§ 9:5633

Louisiana § 9:5633

• Jurisdiction: Louisiana
• Title 9: Civil Code-Ancillaries

Text

§5633. Blighted property; acquisitive prescription
A. Ownership of an immovable may be acquired by the prescription of three years without the need of just title or possession in good faith. The requirements for the acquisitive prescription of three years are as follows:
(1) The land and all improvements thereon shall be located in a municipality having a population of three hundred thousand or more, according to the latest federal decennial census, and shall have been declared or certified blighted after an administrative hearing, pursuant to R.S. 13:2575 or 2576.
(2) The following shall be filed in the conveyance records for the parish where the immovable property is situated:
(a) An affidavit by the possessor stating the name and address of the possessor, stating the intention of the possessor to take corporeal possession of the immovable property for the possessor's own account in accordance with this Section, stating that such corporeal possession shall commence no sooner than sixty calendar days from the date of filing of the affidavit and giving a short legal description of the immovable property intended to be possessed; and
(b) There shall be annexed to and filed with the affidavit described in Subparagraph (A)(2)(a) of this Section a certified copy of the judgment declaring or certifying the property as blighted and the following certificate or proof:
(i) In the event an appeal has not been timely filed in the district court appealing the judgment or declaration of blight, a certificate of the clerk of court of the district court showing that thirty days have elapsed since the date of the judgment or declaration of blight and certifying that an appeal has not been filed in the district court appealing the judgment or declaration of blight; or
(ii) In the event an appeal has been timely filed in the district court appealing the judgment or declaration of blight, a certificate of the clerk of court certifying that the district court has affirmed the judgment declaring or certifying the property as blighted or the case has been abandoned and showing that more than sixty days have elapsed from either:
(aa) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Code of Civil Procedure Articles 1974 and 1811, and certifying that such application was not filed within such delays as allowed by law, or
(bb) The date of the mailing of notice of the refusal of the district court to grant a timely application for a new trial or judgment notwithstanding the verdict as provided by Code of Civil Procedure Article 1914, in the event an application for a new trial or judgment notwithstanding the verdict was timely filed as provided by Code of Civil Procedure Articles 1974 and 1811; and further certifying that no order has been rendered or signed by such district court allowing an appeal from such judgment of the district court to the respective appellate court of this state.
(iii) If, within the time allowed by Code of Civil Procedure Article 2087 or 2123, an order is rendered or signed by such district court allowing an appeal from the judgment of the district court to the respective appellate court of this state, a certificate of the clerk of the court of appeal certifying either that the appeal has been abandoned, or that the judgment of the court of appeal affirming the district court has become final and definitive in accordance with Code of Civil Procedure Article 2166 may be filed in lieu of the certificate required by Item (A)(2)(b)(i) or (ii) of this Section.
(iv) In the event the Supreme Court of Louisiana grants an application for certiorari to review such judgment of the court of appeal, written proof that the Supreme Court of Louisiana has affirmed such judgment of the court of appeal and that a writ of certiorari to the United States Supreme Court has not been made within the time allowed for such application may be filed in lieu of the certificates required by Item (A)(2)(b)(i) or (ii) of this Section.
(v) In the event an application for certiorari to review such judgment of the Supreme Court of Louisiana is timely filed, proof that such application was denied may be filed in lieu of the certificates required by Item (A)(2)(b)(i) or (ii) of this Section.
(vi) In the event the United States Supreme Court grants an application for certiorari to review such judgment of the Supreme Court of Louisiana, written proof that the United States Supreme Court has affirmed such judgment of the Supreme Court of Louisiana may be filed in lieu of the certificates required by Item (A)(2)(b)(i) or (ii) of this Section.
(vii) In the event the clerk of the district court fails or refuses to issue any certificates required by this Section within ten days following a written request for same, the requesting party may cause the clerk of court to be cited summarily by a court of competent jurisdiction to show good cause why the certificate has not been issued. If the court shall deem that good cause has not been shown, the clerk of court shall pay all reasonable attorney fees and costs incurred by the party bringing such rule.
(c) An affidavit by the New Orleans Redevelopment Authority stating that all appeals and appeal delays have run, and that the judgment declaring or certifying the property as blighted is final, filed together with a copy of the judgment declaring or certifying the property as blighted prior to August 29, 2005, shall satisfy the requirements of Subparagraph (A)(2)(b) and Paragraph (A)(11) of this Section. However, any property acquired pursuant to this Subparagraph by the New Orleans Redevelopment Authority and which is still in its possession on or after January 1, 2010, shall again become subject to the provisions of Paragraph (A)(11) of this Section.
