HLS 23RS-660 ORIGINAL
2023 Regular Session
HOUSE BILL NO. 220
BY REPRESENTATIVE PRESSLY
(On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
PROPERTY/IMMOVABLE: Provides relative to actions to determine ownership or
possession
1 AN ACT
2To amend and reenact Civil Code Articles 531 and 3440 and Code of Civil Procedure
3 Articles 1061, 3651, 3653, 3654, 3655, 3656(A), 3657 through 3662, and 3669,
4 relative to actions to determine ownership or possession; to provide with respect to
5 petitory actions, possessory actions, actions for declaratory judgments to determine
6 ownership, and similar proceedings; to provide for proof of ownership of
7 immovables; to provide with respect to precarious possession; to provide for
8 reconventional demands; to provide with respect to cumulation of actions; to provide
9 with respect to disturbances in fact and in law; to provide with respect to possession
10 and admissibility of title; to provide for relief and appeals; and to provide for related
11 matters.
12Be it enacted by the Legislature of Louisiana:
13 Section 1. Civil Code Articles 531 and 3440 are hereby amended and reenacted to
14read as follows:
15 Art. 531. Proof of ownership of immovable.
16 One who claims claiming the ownership of an immovable against another
17 who has been in possession of the immovable for one year after having commenced
18 possession in good faith and with just title or who has been in possession of the
19 immovable for ten years must shall prove that he has acquired ownership from a
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1 previous owner or by acquisitive prescription. If neither party is in possession In all
2 other cases, he need only prove a better title.
3 Revision Comments - 2023
4 (a) The 2023 revision of this Article changes substantially the burden of
5 proof imposed upon a person claiming the ownership of an immovable against
6 another who is in possession. Prior to the revision, this Article provided that in such
7 cases, the claimant's burden of proof was to prove that he had acquired ownership
8 from a prior owner or by acquisitive prescription. This burden of proof, which has
9 often been characterized as the requirement of proving "title good against the world,"
10 applied even when the defendant was a usurper who had no title at all. See Pure Oil
11 Co. v. Skinner, 294 So. 2d 797 (La. 1974). Application of that rule could lead to
12 obvious inequities by allowing a usurper who was in possession for only one year to
13 prevail against a party who might have been in possession for many years previously
14 under a title that suffered from only minor defects. See Pure Oil Co. v. Skinner, 294
15 So. 2d 797, 799 (La. 1974) (Summers, J., dissenting).
16 (b) The 2023 revision narrows the circumstances in which the person
17 claiming ownership must prove that he acquired ownership from a prior owner or by
18 acquisitive prescription. As revised, the Article provides that this onerous burden
19 of proof applies only when the defendant has been in possession for one year after
20 having commenced possession in good faith and with just title or when the defendant
21 has been in possession for ten years, regardless of whether in good faith or with just
22 title. Where neither of these circumstances applies, the burden imposed upon the
23 claimant is merely to prove a better title than that of the defendant.
24 (c) The good faith and just title mentioned in this Article are identical to the
25 good faith and just title necessary to start the running of the acquisitive prescription
26 of ten years under Article 3475. "Good faith" is used in this Article with the
27 meaning given in Articles 3480 and 3481. By the express wording of this Article,
28 the defendant's good faith is measured only at the commencement of his possession.
29 This is analogous to the rule that applies under Article 3482 for purposes of the
30 accrual of the acquisitive prescription of ten years.
31 (d) The 2023 revision does not change the rule that a common author in title
32 is presumed to be the previous owner. See Article 532; Weaver v. Hailey, 416 So.
33 2d 311 (La. App. 3 Cir. 1982). The presumption is rebuttable. See Article 532,
34 comment (b).
35 * * *
36 Art. 3440. Protection of precarious possession
37 Where there is a disturbance of possession, the possessory action is available
38 to a precarious possessor, such as a lessee or a depositary, against anyone except the
39 person for whom he possesses.
