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Numărul 1 / 2008 
THE PUBLIC RECORDS DOCTRINE IN LOUISIANA AND ITS EFFECT UPON THE EXAMINATION OF TITLE
Thomas A. Harell*
Rezumat: Doctrina înscrierilor în registrele publice şi efectul acesteia asupra examinării titlului. Publicitatea imobiliară în Louisiana este tributară specificităţii legislative a acesteia. Intersectarea între Codul civil de origine franceză adoptat în 1825 şi evoluţia ulterioară tipică sistemului de common law au dus la apariţia unei problematici speciale. Autorul îşi propune să analizeze din această perspectivă regimul juridic al înscrierilor în registrele publice şi felul în care respectivele înscrieri influenţează validitatea şi proba dreptului de proprietate.
Mots clés: publicité immobilière, registres, propriété, titre, preuve Cuvinte-cheie: publicitatea imobiliară, registre, proprietate, titlu, proba
Part One: What the Public Records Disclose Section 1. Introduction The examination of titles in Louisiana starts with an examination of the Parish Conveyance and Mortgage Records in which virtually all instruments creating, modifying or transferring real rights over immovable property are recorded. It should also be noted, however, that there are many things that are not reflected or disclosed by those records that must also be taken into account before one can be reasonably certain of the ownership and status of land. For reasons that are largely historic, the offices in which the conveyance and mortgage records are kept are separate and distinct, although, except for Orleans Parish1, the parish clerk of court is ex-officio recorder of both mortgages and of conveyances. The Civil Code originally appeared to provide, as is the case with most of the rest of the states, that recordation gave "notice" to the public of an instrument and its contents. It did not preclude the possibility that actual notice of an unrecorded instrument would be equally effective. However, following adoption of the Code of 1825 there were a series of early enactments affecting the matter which led the Louisiana courts to arrive at varying opinions as to the effect and significance of recordation. In 1909, after an extensive review of the legislation and jurisprudence on the subject the Supreme Court, in the case of McDuffie v. Walker2, largely relying upon some amendments to the Civil Code and Act 274 of 1855 in particular, concluded that: The lawgiver, it would seem, was determined to settle the vexed question whether knowledge was equivalent to registry in Louisiana, and he declared that it was not, "all sales, contracts, and judgments which shall not be so recorded shall be utterly null and void, except between the parties."3 This principle, that actual knowledge of an instrument that is required to be recorded does not substitute for recordation, is the foundation upon which the examination and approval of titles in Louisiana has been based since that time. By Act 169 of 2005, effective June, 1, 2006, the legislature made the most extensive revision of the provisions regulating recordation and the effect of instruments establishing, modifying or transferring interests in or over immovables since the McDuffie case. The Act revises and replaces most of the provisions in the Civil Code and Titles 9 and 44 of the Revised Statutes relating to the form, content and effect of recordation of mortgages and conveyances. 1. Act 621 of 2006 has transferred effective January 1, 2009 the supervision of these offices to 2. 51 So. 100 (1909) 3.The quotation is from Act 274 of 1855 2 Despite the extensive consolidation, revision and repeal of much of the legislation regulating the subject, the Act essentially continues the system that has prevailed since McDuffie, although it does attempt to clarify and make more definite some of its limits and effects. For the most part it does not change the process of recordation and publicity once a document is in the hands of the recorder and leaves those provisions relating to the maintenance and indexing of the records largely unchanged. The Act consolidates most of the substantive provisions relating to recordation into a new title of the Civil Code4 and two Chapters of Title 44 of the Revised Statutes. As a result, both sources must be examined to understand the full import of the provisions found in each. Section 9 of Act 169 is a "savings clause" providing that any instrument recorded before June 30, 2006, the date it became effective, that was effective under the law then prevailing will continue to be effective thereafter and any recorded instrument that was not effective under such law, but that would be effective under the law becoming effective on June 1, will be effective as if it were recorded on that date.5 Although this will provide the greatest stability to titles, it will impose upon the examiner the task of knowing the law as it existed both before and after June 1, 2006. In that regard the author would refer the reader to a most excellent summary of the former law contained in a paper delivered by Mr. Neelis F. Roberts the last time this short course was offered. With his permission the present work has drawn upon, but does not repeat, much of the exhaustive research contained in that article and which provides an excellent background of the sources of the revision under consideration.6
Section 2. The Effect Of Recordation As is the case with the prior law, Act 169 provides that the rights and obligations established or created by certain defined written instruments that affect immovables are "without effect as to a third person" unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of the law.7 This principle gives rise to the following consequences. 4 Title XXII-A of Book III added Articles 3338 through 3368. Many of these were moved 5 "Section 9. Nothing in this Act shall be deemed to diminish the effect of, or render ineffective, 6 . Mr. Roberts work is found in the proceedings of the 1997 short course on the Examination of 7 C. C. Art. 3338. 3 A. Knowledge is irrelevant. As noted above and despite language from time to B. A recorded instrument is effective as to third persons whether or not they C. The Act also rejects the rule - if it existed - asserted by the Second Circuit in D. One exception to the rule that is rarely used because of the difficulty of The "effect" of an instrument should not be confused with the effect of its recordation. A. Although the law does not expressly so state, it is implicit that the "third B. Simply stated, the test is whether, if the instrument is now recorded, will the C. Even if an act is never recorded, a party to it is bound by its provisions and In summary, the recordation of an instrument ordinarily will be effective to establish as to the "world" the right of a party to some benefit or impose on him some obligation, from the effective date of that instrument, but that effect cannot be asserted against a third person who, in the interim, has acquired rights that would be adversely affected by doing so. 8 The courts previously had declared that the principle rises to the level of being a matter of 9 817 So.2d 418 (La. App. 3d 2002) 4 A corollary to the matter mentioned in paragraph C above, is that since the parties to an instrument are not "third persons" they are bound to recognize its provisions in any case where such provisions are relevant. Anyone with an interest in doing so may assert the provisions of an unrecorded act or instrument, against one who is a party to it (and thus who is obviously not a third person.) However, in doing so, the person relying upon it must also recognize all of its provisions and cannot "pick and choose" portions he wishes to enforce. In brief, a party is bound by an unrecorded act, even to a third person.
Section 3. Who Are "Third Persons" A "third person" essentially is a person who is neither a party to an instrument nor who can be held to recognize or perform its obligations by virtue of a personal or contractual obligation independent of its recordation. Thus, Article 3343 expressly declares that a person "who by contract assumes an obligation or is bound by contract to recognize a right is not a third person with respect to the obligation or right or to the instrument creating or establishing it." This is somewhat broader than merely saying one who is bound by a contract is not a third person to it. One who takes property "subject to" a defined or identified contract may not be bound to perform its terms, but he does not appear to be a "third person" with respect to it, if contractually, at least, he is required to recognize its obligations in some manner. The nature and extent of acquiring property "subject to" an unrecorded contract is discussed in somewhat greater detail hereafter. The Article expressly declares that witnesses are third persons to the act for which they are a witness, as are those who are "not a party to or personally bound by" the unrecorded instrument. The articles, as amended, do not mention the status of notaries with respect to acts with which they are involved. If the notarial jurat is merely of an acknowledgement of a contract it would appear that the notary is a "third person" to its provisions. On the other hand, a notary can hardly claim to be a "third person" to an authentic act, will or other instrument executed before him in his official capacity, and which by custom and practice, he declares to be "his act". The rules mentioned above are virtually the same as those that previously prevailed. The extent to which the courts have concluded that certain other persons are, or are not, third persons is mentioned in Part Two.