(3) Within one week after the judgment, certificate or proof and affidavit are filed as described in Paragraph (A)(2) of this Section, said judgment, certificate or proof and affidavit shall be sent certified mail, return receipt requested, to the address of the owner shown on the tax rolls of the assessor, to the addresses of owners of immovable property having common boundaries with the immovable shown on the tax rolls of the assessor and to all parties having an interest in the immovable, as shown by the mortgage and conveyance records, at the address of each party as may be reasonably ascertained.
(4) Within one week after the judgment, certificate or proof and affidavit are filed as described in Paragraph (A)(2) of this Section, a notice shall be affixed in a prominent location on the immovable, stating the name and address of the possessor, stating that the possessor intends to take corporeal possession of the immovable for the possessor's own account and stating the date that the notice is so affixed.
(5) An owner of immovable property having common boundaries with the immovable shall have a first right of possession to such immovable. In the event more than one owner of immovable property having common boundaries with the immovable files the judgment, certificate or proof and affidavit as described in Paragraph (A)(2) of this Section, the owner of property having common boundaries who first files the judgment, certificate or proof, and affidavit as described in Paragraph (A)(2) of this Section shall secure the first right to assert possession of the immovable. An owner of immovable property having common boundaries with the immovable may, within the earlier of thirty days of receipt or forty-five days of mailing of the notice required by Paragraph(A)(3) of this Section, file the judgment, certificate or proof and affidavit as described in Paragraph (A)(2) of this Section, fulfill all requirements of Paragraphs (A)(3) and (4) and notify the intended possessor of his own intent to possess the immovable in writing by certified mail, return receipt requested. The owner of immovable property having common boundaries with the immovable shall adhere to the time restraints of the provisions of this Section, and the original intended possessor's time limits shall be suspended during the time the owner of immovable property having common boundaries with the immovable is attempting to assert possession. If the owner of immovable property having common boundaries with the immovable does not comply with the provisions of this Section, then the original party who filed the judgment, certificate or proof and affidavit as described in Paragraph(A)(2) of this Section shall exclusively have thirty days from the failure of the owner of immovable property having common boundaries with the immovable to comply to reassert his intention to possess the immovable by complying with all provisions of this Section, except that notice to the owners of property having common boundaries with the immovable property shall not be again required. After this exclusive thirty-day period has elapsed, any interested party may avail themselves of the provisions of this Section.
(6) Within ninety calendar days after the date on which the affidavit described in Subparagraph (A)(2)(a) of this Section is filed in the conveyance records as required by Paragraph (A)(2) of this Section, the possessor shall request from the recorder of mortgages a mortgage certificate, setting forth the full legal description of the immovable property, to be run in the name of the owner of the immovable property for a period of time commencing with the date of the acquisition of the immovable property by the said owner and ending sixty days following the date of the filing of the affidavit described in Subparagraph (A)(2)(a) of this Section.
(7) The possessor shall take corporeal possession peaceably and no sooner than the date the mortgage certificate described in Paragraph (A)(6) of this Section is generated by the recorder of mortgages and no later than sixty calendar days following the date of such generation.
(8) The following shall be filed in the conveyance records for the parish where the immovable property is situated within ten days after the possessor has taken corporeal possession of the immovable property:
(a) An affidavit by the possessor stating the name and address of the possessor, stating that the possessor has taken corporeal possession of the immovable for the possessor's own account, stating the date that the possessor took corporeal possession, stating the acts taken by the possessor to effect corporeal possession, and giving a short legal description of the immovable; and
(b) There shall be annexed to and filed with the affidavit described in Subparagraph (A)(8)(a) of this Section the mortgage certificate of the recorder of mortgages described in Paragraph (A)(6) of this Section, showing that sixty days have elapsed from the date of the filing of the affidavit described in Subparagraph (A)(2)(a) of this Section and showing that no notice of lis pendens has been filed against the immovable property and that the immovable property has not been seized under a writ of fieri facias or seizure and sale.
(9) Within one week after the affidavit and certificate are filed as described in Paragraph (A)(8) of this Section, said affidavit and certificate shall be sent certified mail, return receipt requested, to the address of the owner shown on the tax rolls of the assessor and to all parties having an interest in the immovable, as shown by the mortgage and conveyance records, at the address of each party as may be reasonably ascertained.