40 Section 2. Code of Civil Procedure Articles 1061, 3651, 3653, 3654, 3655, 3656(A),
413657 through 3662, and 3669 are hereby amended and reenacted to read as follows:
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1 Art. 1061. Actions pleaded in reconventional demand; compulsory
2 A. The defendant in the principal action may assert in a reconventional
3 demand any causes of action which he that the defendant may have against the
4 plaintiff in the principal action, even if these two parties are domiciled in the same
5 parish and regardless of connexity between the principal and reconventional
6 demands.
7 B. The defendant in the principal action, Except as otherwise provided in
8 Article 3657, and except in an action for divorce under Civil Code Article 102 or 103
9 or in an action under Civil Code Article 186, the defendant in the principal action
10 shall assert in a reconventional demand all causes of action that he the defendant may
11 have against the plaintiff that arise out of the transaction or occurrence that is the
12 subject matter of the principal action.
13 * * *
14 Art. 3651. Petitory action
15 The petitory action is one brought by a person who claims the ownership of,
16 but who is not in possession does not have the right to possess, of immovable
17 property or of a real right therein, against another who is in possession or who claims
18 the ownership thereof adversely, to obtain judgment recognizing the plaintiff's
19 ownership.
20 Comments - 2023
21 According to the Civil Code, possession is a matter of fact, but the right to
22 possess arises from possession for over a year and, once acquired, is lost if the
23 possessor is evicted and does not recover possession within one year of the eviction.
24 Civil Code Articles 3422 and 3434. For purposes of this Chapter, Code of Civil
25 Procedure Article 3660 defines "possession" as possession in fact, rather than the
26 right to possess, but this Article, among others, used the term "in possession" where
27 the right to possess, rather than factual possession, was intended. The 2023 revision
28 of this Article clarifies that a petitory action is brought by one who does not have the
29 right to possess. A person who still has the right to possess even though he might
30 have lost actual possession within the past year should bring a possessory action
31 against the person who evicted him, rather than a petitory action under this Article.
32 * * *
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1 Art. 3653. Same; proof of title; immovable
2 A. To obtain a judgment recognizing his ownership of immovable property
3 or real right therein, the plaintiff in a petitory action shall:
4 (1) Prove that he has acquired ownership from a previous owner or by
5 acquisitive prescription, if the court finds that the defendant is has been in possession
6 thereof; or for one year after having commenced possession in good faith and with
7 just title or that the defendant has been in possession for ten years.
8 (2) Prove a better title thereto than the defendant, if the court finds that the
9 latter is not in possession thereof in all other cases.
10 B. When the titles of the parties are traced to a common author, he the
11 common author is presumed to be the previous owner.
12 Comments - 2023
13 (a) The 2023 revision of this Article changes substantially the burden of
14 proof imposed upon the plaintiff in a petitory action when the defendant has the right
15 to possess. Prior to the revision, this Article provided that, if the defendant in a
16 petitory action was in possession, the plaintiff's burden of proof was to prove that he
17 had acquired ownership from a prior owner or by acquisitive prescription. This
18 burden of proof, which has often been characterized as the requirement of proving
19 "title good against the world," applied even when the defendant was a usurper who
20 had no title at all. See Pure Oil Co. v. Skinner, 294 So. 2d 797 (La. 1974).
21 Application of that rule could lead to obvious inequities by allowing a usurper who
22 was in possession for only one year to prevail in a petitory action against a party who
23 might have been in possession for many years previously under a title that suffered
24 from only minor defects. See Pure Oil Co. v. Skinner, 294 So. 2d 797, 799 (La.
25 1974) (Summers, J., dissenting).
26 (b) The 2023 revision narrows the circumstances in which the plaintiff in a
27 petitory action must prove that he acquired ownership from a prior owner or by
28 acquisitive prescription. As revised, the Article provides that this onerous burden
29 of proof applies only when the defendant has been in possession for one year after
30 having commenced possession in good faith and with just title or when the defendant
31 has been in possession for ten years, regardless of whether in good faith or with just
32 title. Where neither of these circumstances applies, the plaintiff's burden in the
33 petitory action is merely to prove a better title than that of the defendant.