Section 4. Instruments That Are Required To Be Recorded In General The following documents are expressly declared by C. C. Art. 3338 to be ineffective as to third persons unless they are recorded. A. "Instruments" that: 1. Transfer an immovable or establish a real right in or over an immovable. 2. Lease an immovable. 3 Grant options or rights of first refusal or are contracts to buy, sell, or lease an immovable or establish a real right in or over an immovable. 4. Modify, terminate or transfer the rights created or evidenced by one of the matters noted in 1 - 3 above. 5 B. Other instruments that the law expressly requires to be recorded as a condition C. Instruments or documents, which by the terms of a recorded instrument are The Act sometimes appears to refer indiscriminately to "instruments" and "documents". However, the term "instrument" is used in the sense referred to in Merriman-Webster's Unabridged Dictionary as: "A legal document . . . evidencing legal rights or duties especially of one party to another." The term "document" is used generally to refer to a written act or expression of any nature. Mineral Rights Despite some early ambiguities relative to the type and nature of mineral rights and some theoretical inconsistencies, most of the ordinary contracts and agreements utilized by the industry regulating the ownership of minerals before production will fall within the ambit of Article 3338. Article 18 of the Mineral Code itself provides that all "sales contracts and judgments affecting mineral rights are subject to the laws of registry." The Mineral Code also defines "mineral rights" as consisting of the mineral servitude, mineral royalty, executive right, and mineral lease, as well as "interests created out of a mineral lessee's interest." This would to appear to encompass overriding royalties and subleases. The Mineral Code also provides that contracts by the landowner or owner of a mineral right "disposing of minerals" after they are severed, if filed for registry in the conveyance records are "subject to the laws of registry" and presumably, are binding upon third persons acquiring interests in the mineral right. It is generally considered that an assignment by a lessor of a portion of the royalty payable under a specific lease is equivalent to assigning an "overriding royalty interest in the lease" and to be a "contract affecting mineral rights" within the ambit of M.C. Arts. 18 and 80 and thus subject to the laws of registry.12 It might be noted that the assignment or encumbrancing of rents from an ordinary predial lease is regulated by special provisions that permit recordation and make the rights effective as to third persons. The assignment is to be recorded in the conveyance records, unless it is "included" in an act of mortgage in which case recordation of the mortgage preserves it. The act applies to the assignment by a landowner or mineral 10 C. C. Art. 3340 11 C. C. Art. 3339 12 The distinction between a "mineral royalty"; a royalty payable under a lease; an overriding 6 owner of amounts that are classified as rent under the terms of the Mineral Code, but not otherwise.13 Chapter 9 of the Commercial Laws, (Louisiana's version of the U.C. C.) regulates the assignment of "accounts" which are defined to include payments owed to a landowner or owner of a mineral rights such as a "bonus, rent, or royalty, payable out of or measured by minerals or is otherwise attributable to" the mineral right "whether or not such a payment is rent under the Mineral Code", but some what inconsistently excludes "payment of rent to a landowner or servitude owner." It is hard to see what the provision affects except for payments of "overriding royalties" to a sublessor and perhaps for amounts payable to unleased interest in units, or a mineral royalty interest. Technically a "mineral royalty" is "the right to participate in production of minerals from land owned by another or land subject to a mineral servitude owned by another."14. On the other hand the royalty payable under the mineral lease is "rent" due the landowner.15 Ordinarily, an assignment of rent due under a lease would not be considered a real right. Finally, the assignment of a fractional part of the oil and gas or proceeds thereof produced from the land or a mineral right by the owner is a mineral royalty. The "assignment" of a portion of the royalties payable under the terms of a lease is an assignment of rent. A transfer or assignment of minerals produced from the land "during the term" of a particular lease may easily raise serious questions as to its nature. In summary, the rights and obligations of persons taking security in or acquiring rights to oil and gas or other minerals after they are severed is complicated, and fundamentally are not regulated by instruments recorded in the conveyance or mortgage records, other than to establish the initial right to produce them. The interrelationship between the Mineral Code, R.S. 9:4401, and the Uniform Commercial Code is complicated and one that requires careful analysis in any particular case.
Section 5. Statutory Exceptions Art. 3340 recognizes that from time to time the legislature has made or may make provision for the recordation of instruments in the mortgage or conveyance records without expressly stipulating what effect that recordation may have. Furthermore, they may not fall into the categories established by C. C. Art. 3338. Art. 3340 takes these possibilities into account in two ways. A. If the instrument is one that creates a right in or over an immovable of the kind described in Art. 3338, then in the absence of some limitation in the act that regulates its recordation, the general provisions of the Code apply.
