Acquisitive prescription is a time-honored institution in civil law property regimes generally and in Louisiana property law in particular. Precarious possession is an equally important concept. A recent Louisiana Supreme Court decision, Boudreaux v Cummings, 167 So 2d 3d 599 (La. 2015), has raised important questions about the intersection of acquisitive prescription and precarious possession in Louisiana law. This article reconstructs the law of precarious possession to answer some of those questions. It traces how Louisiana’s two-tier institution of good and bad faith acquisitive prescription emerged from Roman law and pre-codification French and Spanish law, discusses how French commentators interpreted their codified version of that law and approached the problem of precarious possession with caution, and defends the continuing viability of Louisiana’s two-tier institution of acquisitive prescription. The article then reviews a significant body of Louisiana case law addressing precarious possession in the context of possessory actions and acquisitive prescription. It demonstrates that in two categories of cases—those involving true strangers and persons involved in contractual or legal status relationships – Louisiana courts reach defensible and consistent outcomes. But it argues that in a third category of cases – those involving neighbors who know each other well or members of the same close-knit community – courts face acute challenges and produce inconsistent results. The article contends that to resolve this third category of cases with greater sensitivity to the virtue of property sharing and to the specific relational context of these disputes, Louisiana law would benefit from the adoption of a presumption of sharing and concomitant indicia of giving or renunciation.
Lovett, John A, Precarious Possession (March 6, 2017). 77 Louisiana Law Review 617 (2017); Loyola University New Orleans College of Law Research Paper No 2017-01.
First posted 2017-03-10 07:47:09
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