34 (c) The good faith and just title mentioned in this Article are identical to the
35 good faith and just title necessary to start the running of the acquisitive prescription
36 of ten years under Civil Code Article 3475. "Good faith" is used in this Article with
37 the meaning given in Civil Code Articles 3480 and 3481. By the express wording
38 of this Article, the defendant's good faith is measured only at the commencement of
39 his possession. This is analogous to the rule that applies under Civil Code Article
40 3482 for purposes of the accrual of the acquisitive prescription of ten years.
41 (d) The 2023 revision does not change the rule that a common author in title
42 is presumed to be the previous owner. See Civil Code Article 532; Weaver v.
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1 Hailey, 416 So. 2d 311 (La. App. 3 Cir. 1982). The presumption is rebuttable. See
2 Civil Code Article 532, comment (b).
3 (e) Prior to its 2023 revision, this Article contained another example of the
4 use of the term "possession" with a meaning different from that given to the term in
5 Article 3660. See, e.g., Griffin v. Daigle, 769 So. 2d 720 (La. App. 1 Cir. 2000)
6 (explaining that the words "in possession" as formerly used in this Article required
7 that the defendant have had corporeal possession for at least one year or civil
8 possession for the same period of time preceded by corporeal possession). This
9 inconsistency in terminology was eliminated in the 2023 revision.
10 * * *
11 Art. 3654. Proof of title in action for declaratory judgment, concursus,
12 expropriation, or similar proceeding
13 When the issue of ownership of immovable property or of a real right therein
14 is presented in an action for a declaratory judgment, or in a concursus, expropriation,
15 or similar proceeding, or when the issue of the ownership of funds that are deposited
16 in the registry of the court and which that belong to the owner of the immovable
17 property or of the real right therein is so presented, the court shall render judgment
18 in favor of the party as follows:
19 (1) Who If the party who would be entitled to the possession of the
20 immovable property or real right therein in a possessory action has been in
21 possession for one year after having commenced possession in good faith and with
22 just title or has been in possession for ten years, the court shall render judgment in
23 favor of that party, unless the adverse party proves that he has acquired ownership
24 from a previous owner or by acquisitive prescription; or would be entitled to a
25 judgment recognizing his ownership in a petitory action under Article 3653(1).
26 (2) Who In all other cases, the court shall render judgment in favor of the
27 party who proves better title to the immovable property or real right therein, when
28 neither party would be entitled to the possession of the immovable property or real
29 right therein in a possessory action.
30 Comments - 2023
31 The 2023 revisions to this Article are intended to conform the burden of
32 proof in a declaratory judgment action or other proceeding in which ownership is at
33 issue to the burden of proof that applies under revised Article 3653 in a petitory
34 action. As with a petitory action, if one party has been in possession for one year
35 after having commenced possession in good faith and with just title or has been in
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1 possession for ten years, even in the absence of good faith or just title, that party will
2 prevail, unless the adverse party proves that he acquired ownership from a prior
3 owner or by acquisitive prescription.
4 Art. 3655. Possessory action
5 The possessory action is one brought by the possessor or precarious possessor
6 of immovable property or of a real right therein to be maintained in his possession
7 of the property or enjoyment of the right when he has been disturbed, or to be
8 restored to the possession or enjoyment thereof when he has been evicted.
9 Comments - 2023
10 The 2023 revision of this Article recognizes and complements a previous
11 amendment to the Civil Code granting a precarious possessor, such as a lessee, the
12 right to bring a possessory action against anyone other than the person for whom the
13 precarious possessor possesses. See Civil Code Article 3440.
14 Art. 3656. Same; parties; venue
15 A. A plaintiff in a possessory action shall may be brought by one who
16 possesses for himself. A person entitled to the use or usufruct of immovable
17 property, and one who owns a real right therein, possesses for himself. A predial
18 lessee possessory action may also be brought by a precarious possessor against
19 anyone except the person for whom he possesses for and in the name of his lessor,
20 and not for himself.
21 * * *
22 Comments - 2023
23 (a) The 2023 revision of this Article recognizes and complements a previous
24 amendment to the Civil Code granting a precarious possessor, such as a lessee, the
25 right to bring a possessory action against anyone other than the person for whom the
26 precarious possessor possesses. See Civil Code Article 3440.