13 See: R.S. 9:4401. 14. M.C. Art. 80. 15 M.C. Art. 123. 7 B. If the instrument does not create a right or interest described in Art. 3338, then its recordation has only the effect, if any, given to it by the act providing for its recordation.16 There are several current provisions of law that make the kind of exception contemplated by paragraph A, above by permitting the recordation of an "extract" or summary of certain kinds of instruments in lieu of recording the actual instrument itself. The most prominent of these are the following. Joint Operating Agreements For Mineral Rights M.C. Art. 216 provides that an agreement entered by owners of mineral rights for the joint exploration, development, operation or production of minerals there under is binding upon third persons when it is recorded in the conveyance records. M.C. Art. 217 then provides that in lieu of recording the instrument itself, the parties may file a "declaration" describing the lands, stating "in general terms the nature or import of the agreement" and "where the instrument may be found."17 A companion provision to the above, R.S. 9:2334 formerly provided that upon payment of the proper fee any person could have the recorder "record" the entire instrument. This seemed to contemplate that the instrument was in fact filed with the recorder and that he would only record the declaration filed with it. The section was repealed as being inconsistent with rest of the Act that clearly provided the parties could either record the entire instrument, or a declaration of its contents. It also conflicted with the principle that filing is what gives the instrument its status as a recorded document. There is of course, nothing to prevent the filing of the entire instrument at any time, and such filing, consistent with Art. 216, would continue the effect of the filing of the declaration from that date. That might, however, raise a question as to which was the accurate expression of the agreement unless, perhaps, the parties to it would also contemporaneously with filing of the entire document agree that it had not been amended or modified since the declaration was filed. Trusts R.S. 9:2092 provides that if the "trust property" of an inter vivos or testamentary trust "includes immovables or other property the title to which must be recorded in order to affect trust property" a trustee shall file the "trust instrument" or an extract thereof in each parish in which property is located. This does not seem to contemplate that somehow, the trust property may be transferred to "a trust" independently of the "trust instrument." The extract of the trust instrument is to be executed by either the trustee or settlor of the trust and "shall include" the name of the trust, if any, a statement as to whether the trust is revocable or irrevocable; the name of each settlor and of each trustee, the name "or other description" of the beneficiaries, date of the trust and a brief description of the immovable property or other property subject to the trust, the title to which must be 16 Examples are found in the provisions requiring recordation of corporate articles of 17 This provision and the preceding one were formerly designated as R.S. 9:2731 and 2732 and 8 recorded in order to affect third persons.18 How the "title" to the immovable got "into" the trust is not clear. It is beyond the scope of this work, but it should be noted that many of the provisions relating to trusts are difficult to integrate into the property and the recordation provisions. It seems clear that a conveyance in trust is not, as the common law initially postulated, a transfer of legal title to one person and of equitable title to another, since such a regime is incompatible with Louisiana's legal system. The Louisiana act seems to be ambivalent as to whether a "trust" is a legal entity or the transfer to a "fiduciary" who holds ownership of land, for example, for the benefit of others under the terms defined in the "trust instrument."19 Leases R.S. 44:104 continues the provisions of former R.S. 9:2721.1 permitting one to record a "notice of lease" in lieu of the entire contract. Subleases expressly fall within its provisions. The notice "shall" include the identity of the lessor and lessee, a description of the leased property, the date of the lease and its term, and any provisions for extensions or renewals and a reference to options, rights of first refusal or other agreements of the lessor relative to the sale or other disposition of the leased premises. Amendments or modifications of the lease that do not affect a matter that is not required to be included in the notice do not have to be recorded, Finally, the Act permits the notice to designate a person who may, but is apparently not required, to certify on behalf of a party the terms of the lease, whether it is in force and effect and that its obligations have or have not been performed. Mineral leases are expressly excluded from the provisions. Its predecessor, R.S. 9:2721.1, did not expressly refer to mineral leases. There were several problems with its application to mineral leases that led the reporter, committee and council to recommend their exclusion. Among these was the fact that the notice did not require a statement of the rent, i.e. royalty, in the case of a mineral lease, and there was no obligation on the part of the lessor (or lessee) to confirm to anyone the terms of the lease that were not included in the notice. Accordingly third persons had no practical way of determining such things as the extent and nature of the royalty, and limitations upon assignment or transfers of the lease or subleases if any of the parties were unwilling to confirm them for the benefit of the other parties. The act required that the "notice shall contain . . . the term of the lease." A large part of the ordinary oil and gas lease is devoted to its term and the maintenance and extensions thereof. However, most "notices" the writer has seen, simply summarized those provisions using expressions such as "the term is for ten years and as long as oil and gas is produced or the lease is otherwise maintained according to its terms." Whether such summaries were adequate would seem to be debatable, as was 18 . R.S. 9:2092 19 For example, R.S. 9:1822 provides that an inter vivos trust is created upon execution of the 9 the effect of an inadequate notice. Finally, the provisions of the Act were deemed inappropriate for interests such as mineral leases that may continue for decades and become divided and owned by numerous persons, involving activities that may be virtually unrelated to the owner of the land or some portion of it.
Summary Without going into the matter unduly, it should be noted that, with the limited exception, mentioned with respect to leases, none of the provisions referred to define what effect amendments or modifications made after recordation of the various agreements might have, particularly as to those matters that do not have to be contained in the notice or extract. Unlike similar provisions in other states where recordation is a matter of "notice" and a "diligent investigation" will usually protect the third person against unrecorded claims, there is no reason to believe that the contracts and agreements represented by the "extracts" are not absolutely binding in their entirety upon third persons no matter how difficult they may be to confirm. Neither as mentioned, do any of them require a party to disclose or confirm to another party or a third person what those terms currently are. If one is going to use such devices the writer would suggest it might behoove him to make provision for such disclosure or affirmation upon request by one party to the others.
Section 6. What Does Not Have To Be Recorded Act 169 expressly declares that a number of matters are effective without recordation. Some of these limitations are also discussed in Part Two. In general terms the revision expressly or implicitly recognizes the following cannot be determined from the records. A. Matters of capacity. -- This includes such matters as the existence of B. Matters of authority. This is closely related to the matters mentioned in the C. The occurrence of a suspensive or a resolutory condition D. The exercise of an option or right of first refusal, E. A tacit acceptance, F. Any other termination of rights that results from occurrences or conditions not It is customary to record instruments evidencing many of the above, especially resolutions, powers of attorney, and similar grants of authority to persons acting for another. However such recordation gives no greater effect to them or to the instrument, with respect to which they refer, except perhaps, to the extent in a proper case of giving rise to a plea of estoppel against the person recording or authorizing them to be recorded if he attempts to deny their efficacy. 10 Other matters that are not recorded but may affect title or recorded rights to an immovable are also generally outside of the purview of the Act. In general terms they include following. Legal rights in or over an immovable that are not dependent upon "an instrument" for their efficacy, such as the following. 1. Rights arising from possession or prescription. 2. Privileges expressly made effective without recordation
3. Transfers that occur or rights that are acquired by operation of law such as those resulting from inheritance, marriage, adoption, etc. 4. Legal and apparent servitudes 5. Zoning, environmental limitations on use, and similar matters. B. Bankruptcy and other matters regulated by federal law (unless the federal act C. Transfers that are made by or are subject to, legislative grants, patents, or
