Daily Development for
Wednesday, July 31, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; CREATION; PRESCRIPTION; LIGHT OR VIEW: Servitude of light or view in a common wall can be acquired by adverse possession in Louisiana. Palomeque v. Prudhomme, 664 So.2d 88 (La. 1995). (dicta). The case involved a centuries old structure in the French Quarter. One half had been remodeled in the 70's as a condominium, and in connection with the remodelling, windows were installed in a second floor exterior wall, serving the condominium unit now owned by the petitioner.

The other half of the building had been two stories originally, but had been reduced to a single story many years before. Thus the new windows provided light and air to the condominium unit. But they were installed in what was in effect a common wall between the two halves of the building.

The condominium owner was unfortunate enough to have the other half of the building acquired by an 800 pound gorilla - the K-Paul's restaurant business, a New Orleans institution. K-Paul's proposed to build a second story back onto its side of the structure, thus bricking over the windows in plaintiff's unit. New Orleans city planners thought this was a great idea, and issued all the necessary permits, leaving the condo owner with only a civil law claim that he had a prescriptive predial easement for light and air, barring blockage by K-Paul.

Held: An easement for light and view through a common wall may exist in Louisiana as a "predial servitude," and may be acquired by prescription. Under La. Code Sec. 703, the right to cut a window for light in a common wall includes the right to be free of obstructions to the light by the adjacent owner. Note that the easement here was not created by grant and it is impossible to tell if the original owner had intended it, since the history of this common wall was not known and the court assumes that the windows to the condo unit were not in the wall originally.

The court acknowledged that a right by "acquisition prescription" cannot be obtained by useage that has no "exterior sign of its existence." But it pointed out that an owner of a common wall has no right to make any openings in the wall without the consent of his neighbor, and that consequently the construction of the windows originally were an exterior sign that the condominium builder claimed an easement right to maintain the windows. Again the Louisiana Civil Code expressly recognizes the existence of a window in a common wall as an "exterior sign" of a light easement through that wall. (La. Code Sec. 707)

Nevertheless, the court concluded that the condo owner's right would have to satisfy the 30 year statute of limitations for claims as to which there is no "just title." The "just title" requirement in Louisiana law appears to be similar to the "good faith color of title" requirement appearing in some common law adverse possession statutes.

The condo owner argued that the condominium documents themselves vested him with "just title" because they conveyed to him "all the buildings, and improvements thereon, and all the righhts, ways, privileges, servitudes and appurtenances thereunto belonging or in anywise appertaining, situated on [the property consisting of the apartments, common elements and limited common elements.]" But the court disagreed, holding that to create "just title" to a predial servitude a conveyance must be specific as to the claimed right.

Comment 1: This case may have relevance in common law jurisdictions as well. Although the terminology is different, the concept of a prescriptive easement is certainly in existence.

But the critical distinction that the court addresses here, and that a common law court might not accept, is the distinction between the right to maintain the opening in the wall versus the right to have a right to light and view through the window. Of course, without one right, the other is relatively meaningless. But there are precious few common law decisions recognizing a prescriptive right to light, view or air.

The fact that this case is not a holding that actually upholds the creation of such a right will certainly weaken its authority in common law jurisdictions.

Comment 2: The court relies extensively on a Civil Law treatise by Professor Yiannopolis, a highly respected comparative property law scholar. The editor's contacts in New Orleans highly recommend Professor Yiannopolis' book for an understanding of how common an civil law interract.

Comment 3: Chef Paul is famous for cajun "blackened" seasoning, and he certainly blackened his neighbor's rooms. Maybe our condo owner will have to eat in the dark, but he still is a lot closer to that crawfish etouffe than the rest of us!!

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