27 (b) The statement in this Article that a usufructuary possesses for himself
28 means that the usufructuary has standing to bring a possessory action and does not
29 imply that a usufructuary can prescribe against the naked owner without taking the
30 steps required to terminate precarious possession under Civil Code Articles 3439 and
31 3478.
32 Art. 3657. Same; cumulation with petitory action prohibited or declaratory
33 judgment action; conversion into or separate petitory action by defendant
34 reconventional demand or separate suit asserting ownership or title
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1 A. The plaintiff may shall not cumulate the possessory action with either the
2 petitory and the possessory actions in the same suit or plead them in the alternative,
3 and when he does so he waives the possessory action or a declaratory judgment
4 action to determine ownership. If the plaintiff brings does so, the possessory action,
5 and without dismissing it and prior to judgment therein institutes the petitory action,
6 the possessory action is abated does not abate, but the defendant may object to the
7 cumulation by asserting a dilatory exception. If, before executory judgment in the
8 possessory action, the plaintiff institutes the petitory action or a declaratory judgment
9 action in a separate suit, the possessory action abates.
10 B. When, except as provided in Article 3661(1)-(3), the defendant in a
11 possessory action asserts title in himself, in the alternative or otherwise, he the
12 defendant does not thereby converts the suit convert the possessory action into a
13 petitory action, and judicially confesses or judicially confess the possession of the
14 plaintiff in the possessory action, but the defendant's assertions of title shall be
15 considered in defense of the possessory action only for the purposes stated in Article
16 2661(B)(1) through (3).
17 C. Unless the plaintiff in the possessory action seeks an adjudication of his
18 ownership, the defendant shall not file a reconventional demand asserting a petitory
19 action or declaratory judgment action to determine ownership. If, before executory
20 judgment in a possessory action, the defendant therein institutes a petitory action or
21 a declaratory judgment action to determine ownership in a separate suit he files
22 against the plaintiff in the possessory action, the plaintiff defendant in the petitory
23 possessory action judicially confesses the possession of the defendant therein
24 plaintiff in the possessory action.
25 Comments - 2023
26 (a) The 2023 amendment of this Article preserves the rule of noncumulation
27 of the possessory and petitory actions and expands the rule to prohibit cumulation
28 of the possessory action with a declaratory judgment action to determine ownership.
29 At the same time, the amendment lessens the consequences for the plaintiff of an
30 improper cumulation and eliminates the judicial confession of the plaintiff's
31 possession that previously arose from the defendant's assertions of title in a
32 possessory action.
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1 (b) Prior to the 2023 amendment of this Article, if the plaintiff cumulated the
2 possessory action with the petitory action, the possessory action simply abated.
3 Under the revised Article, when the plaintiff cumulates the possessory action with
4 a petitory action or with a declaratory judgment action to determine ownership, the
5 possessory action does not abate, but the defendant has the right to object to the
6 improper cumulation by filing a dilatory exception. See Article 926(A)(7). Upon
7 sustaining the exception, the court may order separate trials or may order the plaintiff
8 to elect which action he desires to pursue, as provided in Articles 464 and 465. If not
9 raised through a timely dilatory exception, the objection of improper cumulation is
10 waived. See Article 926(B).
11 (c) If, rather than cumulating the possessory action with a petitory or
12 declaratory judgment action, the plaintiff in the possessory action files a separate
13 action to determine ownership while the possessory action is pending, the possessory
14 action abates, but the plaintiff by doing so makes no confession of the defendant's
15 possession.
16
17 (d) Prior to the 2023 revision, the consequences for a defendant who asserted
18 title in himself in response to a possessory action were grave. Not only did his
19 assertions of title convert the possessory action into a petitory action in which he
20 became the plaintiff, but they also constituted a judicial confession of the other
21 party's possession, thus triggering the onerous burden under Article 3653 of proving
22 title good against the world. This harsh penalty has been removed. The defendant's
23 assertions of title in a possessory action no longer convert the action into a petitory
24 action or constitute a judicial confession of the plaintiff's possession; however, the
25 defendant's assertions of title are considered in defense of the possessory action only
26 for the limited purposes specified in Article 3661(B)(1) through (3). Thus, the
27 defendant cannot divert the focus of a possessory action from the issue of possession
28 to the often more complicated issue of ownership through the simple expedient of
29 injecting issues of ownership in his pleadings.
