover, “[bjuilding restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan.” La. Civil Code Art. 778. Under this general plan, a lot owner may be required to remove or correct work which does not comply with approved plans and specifications.

The trial court also based its prescription ruling on the observation that the Leopold brothers informed the Association that they had every intention of building a camp on the property, and that these communications served to interrupt the running of prescription under La. Civil Code art. 781. Specifically, La. Civil Code art.

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83 So. 3d 1199, 2011 La.App. 4 Cir. 0668, 2012 WL 264377, 2012 La. App. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/proctors-landing-property-owners-assn-v-leopold-lactapp-2012.