Section 7. Form Of Recorded Instruments General Principles The Act provides minimal formal requirements for recordation of an instrument. However in considering the matter, as mentioned previously, one must distinguish the formal requirements for recordation, from those necessary for the intrinsic validity of an instrument itself. For example, recordation of a donation not in authentic form is permitted, but it imparts no greater efficacy to the instrument than the law prescribes. The recorder is directed by C. C. Art. 3344 to refuse to record instruments that do not contain the "original signature" of a party.20 This also must be read in light of C. C. Art. 3345 discussed below, making the recordation of a "duplicate" valid if the recorder inadvertently accepts the same. There are also a number of other particular exceptions that are provided elsewhere in the law. The principal of these are the following. A. Judgments, decrees or acts of a governmental agency must be properly B. Certified copies of documents recorded in a parish may be recorded in another 20 C.C. 3344: The term "party" perhaps creates too restrictive an inference. It might have been 21 C. C. Art. 3344 11 Signatures to an instrument are not required to be acknowledged or authenticated, for recordation. However, without such authenticity, the instrument cannot be introduced in evidence without some extrinsic proof of the signatures to it.23 This does not work a material change the law. Although the law formerly required acts to be authenticated, their recordation without authentication was held to be valid.24 The "ancient documents" statute is amended to reduce the time to ten years after which signatures on recorded documents are presumed to be both valid and properly authorized.25 C.C. 3345 attempts to deal with the problem of photo copies or other instruments as to which, pragmatically, it may be impossible to determine whether the signature (and thus the instrument) is an original. Although copies are not to be recorded since do not bear an "original signature" if a document that conforms to the provisions of Art. 1001(5) of the Evidence Code as a "duplicate26" is accepted by the recorder for recordation then: A. It is to be given the same effect as would recordation of the original B. However, its recordation "does not dispense with proving" that it is in fact a C. Any one can bring an action to have it so confirmed or declared invalid and D. The burden of proof is upon the person asserting its validity Such an instrument thus cannot be relied upon or ignored with assurance until the matter of its authenticity is determined by consent of the parties, or a mandamus or appropriate action. C. C. Art. 3352 provides that each instrument presented for recordation "shall contain" the following information "when appropriate for its type and nature." A. The full name, domicile and permanent mailing address of the parties B. The marital status of individuals including 1. The full name of the spouse, or declaration that the party is not married 2. A declaration by any transferor of an immovable or interest in it, whether there has been a change in such status since its acquisition and if so, when and how it occurred. C. The municipal number or postal address of the property, if it has one. 22 R.S. 44:1111. 23 C. C. Art 3344 B "Recordation does not dispense with the necessity of proving that 24 See, e.g. Stallcup v. Pryon, 33 La. Ann. 1249 (1881) 25 "An instrument that has been recorded for at least ten years is presumed to have been signed 26 Evidence Code Art 1001(5): "Duplicate. A duplicate is a counterpart produced by the same 12 D. The last four digits of the social security number or taxpayer ID number of a E. The notary's I.D. or bar number (if the instrument is executed in Louisiana) The article also expressly declares that the failure to include any of the matters it mentions does not impair the validity of the instrument or the effect given to its recordation. Neither may the recorder refuse to accept a document because it does not include the information so required. Effect Of Erroneous Instruments C. C. Art. 3355 provides, in substance, that a recorded instrument is ineffective as to third persons if the name of a party is so indefinite, incomplete or erroneous as to be misleading, and the instrument as a whole does not reasonably alert a person examining the records that the instrument may be that of the party.27. This is the same test that has generally been adopted by the courts for the validity of descriptions.28 The distinction between a "misleading" instruments and an "indefinite" one is important. If, for example, the name of a party is "Robert J. Walker" an instrument in the name of "John Walker" probably cannot be said to be either misleading or so indefinite as to be invalid. The same may perhaps be said of "Bob" Walker, and R. J. Walker. On the other hand "Robert Jerald Welker" would hardly alert a person that Robert Walker was intended. It should be noted also that the provision contains a two-pronged test of validity: (1) the name must not be "misleading" and (2) the instrument as a whole must reasonably alert the reader that the instrument may be that of the party. Thus in the cases mentioned above if each of the instruments convey or directly affect the property of the Walker under investigation a greater variation in the name may be acceptable, than would be the case if the instruments were, for example, judicial mortgages that do not refer to any particular property. Mention should also be made of the fact that the description of property in a recorded instrument that is required to identify the property it affects must not only be sufficient to constitute a valid instrument but it must fairly apprise third persons of what property is intended. For example, sales of property described simply as "all lands owned" by vendor in the state or in a particular parish have been held to be insufficient to affect third persons.29 27 C. C. Art. 3355. The article is expressed negatively, i.e. "an instrument is not ineffective if it 28 See for example, Quatre Parish Company v. Beauregard Parish School Bd, 57 So.2d 197 (La. 29 . See for example Daigle v Calcasieu National Bank in Lake Charles, 9 So. 2d 394 (La. 1942); 13 Place of Recordation And Effect C. C. Art. 3346 provides that A. An instrument creating, establishing, or relating to a mortgage or privilege B. All other instruments are recorded in the conveyance records of that parish, C. C. Art. 3341 provides that such recordation is only effective with respect to immovables located in the parish where the instrument is recorded. The Code also provides that recordation of an instrument 1. Creates no presumption that it is valid or genuine 2. Creates no presumption as to the capacity or status of the parties, and 3. Has no effect unless the law expressly provides for its recordation. As previously mentioned, it may be said that the effect recordation operates somewhat negatively. An instrument is not effective as to third persons unless it is recorded, but generally speaking that recordation gives it no greater effect that it intrinsically has. Article 3342 does make one rather substantial modification to these principles in that it declares that a party to a recorded instrument may not contradict "its terms or statements of fact it contains" to the prejudice of a third person who, after its recordation acquires an interest in or over the immovable to which the instrument relates. This operates as a form of estoppel and ordinarily would, for example, preclude an attack by the seller in an act of sale against a third person acquiring an interest in or over the immovable from the purchaser on the grounds that the consideration recited was not actually paid (if its receipt is acknowledged); or that the transaction was a donation in disguise or simulation.30 A distinction must be drawn between the "terms" of an instrument or "statements of fact" it contains from conclusions or expressions of opinion. Thus a recital that "$10,000 has been paid and received" by a seller could not be contradicted by the parties. However a statement that the consideration paid was "good and valuable" is neither a "term" of the act nor a statement of fact. C. C. Art. 2035 was amended to protect third persons acquiring an interest in property and generally precludes setting aside a transfer or other interest on the grounds that it is a relative nullity - unless perhaps, the grounds for the nullity are apparent on the face of the instrument. This carries forward the general rule that relative nullities are not enforceable against a third person who acquires an interest in or over land by a contract referred to or indicated in the act. See e.g. Jenkins Contractors. Inc. v. Farriel, 261 La. 374 (La. 1972) 30 See also C. C. Art. 3027 providing that: "Until filed for recordation, a revocation or modification of a recorded mandate is ineffective as to the persons entitled to rely upon the public records." 14 "in good faith," but perhaps eliminates any subjective element with respect to third persons acquiring rights in the property. The Act is silent however, as to the extent to which a third person, not a party to the act containing a relative nullity, but having some interest in doing so, may attack its provisions. The whole subject matter is regulated by the law of obligations rather than registry, with the one exception mentioned above.