30 (e) Unless the plaintiff in a possessory action has sought an adjudication of
31 his ownership, the defendant is not permitted to assert a claim of ownership by
32 reconvention. If the defendant asserts ownership by instituting a separate suit before
33 judgment in the possessory action becomes executory, he judicially confesses the
34 possession of the plaintiff in the possessory action. This judicial confession does not
35 arise, however, if it is the plaintiff in the possessory action who institutes the
36 separate suit to determine ownership while the possessory action is pending and the
37 defendant reconvenes in that separate suit to assert his own claim of ownership.
38 Art. 3658. Same; requisites
39 To maintain the possessory action the possessor must plaintiff shall allege
40 and prove that all of the following:
41 (1) He The plaintiff had possession or precarious possession of the
42 immovable property or real right therein at the time the disturbance occurred;.
43 (2) He The plaintiff and his ancestors in title, or the person for whom the
44 plaintiff possesses precariously and that person's ancestors in title, had such
45 possession quietly and without interruption for more than a year immediately prior
46 to the disturbance, unless evicted by force or fraud;.
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1 (3) The disturbance was one in fact or in law, as defined in Article 3659;
2 and.
3 (4) The possessory action was instituted within a year of the disturbance.
4 Comments - 2023
5 The 2023 amendments to this Article recognize that a precarious possessor
6 may bring a possessory action. The precarious possessor himself need not have
7 exercised his precarious possession for a full year prior to the disturbance; it suffices
8 if the person for whom he possesses precariously, or that person's ancestors in title,
9 have had possession for a year.
10 Art. 3659. Same; disturbance in fact and in law defined
11 A. Disturbances of possession which that give rise to the possessory action
12 are of two kinds: disturbance in fact and disturbance in law.
13 B. A disturbance in fact is an eviction, or any other physical act which that
14 prevents the possessor of immovable property or of a real right therein from enjoying
15 his possession quietly, or which that throws any obstacle in the way of that
16 enjoyment.
17 C. A disturbance in law is the occurrence or existence of any of the
18 following adversely to the possessor of immovable property or a real right therein.
19 (1) The execution, recordation, or registry, or continuing existence of record
20 after the possessor or his ancestors in title acquired the right to possess, of any
21 instrument which that asserts or implies a right of ownership or right to the
22 possession of the immovable property or of a real right therein, or any.
23 (2) The continuing existence of record of any instrument that asserts or
24 implies a right of ownership or right to the possession of the immovable property or
25 a real right therein, unless the instrument was recorded before the possessor and his
26 ancestors in title commenced possession.
27 (3) Any other claim or pretension of ownership or right to the possession
28 thereof of the immovable property or a real right therein, whether written or oral,
29 except when asserted in an action or proceeding, adversely to the possessor of such
30 property or right.
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1 Comments - 2023
2 (a) The 2023 amendments to this Article clarify when a disturbance in law
3 must arise, in relation to the time that the plaintiff enters into possession or acquires
4 the right to possess, in order for the disturbance to form the basis of a possessory
5 action.
6 (b) Under Subparagraph (C)(1) of this Article, the plaintiff in a possessory
7 action or his ancestors in title must have acquired the right to possess before the
8 execution, recordation, or registry of an instrument that is claimed to constitute a
9 disturbance in law. Thus, the plaintiff cannot complain that a previously recorded
10 instrument, such as a prior conveyance in favor of the defendant, constitutes a
11 disturbance in law of his possession. Similarly, under Subparagraph (C)(2), the
12 continuing existence of record of an adverse instrument does not constitute a
13 disturbance in law if the instrument was recorded before the possessor and his
14 ancestors in title commenced possession.