(10) Within one week after the affidavit and certificate are filed as described in Paragraph (A)(8) of this Section, a notice shall be affixed in a prominent location on the immovable, stating the name and address of the possessor, stating that the possessor has taken corporeal possession of the immovable for the possessor's own account, and stating the date that the possessor took corporeal possession.
(11) All ad valorem taxes, interest, and penalties due and payable shall be paid in full.
(12) If there are any improvements on the immovable, they shall be demolished or certificates of use and occupancy shall be obtained within two hundred seventy calendar days after the date that corporeal possession was taken.
B. In the event a judgment is rendered finding that a violation of any public health, housing, fire code, environmental or historic district ordinance of the municipality where the property is situated has occurred with respect to the immovable after the date that the possessor took corporeal possession, or should any possessor seeking to acquire hereunder fail to satisfy any of the requisites for acquisitive prescription listed in Subsection A of this Section, then possession and the running of prescription and the effect of the affidavits hereunder shall cease, and all rights which may have accrued thereunder shall be null and void ab initio. The fact that there has been no judgment rendered finding that any such violation has occurred on the immovable after the date that the possessor took corporeal possession may be established by an affidavit of a hearing officer appointed pursuant to R.S. 13:2575 or 2576.
C. The possessor may not demolish any structure on the immovable unless the hearing officer appointed pursuant to R.S. 13:2575 or 2576 finds the structure to be a public nuisance and unless the possessor obtains all permits required by law. Any garage, shed, barn, house, building, or structure shall be deemed to be a public nuisance if:
(1) By reason of being dilapidated, decayed, unsafe or unsanitary, it is detrimental to health, morals, safety, public welfare, and the well-being of the community, endangers life or property or is conducive to ill health, delinquency, and crime.
(2) It is a fire hazard.
(3) By reason of the conditions which require its continued vacancy, it and its surrounding grounds are not reasonably or adequately maintained, thereby causing deterioration and creating a blighting influence or condition on nearby properties and thereby depreciating the value, use, and enjoyment to such an extent that is harmful to the public health, welfare, morals, safety, and the economic stability of the area, community, or neighborhood in which such a public nuisance is located.
D. If the possessor has met the requisites listed in Subsection A of this Section, the possessor shall not be liable to the owner of the immovable for any tortious act related to the possession of the possessor which may have occurred on or after the date that corporeal possession was taken, including but not limited to trespass and demolition of the improvements, and such possessor shall not be subject to criminal prosecution for trespass upon the immovable or for demolition of the improvements. However, nothing provided in this Subsection shall prevent the owner from instituting and prosecuting a real action against the possessor pursuant to Code of Civil Procedure Article 3651 et seq.
E.(1) In the event that the owner is successful in bringing a real action against the possessor pursuant to Code of Civil Procedure Article 3651 et seq., the owner shall reimburse the possessor for all monies advanced by the possessor for attorney fees and costs, tax statements or researches, mortgage or conveyance certificates, title abstracts, filing fees, postage, copies, printing, the payment or satisfaction of mortgages, judgments, liens, and other encumbrances, plus costs and expenses for cancellation thereof, and for all ad valorem taxes, interest, and penalties paid by the possessor on the immovable, the value of the improvements made or done on the immovable by the possessor after the date that corporeal possession was taken, and the cost or value of any repairs, rehabilitation, maintenance, removal, or demolition to the extent not otherwise included in the value of the improvements and for any other reasonable costs incurred or work done by the possessor in connection with the acquisitive prescription provided for in this Section.
(2) In addition to the foregoing reimbursements, all monies advanced by the possessor shall earn, and the possessor shall be entitled to receive, conventional interest at the highest rate allowed pursuant to Civil Code Article 2924(C).
(3) To prove the cost or value of repairs, rehabilitation, maintenance, removal, or demolition made or done on the immovable, the possessor shall provide written receipts for the payments of said costs from the persons who performed the work or from whom the materials were purchased or affidavits establishing the hourly rate generally charged for such work in the parish in which the immovable subject to possession pursuant to this Section is located and the number of hours spent on such work.
(4) In the event that the owner contests the validity of such documentation, appraisers shall be appointed and shall proceed in the manner set forth in R.S. 47:2223 to determine the cost or value of said repairs, rehabilitation, maintenance, removal, or demolition.