Section 8. When Recordation Is Effective General Provisions The code provides that the recorder shall maintain in the manner prescribed by law all instruments that are "recorded" with him31 and that to affect third persons the instruments must be "registered" by "recording them" in the proper records.32 This dichotomy of terminology was adopted because of the propensity of the legislature from time to time to imply or state that the effectiveness of instruments resulted from their being "registered", "recorded" or "filed" in the records and some the ambiguity as to when an instrument was actually "filed." Consequently to eliminate, as far as possible, any such difficulties and ambiguities as to when an instrument becomes effectively recorded or registered, Act 169 adopts the following hierarchy of terminology. A. Registry of an instrument occurs when it "recorded." B. The "effect of recordation" arises when the instrument is "filed with the 1. This continues the rule that erroneous indexing, or even the complete failure to enter the instrument into the books (or now the computer records) of the recorder has no effect upon the validity of the recordation. If liability exists on the part of the recorder in such cases, it is to the person relying upon the records, not the person who has properly filed his instrument.34 2. The policy reflected by the preceding paragraph is based upon the assumption that persons searching the records are likely to be aware, at least in general terms, of what documents they expect to find, whereas the person filing has no reason in particular to verify it has been properly handled by the recorder.35 The contrary rule would permit persons who are aware a document has been filed to ignore their failure to find it in the indexes, or even to contend it is of no effect as to them even if they have found it was erroneously indexed or otherwise recorded C. Finally, filing occurs when the instrument is "accepted for recordation" by the 31 C. C. Art. 3346 32 C. C. Art. 3338 33 C. C. Art. 3347. 34 R.S. 13:750, 750.1 35 Good practice of course, would dictate that the attorney recording a document should later 15 establish its recordation until the clerk takes it to where he maintains his office as recorder of mortgages and there files it.36 Similarly, filing an instrument for recordation in the conveyance records has no effect as to a mortgage or vendor's privilege it may contain, even if the recorder maintains both offices and records in the same room. In the last analysis it is the responsibility of the person making the filing to designate in what records he is depositing it. Act 169 does not further define what constitutes "acceptance" of the instrument for filing by the recorder and thus implies that each recorder will establish his own procedures for receiving, inspecting and deciding when and whether the instrument is appropriate to be filed. Mere receipt of the document is insufficient absent some further evidence it was accepted, since the recorder is entitled to inspect it to see if it is in proper form and also to receive his fees for his services, if he so desires. The Act does provide that "upon acceptance" the recorder shall "immediately write upon or stamp the instrument with the date and time it is filed and a registry number assigned to it. Such action therefore will ordinarily establish both the fact and the time of filing and consequently, of recordation. The operation of "branch" or "satellite" offices by recorders, may give rise to difficulties in determining priority between instruments separately filed in each unless the recorder is careful to establish a uniform and consistent procedure for determining the order in which he "accepts" instruments. Presumptions As To Time Of Filing. The Code establishes the following presumptions if an instrument is not endorsed with a date and time of filing, or if it bears a date and time identical to another instrument.37 A. First it is presumed documents were filed in the order of their registry B. If the date and time of filing cannot otherwise be determined, it is presumed C. These of course, presuppose proof that the instrument has been both received
Section 9. Release Of Extinguished Rights Recognizing the problems that are presented to a title examiner when confronted with leases, contracts to sell, options and other instruments whose continuation or termination is dependent upon the occurrence of conditions that are not matters of record, the Act now permits an owner of an immovable to demand a release, in proper form, acknowledging the extinction of certain rights evidenced in the conveyance records, from those persons who may apparently be vested with them, if the rights have in fact terminated as a result of the occurrence, or non-occurrence of the conditions. If the person fails to supply the release within 30 days after a written demand, the owner may 36 C. C. Arts. 3349, 3350 37 As used, the term "presumption" is such as to indicate that is a rebuttable one. 16 bring a mandamus action discussed in the next Section, to obtain a decree that the rights are extinguished and may also recover reasonable attorneys fees as well as his costs.38 The demand may be made to the following: A. Lessees, usufructuaries, and owners of predial and personal servitudes whose B. Persons holding options, rights of first refusal or other contractual or legal The Section excludes petitory and possessory actions as well as mineral rights from its provisions.39
Section 10 - The Mandamus Action Against The Recorder To Correct O r Modify The Records . The mandamus action brought against the recorder has long been available to secure cancellation of mortgages, when the evidence otherwise necessary to do so is unavailable or lost. The right to resort to the action, which is a summary one, has been expanded to permit it to be brought to accomplish the following actions.40 A. To compel the recordation of any instrument or document authorized or B. To compel the cancellation from the records of any instrument or document C. To cancel from the records any improperly recorded instrument or document. D. To declare, pursuant to R.S. 44:112, the extinction of rights. E. To correct any error or omission in the records. F. To issue any certificate or perform any other duty required of the recorder by G. Take any action that is otherwise expressly authorized by the provisions of All persons whose rights are directly affected by the action must be joined. The recorder is not responsible for costs or attorney's fees, but presumably, anyone else who 38 R.S. 44:112 39 It should be noted that M.C. Arts 206 - 208 give essentially the same rights to owners as 40 R.S. 44:121. 17 is joined and opposes the action may be held for, or recover his costs, depending upon the results.
Section 11. Provisions Relating To The Inscription Of Mortgages General Observations The Act amends and reenacts C. C. Arts. 3354 to 3368 generally applicable to the mortgage records. A substantial number of provisions relating to mortgages, particularly those regulating the giving of mortgage certificates and the procedures for cancellation are found in Sections 113 - 118 of Title 44 and are discussed hereafter. The other provisions relating to the inscription of mortgages are largely the same as those prevailing before their amendment. For the most part they were simply moved verbatim from the title on mortgages to that of registry, and only mentioned here in passing and then only to the extent of a few changes. The foundation upon which all of the provisions relating to cancellation of mortgages rest is based upon two related principles. First, that the mortgage is an accessory of the debt it secures and can only be enforced to satisfy that obligation.41. Second, the transfer or assignment of the secured obligation carries with it a transfer of the mortgage.42 As a consequence of these, no assignment of a mortgage is necessary to transfer it, nor for that matter, can it be assigned or transferred independently of the obligation. In a word, with one exception, they are inseparable. The mortgage may be released or extinguished, but a release or extinction of the obligation, extinguishes the mortgage. The negotiation of a bearer note secured by a mortgage operates to fully vest the rights of the mortgage in its holder, without necessity of a written assignment or any other evidence.43 "Assignments" of the obligation and the mortgage are not prohibited, but they ordinarily are not a "recorded" matter. Another related principle is that a release or cancellation of a mortgage that is given by a person who is not in fact the mortgagee (i.e. the obligee of the secured obligation) is of no effect. A judgment rendered in a mandamus or other action decreeing the extinction or cancellation of a mortgage is an absolute nullity, if in fact the defendant is not the actual obligee of the secured obligation.44 These factors have caused the creation of reliable procedures for canceling mortgages to be among the most intractable of problems in establishing rules regulating the public records. 