15 (c) The temporal difference between Subparagraph (C)(1) (which refers to
16 the time the plaintiff acquired the right to possess) and Subparagraph (C)(2) (which
17 refers to the earlier point in time at which the plaintiff commenced possession) is
18 intentional. Until the plaintiff has been in possession for one year, he is not entitled
19 to complain of any kind of disturbance in law. After the one-year period has
20 accrued, the plaintiff is entitled to complain of the execution and recordation of new
21 adverse instruments, as Subparagraph (C)(1) provides, and may also complain of the
22 continuing existence of record of instruments that were recorded during that one-year
23 period and that, on account of their continuing existence of record after the accrual
24 of the one-year period, constitute a continuing disturbance of his possession. In no
25 event is the plaintiff permitted to claim that an instrument recorded before he
26 commenced possession is a disturbance of his possession.
27 (d) The reason that the continuing existence of record of an adverse
28 instrument constitutes a distinct disturbance in law is to prevent a possessor from
29 losing the right to complain of an instrument that was recorded after he commenced
30 possession but more than one year before he brings the possessory action. Without
31 such a rule, his right to bring the possessory action would be lost under Article
32 3658(4) for failure to institute the action within one year of the recordation of the
33 instrument, even though he may have had no reason to suspect than an adverse
34 instrument had been recorded. Because the continuing existence of record is a
35 continuing disturbance, the one-year prescriptive period under Article 3658(4) for
36 bringing a possessory action complaining of this disturbance in law effectively does
37 not commence to run under these circumstances. See Roy O. Martin Lumber Co.,
38 Inc. v. Lemoine, 381 So. 2d 915 (La. App. 3 Cir. 1980). See also Ree Corp. v.
39 Shaffer, 260 So. 2d 307, 313 (La. 1972) (Tate, J., concurring).
40 Art. 3660. Same; possession
41 A. A person is in possession of immovable property or of a real right therein,
42 within the intendment of the articles of this Chapter, when he the person has the
43 corporeal possession thereof, or civil possession thereof preceded by corporeal
44 possession by him or his ancestors in title, and possesses for himself or precariously
45 for another, whether in good or bad faith, or even as a usurper.
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1 B. Subject to the provisions of Articles 3656 and 3664, a person who claims
2 the ownership of immovable property or of a real right therein possesses through his
3 lessee, through another who occupies the property or enjoys the right under an
4 agreement with him or his lessee, or through a person who has the use or usufruct
5 thereof to which his right of ownership is subject.
6 Comments - 2023
7 The 2023 amendment of this Article retains the rule that, for purposes of this
8 Chapter, "possession" means possession in fact, rather than the right to possess,
9 except where the right to possess is expressly stated. Consistent with the changes
10 made to Articles 3655, 3656, and 3658, the amended Article recognizes that
11 precarious possession for another person constitutes possession for purposes of this
12 Chapter.
13 Art. 3661. Same; title not at issue; limited admissibility of evidence of title
14 A. In the possessory action, the ownership or title of the parties to the
15 immovable property or real right therein is not at issue.
16 B. No evidence of ownership or title to the immovable property or real right
17 therein shall be admitted except to prove any of the following:
18 (1) The possession thereof by a party as owner;.
19 (2) The extent of the possession thereof by a party; or and his ancestors in
20 title.
21 (3) The length of time in which a party and his ancestors in title have had
22 possession thereof.
23 Comments - 2023
24 The 2023 amendment to this Article clarifies that a person is entitled to use
25 evidence of ownership for purposes of proving not only the extent of his own
26 possession, but also the extent of possession of his ancestors in title. See Civil Code
27 Article 3442.
28 Art. 3662. Same; relief which that may be granted successful plaintiff in judgment;
29 appeal
30 A. A judgment rendered for the plaintiff in a possessory action shall:
31 (1) Recognize his the plaintiff's right to the possession of the immovable
32 property or real right therein, and restore him to possession thereof if he has been
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1 evicted, or maintain him in possession thereof if the disturbance has not been an
2 eviction;.
3 (2) Order the defendant to assert his adverse claim of ownership of the
4 immovable property or real right therein in a petitory action to be filed within a delay
5 to be fixed by the court not to exceed sixty days after the date the judgment becomes
6 executory, or be precluded thereafter from asserting the ownership thereof, if the
7 plaintiff has prayed for such this relief and this relief is not precluded by Paragraph
8 B of this Article.; and
9 (3) Award him the plaintiff the damages to which he is entitled and for
10 which he has prayed for.
