Land Ownership Issues Co-owning land

I. OWNERSHIP OF LAND

1. The owner of land is, generally, free to do what he wants, so long as he does nothing that harms his neighbor. Freedom of land use is a long cherished freedom in Louisiana and in most other states of the United States.

* Generally, no “zoning” in rural areas
* Nuisance activities can be enjoined

2. Land includes standing timber, buildings, minerals, soil, water, etc.

* These interests in land may be sold separately

3. Public Records Doctrine. You must file your Deed at the Courthouse to protect your interest.

II. CO-OWNERS OF LAND

A. General Rules

1) Two or more individuals may co-own property. Co-ownership usually arises when two or more individuals inherit property from a deceased. Co-ownership also arises when two or more individuals purchase property from a third party.

2) Each co-owner has a right to possession of the property. A 1% co-owner has the same right to possession as a 99% co-owner.

3) Income and expenses associated with co-owned property are split in proportion to ownership interests. If one co-owner pays more than his proportionate share he has a right to receive reimbursement from the other co-owners.

4) An individual who is a co-owner has a right to sell, mortgage, or donate his undivided interest in the land. Valuation of undivided interests is a problem.

5) Each co-owner has a right to partition co-owned property.

B. Partition of Co-Owned Property

1) Each co-owner has a right to partition the property in order to liquidate his interest in co-owned property. There are two basic types of partitions: a) Partition in Kind; and b) Partition by Licitation.

a. Partition in Kind. Each receives a piece of the co-owned property in full ownership. This method is preferred under our law.

b. Partition by Licitation. Each receives a share of the sale proceeds after a sheriff’s sale. This method is available only if the property can not be partitioned in kind without decreasing the value of the property.

2) A co-owner who owns a 15% or less interest in property has no right to partition by licitation. A less than 15% co-owner gets the appraised value of his share. There is no sheriff sale.

C. Sale of Timber

1) Generally, all co-owners must consent to sell timber. One co-owner can “block” the sale.

2) Co-owners who, in the aggregate, own at least 80% interest may sell timber without the consent of the remaining co-owners. However, the sale proceeds attributable to the non-consenting co-owners must be placed in escrow for the benefit of the non-consenting co-owners.

D. Minerals

Co-owners of minerals can lease their interest in the minerals without the consent of other co-owners. Each co-owner is free to negotiate the “best deal” possible with the oil company. Consult with a lawyer before you sign.

III. SUCCESSIONS

When an individual dies all property he owns is passed to his heirs (no will) or legatees (under a will). However, the new owners are recognized under the law only if a “succession proceeding” is filed at the courthouse. The failure to file a succession proceeding can cause many complications with ownership. Succession proceedings should be filed within nine (9) months after the date of death. The heirs and legatees who file a succession proceeding will receive a Judgment of Possession recognizing their co-ownership interests in land. Only then can the heirs and legatees sell, mortgage or donate their interest.

IV. BOUNDARY MAINTENANCE

The failure to maintain clear and distinct boundaries often causes long and bitter disputes among neighbors. Boundary maintenance should have a high priority. Good fences make good neighbors. A boundary marker, such as an old fence, that has remained undisturbed and accepted as the boundary for at least 30 years becomes the legal boundary. Many old fences built 50 to 100 years ago without the benefit of a survey were not built on the actual boundary. However, these old fences are now the legal boundary. Boundary disputes can be resolved by an agreement between adjoining landowners or, if settlement is not possible, the court will resolve the dispute.

V. PROPERTY TAXES

Tax notices are mailed by the Sheriff late in the year. The taxes must be paid by December 31 or will be delinquent. If taxes are not paid the land will be sold at a sheriff sale for the amount of taxes due.

VI. LANDOWNER LIABILITY

Landowners can be held liable if hazardous conditions are allowed to remain on the land. This includes such things as ponds, wells, hazardous chemicals, etc. Insurance covering these risks can provide peace of mind to a landowner.

VII. HUNTING LEASE

Demand for recreational property is increasing. This provides an additional source of income. The hunting club often provides liability insurance and is the absentee owner’s “eyes and ears” on the land.

VIII. POSTING

It is no longer necessary to “post” land to keep out intruders. Consent of the owner is now necessary for anyone to enter property of another.

IX. WATER

A landowner has the right to withdraw water underneath his land and to make reasonable use of the water that flows across his land. However, a landowner does not have the right to change the natural flow of water as it crosses his land.

 

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