41 As mentioned herein the term "mortgage" in the conventional sense, includes the vendor's 42 "Mortgage is accessory to the obligation that it secures. Consequently, except as provided 43 "A transfer of an obligation secured by a mortgage includes the transfer of the mortgage." C. 44 The theory is that the mortgagee is, at any given moment, the owner or obligee of the 18 Some Other Particular Provisions Copies of an instrument recorded in one parish that are certified by the recorder may be recorded in any other parish with the same effect as would the recordation of the original.45 Mortgages and privileges of property located in several parishes are expressly permitted to be executed in counterparts that describe only the property in a particular parish.46 It might be noted that this principle is not made applicable to the conveyance records. Separate mortgages, securing the same obligation for all practical purposes, give the same rights as a single mortgage. On the other hand, recording only a counterpart or certified copy of a sale that describes only the lands in the parish where it is recorded might not accomplish the same thing. For example when a sale with a reservation of minerals encompasses a single, contiguous tract in several parishes, one can question whether the failure of a counterpart or certified copy recorded in a parish to describe the contiguous lands it may cover in another parish would permit a third person acquiring lands in the parish of recordation to claim he was not bound to recognize an interruption occurring on the lands in the other parish. The instrument recorded in the parish in which he acquired the lands does not disclose that the servitude covers lands in the other parish and the instrument recorded in the other parish has no effect outside of that parish. The question has not, to the writer's knowledge been raised, and although it is perhaps somewhat esoteric as presented, the question may arise in other contexts as well. The Act continues, and perhaps clarifies, the standing of assignees and transferees of the mortgages and privileges in the following respects.47 A. A transferee of an obligation secured by a mortgage is not bound by any B. A recorded amendment, transfer, release or other modification to a mortgage C. The "obligee of record" is the person identified by the mortgage records as the These provisions may be deemed to modify, and are at least inconsistent with the rule previously mentioned that a mere assignment of the principal obligation secured by the mortgage carries with it a transfer of the mortgage, and may be viewed as a limited exception to the principles mentioned previously. They represent a compromise of the conflicting desires to have free transferability of the obligations and some method of dealing with the modification and cancellation of the mortgage discussed hereafter. 45 C. C. Art. 3355 46 C. C. Art.3355. 47 C. C. Art. 3356 19 The Effective Period Of Inscription. The "inscription" or recordation of mortgages and privileges is effective only for a limited time.48 The rules pertaining to this and the mode of continuing their effect by reinscription are largely unchanged. As it now stands the effect of recordation ceases as follows. A. Generally, in the absence of special provisions regulating the particular B. The effect recordation of a judicial mortgage also ceases ten years after the C. The effect of a mortgage or vendor's privilege ceases in ten years after the D. If an instrument amending a mortgage or privilege is filed before the effect of Special rules exist in C. C. Arts. 3360 and 3361 relative to the effect of inscription of special and legal mortgages given by tutors, curators of interdicts and absentees, and succession representatives. The Right To Reinscribe. The procedure for reinscribing a mortgage or privilege is retained and regulated as follows. A. A person may reinscribe a mortgage or vendor's privilege by simply filing a "notice of reinscription" that states the name of the mortgagor or obligor of the debt secured by the privilege as it appears in the recorded instrument, and giving the instrument, or registry number or other appropriate recordation information as to mortgage or privilege or of a previous notice of reinscription. B. Such a reinscription has the following effect. 1. If recorded before the effect of inscription ceases, it continues the effect for ten years from the date it is recorded. 48 The term "inscription" is carried over from an earlier day, and is synonymous with term 49 C. C. Art. 3328 50 C. C. Art. 3330 51 C. C. Art. 3329 52 C. C. Art. 3332 20 2. If it is recorded after the effect of inscription has ceased, and even after it may have been "cancelled" from the records it produces the effect of inscription of the mortgage or privilege, but only from the date the notice is recorded - as if that were the first time the mortgage or privilege was recorded. Although the Article is not specific, it is implicit in such a case, that the previous cancellation resulted from the failure to reinscribe, rather than payment, or other discharge of the obligation. In the latter case, the evidence that gave rise to the initial cancellation proving that the obligation secured by the mortgage or privilege has been paid or that the mortgage or privilege was otherwise extinguished, ordinarily would prevent a reinscription from having any juridical effect. These fundamentally continue the provisions of Arts. 3334 and 3335 of the Civil Code. A recent case by the First Circuit53, suggests that even after the period of inscription expires, the instrument may still have effect, the cessation of effect "not being self operative" in the words of the court. In the writer's opinion this is completely erroneous and contrary to the provisions of present C. C.Arts. 3364 and 3365, the latter expressly providing that if a notice of reinscription is filed after the effect of recordation ceases, it produces the effects of recordation, "but only from the time" the notice is filed. This is a verbatim expression of former C. C. Art. 3335. in effect when Casey was decided. The court in that case appears to have been concerned that the sheriff who was charged with distributing funds from a judicial sale, could not tell from the mortgage certificate given to him by the recorder that the mortgage, which had not been cancelled and was shown on the certificate, was ineffective. The law clearly provides that the "effect of the inscription" ceases upon the relevant date and that even a stranger can ask that it be formally cancelled from the records - as no longer having any effect. It should perhaps be noted, as will be discussed in the next Section that "cancellation" of a mortgage from the records in one sense is not equivalent to its extinction, and in every case is only evidence of record, of what has already transpired "off the record." If the "effect of inscription" or recordation has expired, "cancellation" of the inscription is no different, in principle than if the obligation securing a mortgage has become extinguished and the inscription is later "cancelled." A contrary rule would again confuse the "effect" of inscription with the effect of the instrument. One can never tell from the records whether a mortgage or privilege is valid, and if so the amount it may secure.
Section 12. Cancellation Of The Inscription Of Mortgages And Privileges. General Observations The most significant changes wrought by the recent revision are perhaps found in those relating to cancellation of mortgages and privileges. Civil Code Art. 3366 requires the recorder to cancel, in whole or in part, the recordation of a mortgage or privilege upon the receipt of a written request "in a form prescribed by law" and that: A. Identifies the mortgage or privilege by reference to the place in the record where it is recorded and 53Casey v. National Information Services Inc. 906 S0.2d 510 (La. App. 1st 2005) 21 B. Is signed by the person requesting the cancellation. The Act thus basically contemplates that in every case, the recorder will have a record - in the form of a written request - by the person who requests the cancellation of the inscription of the mortgage, even if he is not the person executing the instruments supporting the request. In the most cases the "request" can be incorporated into the other instruments necessary to support or evidence the cancellation. The requirements for the forms necessary to cancel the inscription of mortgages and privileges generally are found in C.C. 3367 and 3368 and in Title 44:114 - 118. These essentially divide the method for cancellation into the following categories, most of which are consistent with present practice. A. Where the period for reinscription has expired. B. Where a mortgage or vendor's privilege secures a paraphed obligation C. Where the mortgage or privilege does not secure a paraphed obligation. D. Where the cancellation is requested pursuant to the certificate of a sheriff, E. Where the cancellation is requested by a "Licensed Financial Institution". F. Finally several of the provisions of the revised statutes dealing primarily with When The Period For Reinscription Has Expired A simple written request is all that is needed for a cancellation where the instrument shows on its face that the period of inscription has expired. Art. 3368 provides that, in the case of judicial mortgages, the recorder shall also cancel the inscription of a judicial mortgage when the request is accompanied by a certificate from the clerk of the court rendering the judgment stating that no suit or motion has been timely filed for its revival or a certified copy of a judgment rejecting the demands in such a suit is attached. The "revival" of a judgment in such a manner is the only method by which its prescription can be avoided and the failure to obtain it is conclusive evidence that the obligation secured by the mortgage is extinguished. Mortgages Or Privileges Securing Paraphed Obligations. The request for cancellation shall have attached to it, either: A. The paraphed obligation marked "paid" or "cancelled" or 54It should perhaps also be noted that there is no indication that the reference in Article 3364 to cancellations being made "in the form prescribed by law" is limited to or makes those provisions found in the revision exclusive. There are other specialized applications of mortgages and privileges, in particular, that have not been amended or repealed and must be consulted in dealing with them. See for example: R.S. 9:4436.1 and .2 cancellation of judicial mortgages pending appeal; R.S 9:5557, release of "future advance" mortgages; R.S. 9:323-324, spousal and child support judgments; R.S.30:2225, abandoned waste sites; R.S. 19:136.9, "blighted property" in Orleans Parish, and R.S. 47:337.66 relating to state tax "liens, privileges, and mortgages." 