11 B. A judgment in a possessory action shall not grant the relief described in
12 Subparagraph (A)(2) of this Article against the state or against a defendant who
13 appeared in the action only through an attorney appointed to represent him under
14 Article 5091.
15 C. A suspensive appeal from the judgment rendered in a possessory action
16 may be taken within the delay provided in Article 2123, and a devolutive appeal may
17 be taken from such the judgment only within thirty days of the applicable date
18 provided in Article 2087(A).
19 Comments - 2023
20 (a) Among the substantive changes made to this Article by the 2023 revision,
21 Subparagraph (A)(2) provides that the delay within which the losing defendant can
22 be ordered to file a petitory action, where that relief was prayed for by the prevailing
23 plaintiff, is fixed in all cases at sixty days. This relief is not available against a
24 defendant who appeared in the action only through an attorney appointed to represent
25 him under Article 5091. Nevertheless, the prevailing plaintiff is not without a
26 remedy to obtain a determination of ownership when the defendant has appeared in
27 the possessory action in that manner; the plaintiff can institute his own declaratory
28 judgment action against the defendant and, depending on the circumstances, may be
29 entitled to have an attorney again appointed to defend the absentee defendant in the
30 declaratory judgment action.
31 (b) The 2023 revision removes the constitutional infirmity in this Article
32 noted by the Supreme Court in Todd v. State, through Dept. of Natural Resources,
33 456 So. 2d 1340 (La. 1983), amended 474 So. 2d 430 (La. 1985), in which the court
34 held that, although a possessory action can be brought against the state, the relief
35 allowed under Subparagraph (A)(2) of this Article is a form of liberative prescription
36 that cannot run against the state under Article XII, Section 13 of the Constitution of
37 Louisiana.
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1 (c) A judgment rendered in violation of Paragraph B of this Article is subject
2 to annulment under Article 2004.
3 * * *
4 Art. 3669. Possessory action unavailable between owner of mineral servitude and
5 owner of dependent mineral royalty
6 In the event of a dispute between the owner of a mineral servitude and the
7 owner of a mineral royalty burdening or alleged to burden the servitude in question,
8 the possessory action is unavailable to either party, and the only available real action
9 is the petitory action. The burden of proof on the plaintiff in such an the petitory
10 action is that which must be borne by the plaintiff in a petitory action when neither
11 party is in possession to prove a better title than that of the defendant.
12 Comments - 2023
13 Prior to its revision in 2023, this Article provided that the plaintiff's burden
14 of proof in a petitory action contemplated by this Article was that which applies
15 when neither party is in possession. Rather than following this indirect approach, the
16 2023 revision states more plainly and directly what the burden of proof is in such an
17 action: it is to prove a better title.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 220 Original 2023 Regular Session Pressly
Abstract: Provides with respect to actions to determine ownership or possession.
Present law (C.C. Art. 531) requires a person claiming ownership of an immovable against
another in possession to prove that he acquired ownership from a previous owner or by
acquisitive prescription.
Proposed law imposes the burden of proof provided by present law only when the other
person has been in possession for one year in good faith and with just title or has been in
possession for 10 years, otherwise, the burden of proof is better title.
Present law (C.C. Art. 3440) provides that the possessory action is available to a precarious
possessor, such as a lessee or a depositary.
Proposed law deletes the incorrect reference to depositaries found in present law.
Present law (C.C.P. Art. 1061) requires the defendant in the principal action to reconvene
in all causes of action that arise out of the same transaction or occurrence but provides for
certain exceptions, such as in actions for divorce or for disavowal.
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HB NO. 220
Proposed law adds to the exceptions provided by present law the filing of a reconventional
demand asserting a petitory action or declaratory judgment action to determine ownership
under Article 3657.
Present law (C.C.P. Art. 3651) provides that a petitory action is brought by a person who is
not in possession of immovable property or a real right therein.
Proposed law changes present law to clarify that a petitory action is brought by a person who
does not have the right to possess immovable property or a real right therein.
Present law (C.C.P. Art. 3653) sets forth the burden of proof that must be satisfied by the
plaintiff in a petitory action and requires the plaintiff to prove that he acquired ownership
from a previous owner or by acquisitive prescription if the defendant is in possession of the
immovable.