F. If the possessor has met the requirements set forth in Subsection A of this Section, all expenses and monies itemized in Subsection E of this Section advanced by the possessor, plus all accrued interest as provided by Subsection E of this Section, shall be secured by a first lien and privilege on the immovable property described in the affidavit filed under Subparagraph (A)(2)(a) of this Section, which lien shall be superior in rank to all prior and subsequent recorded mortgages, judgments, liens, privileges and security interests. Such lien shall be in favor of the possessor and, as such, it may be pledged or assigned to secure any loan or loans made to the possessor for the purpose of financing the acquisition of the immovable property by the acquisitive prescription provided for in this Section or for the rehabilitation, demolition or for the construction of improvements on or to the immovable property, or both.
G.(1) If the possessor or possessors of any immovable property possessed pursuant to this Section have met the requirements of Paragraphs (A)(1) through (A)(10) of this Section, the holder or holders of any mortgage, lien, privilege, judgment, or security interest encumbering the immovable property described in the affidavit provided for in Subparagraph (A)(2)(a) of this Section, may not enforce such mortgage, lien, privilege, judgment, or security interest by seizure and sale or other in rem action against such immovable property, and such mortgage, lien, privilege, judgment, or other security interest shall have no effect whatsoever against such immovable property, the possessor thereof under this Section, or any other third party while the possessor or possessors are in corporeal or civil possession of the immovable, and the effect of recordation of the document creating the security interest shall cease as to the immovable upon the possessor acquiring the property by the acquisitive prescription described in this Section. Notwithstanding the foregoing, if the possessor does not comply with the requisites of Paragraphs (A)(11) and (12) of this Section or if a judgment described in Subsection B of this Section is rendered, the enforcement of a security interest shall no longer be prohibited.
(2) Paragraph (G)(1) of this Section shall not apply to liens imposed by or in favor of the municipality or parish in which the immovable property is located.
(3) Upon presentation of evidence to the clerk of court or the recorder of mortgages attached to or made part of an affidavit of any interested party that a possessor under this Section has met all the requirements of this Section and has acquired immovable property pursuant to this Section, the clerk of court or the recorder of mortgages shall cancel and erase all mortgages, judgments, liens, privileges, and security interests, from the records of his office, except liens imposed by or in favor of the municipality or parish in which the immovable property is located.
H. The provisions governing acquisitive prescription of ten years and of thirty years apply to the prescription of three years to the extent that their application is consistent with the prescription of three years.
I. Notwithstanding the provisions of Subsection A of this Section, in the event that the possessor rehabilitates or constructs a residential or commercial structure in accordance with Paragraph (A)(12) of this Section, ownership of the immovable may be acquired by prescription without the need of just title or possession in good faith on the date that a certificate of use and occupancy shall be obtained by the possessor. For the purposes of this Subsection, "residential or commercial structure" shall not include garages, sheds, barns, or other outbuildings.
J. In the event that the possessor does not comply with the provisions of Subsection A of this Section or if a judgment described in Subsection B of this Section is rendered, any interested party may execute and file in the conveyance records an affidavit describing the instance or instances of the possessor's failure to comply with the provisions of Subsection A of this Section or may file in the mortgage records a certified copy of the notice of the judgment described in Subsection B of this Section. Said filed affidavit or filed certified notice of judgment shall be conclusive evidence of the failure of the possessor to comply with the requirements necessary to acquire the immovable by the prescription provided for in this Section and shall act to nullify the filed affidavit of intent to possess described in Paragraph (A)(2) of this Section and the filed affidavit of possession described in Paragraph (A)(8) of this Section as if the said affidavits were never filed, without any need to have said affidavits canceled or released of record.
K. The filing or depositing in the conveyance or mortgage records of any forged affidavit, notice of judgment, certificate or proof, or mortgage certificate described herein, wrongfully altered affidavit, notice of judgment, certificate or proof, or mortgage certificate described herein, or any affidavit, notice of judgment, certificate or proof, or mortgage certificate described herein containing a false statement or false representation of a material fact, shall be a felony pursuant to R.S. 14:133 and shall be actionable under Civil Code Article 2315. Notwithstanding the foregoing, a possessor may not file an action against a third person who has acquired an interest in an immovable by onerous title from a person who has acquired the immovable by the acquisitive prescription provided by this Section based upon an executed or filed false affidavit, notice of judgment, certificate or proof, or mortgage certificate described herein.
Acts 2001, No. 1226, §1; Acts 2003, No. 1188, §1, eff. July 3, 2003; Acts 2006, 1 st Ex. Sess., No. 30, §1; Acts 2011, 1 st Ex. Sess., No. 30, §1.