22 B. An authentic act of release identifying the obligation, by one who declares he is both owner and holder of the obligation, directing the recorder to cancel the encumbrance in whole or in part and a declaration by the notary that he paraphed the obligation with the act.55 This continues the procedures that have prevailed since the earliest times. The Section also continues the substance of the provision recently adopted to prevent the mortgagor from having to leave the obligation with the recorder. The Section provides that when the obligation is attached to the request, the recorder may make a duplicate of it, attach it to the request (noting that it is a duplicate) paraph the obligation presented for identification with the act of release or cancellation and return the obligation to the person making the request.56 Mortgages Securing Obligations That Are Not Paraphed. Mortgages securing obligations that are not paraphed for identification may be cancelled if there is attached to the request an authentic or authenticated form signed by the obligee of record of the mortgage, acknowledging satisfaction or extinction of the obligation, releasing or acknowledging extinction of the mortgage or directing the recorder to cancel the same.57 If the obligee of record is an assignee, the name of the original mortgagor or privilege holder and location in the records of the mortgage or privilege must also be given. Cancellation By A Licensed Financial Institutions. The revision does adopt a new and more liberal method of cancellation, recognizing, perhaps, the realities of modern financing practices. A request for cancellation of a mortgage, no matter how the mortgage was confected, may have attached to it (or it may be incorporated into the request) an authentic or authenticated act declaring that the institution requesting the same is, or at the time the obligation was extinguished, was the obligee of the obligation secured by the mortgage and that the obligation has either been extinguished or that the institution releases the mortgage and directs its cancellation.58 The act of cancellation or release must also identify the institution as being one licensed or regulated by the Louisiana Office of Financial Institutions or that it is another entity conducting a similar business that is licensed or regulated by another state or the United States. Cancellation Of Judicial Mortgages And Of The Effect Of Bankruptcy. The Act adopts and slightly modifies the provisions of R.S. 9:5166 providing for the cancellation of judicial mortgages where the obligation has been discharged in bankruptcy, or where the effect of the mortgage is limited to the property of the debtor at the time of bankruptcy.59 55 R.S. 44:115 56 R.S. 44: 115 57 R.S. 44:114 58 R.S. 44:117 59 R.S. 44:118 23 Penalties For False Or Incorrect Requests. R.S. 44:117 states that any person requesting the recorder to cancel a mortgage or privilege by means of a false or incorrect statement is liable to and he must indemnify the recorder and any person relying on the cancellation for any losses they may suffer. Anyone who knowingly provides materially false or incorrect statements to secure such a cancellation is also guilty of the crime of false swearing. Section 78 of the title, previously referred to should also be here noted, in that it relieves the recorder of any liability for "releasing or canceling an encumbrance pursuant to a request filed in accordance with this Chapter." Although recordation does not create a presumption that an instrument is valid or genuine60 it is clear that the recorder is entitled to rely upon instruments filed with him as being genuine and what they purport to be. Certain Unrepealed Provisions Relating To Cancellation As previously mentioned, the revision did not repeal, and left in place several provisions of Title 9 of the revised statutes relating to the cancellation of mortgages that primarily relate to residential and similar loans. In the writer's opinion, most of the situations envisioned by these can be more easily dealt with by the provisions relating to cancellation by the release of a licensed financial institution. Among those retained are the following. R.S. 9:5167. This provides for the cancellation of a mortgage when the note securing it has been lost or destroyed by a notary, who after receiving it satisfied the obligation out of the proceeds of an act of sale or mortgage executed before him. R.S. 9:6167 (E). This provides that if a mortgagee does not "deliver acceptable documentation . . . for cancellation" of a mortgage within sixty days after receipt of payment pursuant to a "pay off" statement furnished by it or its agent an authorized officer of a title insurance company, or a notary, "for the person or entity which made the payment may cancel the mortgage by an affidavit setting forth the requisite facts. Section 5167.2. then provides that provides that a "mortgage servicing agent" or any holder of "the note" shall deliver a "payoff" statement of the amount due under the mortgage. The section applies only to residential mortgages granted by a consumer on one-to four family residential immovable property. Neither does it apply to "collateral mortgages" or mortgages "to secure future advances" as defined by C.C. Art. 3298. Finally, although the entire subject is technically beyond the scope of this paper, but for completeness, perhaps there should be mentioned: Section 5395 requiring mortgagees, servicing agents, and holder of the note, securing a mortgage to provide the note or a release within 30 or 60 days, depending upon the circumstances, and penalties for not doing so, and Section 5163 which requires notice to be delivered to any agency or instrumentality of the United States lending money on mortgages secured by real 60 C. C. Art. 3341 24 estate, in the event of any succession, liquidation, insolvency receivership or partition proceeding unless notice is given to the agency. Certificates Of Encumbrance. The Act continues authorization for the recorder of mortgages to issue "certificates of encumbrance" (commonly called mortgage certificates) containing a list of all uncanceled mortgages, or instruments evidencing a privilege in the order of their recordation that identify the persons designated in the request.61 It makes no provision for "certificates of conveyance" issued by some recorders, although there would appear to be nothing to prevent them from doing so. It expressly contains the following regulations and limitations most of which continue existing law. A. The recorder is not liable for listing persons who "reasonably may be B. He is liable in his official capacity for any loss caused by a failure to list an C. The provision appears to make the issuance of the certificate mandatory, by