Proposed law imposes the burden of proof provided by present law only when the defendant
has been in possession for one year in good faith and with just title or has been in possession
for 10 years, otherwise, the plaintiff's burden of proof is better title.
Present law (C.C.P. Art. 3654) provides that the same burden of proof that must be satisfied
by the plaintiff in a petitory action also applies to an action for a declaratory judgment or a
concursus, expropriation, or similar proceeding.
Proposed law changes present law to impose the burden of proving acquisition of ownership
from a previous owner or by acquisitive prescription when the adverse party has been in
possession for one year in good faith and with just title or has been in possession for 10
years, otherwise, the burden of proof is better title.
Present law (C.C.P. Art. 3655) provides that a possessory action is brought by the possessor
of immovable property or a real right therein.
Proposed law adds to present law that a possessory action may also be brought by a
precarious possessor.
Present law (C.C.P. Art. 3656(A)) provides that a possessory action shall be brought by one
who possesses for himself and specifies that a predial lessee does not possess for himself.
Proposed law changes present law to allow a possessory action to be brought by a precarious
possessor, such as a lessee, against anyone except the person for whom the precarious
possessor possesses, in accordance with the Civil Code.
Present law (C.C.P. Art. 3657) prohibits the cumulation of possessory and petitory actions
and provides that a plaintiff who improperly cumulates these actions or institutes a petitory
action waives the possessory action. Present law further provides that a defendant who
improperly asserts title in the possessory action or institutes a petitory action judicially
confesses the possession of the plaintiff in the possessory action.
Proposed law expands present law to prohibit cumulation of a possessory action with either
a petitory action or a declaratory judgment action to determine ownership.
Proposed law changes the consequence provided by present law for improper cumulation by
the plaintiff, instead providing that the defendant may object by asserting a dilatory
exception. Proposed law also changes the consequence when the defendant improperly
asserts title in the possessory action, instead limiting the defendant's assertions of title to
those matters that may be considered in the possessory action under Article 3661.
Proposed law retains the consequence provided by present law when the defendant institutes
a separate petitory action or declaratory judgment action to determine ownership, requiring
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HB NO. 220
the defendant to judicially confess the possession of the plaintiff. Proposed law also
prohibits the defendant from filing a reconventional demand asserting claims of title unless
the plaintiff seeks an adjudication of ownership.
Present law (C.C.P. Art. 3658) sets forth the items that must be proven by the plaintiff in a
possessory action.
Proposed law retains present law but recognizes that a possessory action may also be brought
by a precarious possessor.
Present law (C.C.P. Art. 3659) provides with respect to disturbances in law and in fact.
Proposed law retains present law but clarifies when a disturbance in law must arise in order
for the disturbance to form the basis of a possessory action.
Present law (C.C.P. Art. 3660) provides for a definition of "possession" for purposes of
present law.
Proposed law retains present law but adds that precarious possession also constitutes
possession for purposes of proposed law.
Present law (C.C.P. Art. 3661) provides that no evidence of ownership or title to immovable
property or a real right therein shall be admitted in a possessory action except under certain
circumstances, such as to prove the extent of possession by a party.
Proposed law retains present law but adds that evidence of ownership or title may also be
admitted to prove the extent of possession by a party's ancestors in title.
Present law (C.C.P. Art. 3662) sets forth the relief that may be granted to a successful
plaintiff in a possessory action, including ordering the defendant to assert his claim of
ownership within a delay not to exceed 60 days or be precluded thereafter from doing so.
Proposed law fixes the delay provided by present law at 60 days and also provides that this
relief is not available against the state or against a defendant who appeared in the action only
through an attorney appointed to represent him under Article 5091.
Present law (C.C.P. Art. 3669) provides that the burden of proof in an action between the
owner of a mineral servitude and the owner of a mineral royalty is that which must be borne
by the plaintiff in a petitory action when neither party is in possession.
Proposed law clarifies that the applicable burden of proof is to prove better title.
(Amends C.C. Arts. 531 and 3440 and C.C.P. Arts. 1061, 3651, 3653, 3654, 3655, 3656(A),
3657-3662, and 3669)
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