Section 13 --The Office of Recorder Recorders And Recordation - Title 44. The Act consolidates a number of the provisions formerly found in two chapters of Title 44 of the Revised Statutes relating to the division between Orleans and other parishes, although it still keeps most of the substantive differences intact. A. It preserves the Orleans distinction between the Office of Recorder of B. The clerks of the other district courts are, as required by the Constitution, C. R.S. 44:73 continues the provision that the offices of the recorders shall be 62 As mentioned footnote 1 the Act as here described and the rest of this outline do not take into account the effect of Act 621 of 2006 moving all of the functions of the recorder of mortgages, register of conveyances and office of the custodian of notarial archives in Orleans Parish to the clerk of court of the parish on July 1, 2009. 25 maintained. The section extends to recorders generally the authority previously given to certain parishes to establish branch or ancillary offices in which they may "accept documents and provide such other services as the recorders find useful." Liability Of Recorders, Bonds And Insurance. The Act eliminates any vestiges of, or references to, a requirement for a surety bond for the recorder or his employees. In lieu thereof the Act continues the authorization for each recorder "to keep in effect insurance insuring the recorder, his deputies and employees against liability arising out of his failure to perform properly the duties and obligations of his office."63 The Act expressly adopts and extends to all recorders the provisions of R.S. 13:750 and 750.1 regulating the liability of clerks in "their various capacities," and removes any doubt that they are applicable to the Orleans Parish Recorders. The courts have distinguished the liability of recorders, sheriffs and similar "officers" who do not appear to fill a constitutionally established body, such as a city council or parish police jury, between those circumstances when he is acting in his "official" and "personal" capacities. In the former, the liability attaches to the officer who from time to time occupies the position and is satisfiable only out of the public funds of the "office." The revision continues this. The revision together with R.S. 13:750 and 750.1 expressly relieves the recorder (and his employees) from both personal and "official" liability in the following cases64. A. For improperly filing, failing or refusing to file, erroneously issuing or failing to issue or canceling any instrument from the records of his office or in taking any other action with respect to his records, their indexes or other performance of his duties in the following respects. 1. When he has been directed to take the action by order of any court of the state or United States or by any sheriff, marshal, or other officer pursuant to execution of a writ issued by such a court or when an officer is otherwise acting or purporting to act in his official capacity. 2. When he cancels an instrument from his records or takes any other action with respect to it in response to a request to do so and he is presented with the evidence or documents prescribed by law authorizing the action, whether or not such requests or records are genuine or what they purport to be. 3. When he is complying with a judgment or court order. 4. When he records a document that is not authorized by law to be 63 R.S. 44:77 C 64 These are all found in R.S. 44:78 65 R.S. 44:78 26 5 When he releases or cancels an encumbrance pursuant to a request filed in accordance with the provisions of Chapter 2 of Title 44 which includes the cancellation provisions for mortgages. The Act expressly relieves the recorder from advancing or paying costs of court, fees of sheriffs and other officers or any other charge in any suit instituted by or against him in his official capacity. Neither is the recorder required to provide security whether for appeal or otherwise as a consequence of such a proceeding.66 PART TWO: Some Things The Records Do Not Disclose. Section 1. Possession And Acquisitive Prescription. Of all "off the record" rights that may cause problems the most important are those arising from possession and acquisitive prescription. Nearly every land title in Louisiana is based upon them - not so much because the titles are bad, but because errors and omissions in the chain of title for such things as recital of marital status, failure to open successions, errors in description, and just complete "gaps" become impossible to verify or cure because of the passage to time. In rural property particularly, the inability or failure to accurately locate boundaries frequently results in possession by parties beyond their title. While it is not the purpose of this outline to present a complete dissertation on how to examine a title in Louisiana, insofar as the basis for such an examination is based on the records the following should be mentioned about the relationship of prescription and possession to them. Acquisitive prescription is either based upon possession in good faith, with a "just title" for ten years67 or by possession for thirty years "without the need of just title or possession in good faith."68. The requirement that the good faith possessor have a "just title" - i.e. one that if valid would have transferred the ownership - now also requires that it must recorded in the conveyance records of the parish where the property is located.69 Good faith is presumed and is critical only at the time possession is acquired. Subsequent doubts or knowledge of possible defects do not affect the possessor's rights. The requirement for recordation of the just title is, in one sense, a somewhat illusory protection for the examiner if the possessor is otherwise a stranger to the chain of title, so that his act will not be discovered by an examination of the indices.70 At the same time, that requirement, coupled with the fact that the rights of possession are transferred with a transfer of the title, permits one to reasonably approve the title if there is a regular chain 66 R.S. 44:79 67 C. C. Art. 3475 et seq. 68 C. C. Art. 3486 69 C. C. Art. 3483 70 An excellent although a little outdated summary of the Louisiana provisions relating to the 27 and there has been possession for a sufficient period in light of the totality of the circumstances. Coupled with the problem of acquisitive prescription and possession are the provisions of Civil Code Articles relative to boundaries. C. C. Art. 794 of which which provides that: If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. The approval of ownership by virtue of acquisitive prescription is based upon a series of presumptions and rules related to the extent of the possession exercised by a party and its transfer. Perhaps the most dangerous of these for the examiner are the provisions of C. C. Art. 3426 that if one possesses "a part of an immovable by virtue of a title" he is deemed to be in possession, constructively, within the limits of his title. Furthermore, although "actual possession" of at least part of the premises is required to commence the rights of possession, once obtained, it is presumed to continue and be transferred with a transfer of the property unless and until it is superseded by the possession of another. Where there are visibly unmarked, but overlapping boundaries, the priority of possession and the acquisition of ownership can present difficult and complex problems. Accordingly, unless one is willing to assume that there are no unknown or overlapping conflicts in recorded titles to the property under examination, and that there has been adequate and uncontested possession within the boundaries of the title by the persons in the chain of title for at least ten, and in most cases for thirty years or more, it is impossible to be reasonably certain of its ownership, even if the recorded chain of title is otherwise regular. Adequate possession is routinely assumed, in the case of residential and most commercial titles in established subdivisions, and perhaps even in rural areas that have been well occupied and farmed.71 For reasons that can only be touched upon here and as the other papers in this course will demonstrate, the examination of titles for oil and gas development or ownership has always required a much more exhaustive examination and one that minimally should include a complete history both of the recorded title and of the possession of the property for as long a period as they can reasonably be obtained. 71 The Louisiana Bar Association Uniform Title Standards Committee has published the "Louisiana Uniform Title Standards" (2001) attempting to establish a series of rules and standards that represent "a consensus of what is required of a reasonable and prudent examining attorney." At the same time it notes that the standards "recognize that a title may be imperfect for reasons which would never be reflected by any abstract" mentioning such matters as adverse possession, lack of capacity of a grantor, forgery, or indexing error. It also observes that "one never escapes all of the risks." Finally it notes that the standards are applicable to "all interests in immovable property to the extent their application is compatible with the nature of such interests" except that they are not applicable "to the alienation or encumbrance of mineral rights" -- that is, presumably, to the examination of title in connection with such alienation or encumbrance. The writer would only note that the examination of a title to approve ownership or interests in mineral rights theoretically would require the same examination that would be required were the owner to mortgage or sell it free of, or including the mineral rights. The differences in the two are based upon economic and pragmatic considerations, not the law. 28 Section 2. Other Legal Charges Not Evident From The Records. A. In General As is suggested by the preceding Section, the law implicitly assumes that third persons who are interested in determining the ownership of immovables will not only examine the conveyance and mortgage records but will and make a visual inspection of the premises themselves. For that reason there are a number of rights that may be owned by others that can only be determined in that manner. Among the most important of these, excluding rights that may arise from the adverse possession of the premises, are the following. B. Privileges. In general, privileges (liens) do not exist over an immovable unless some evidence of them is recorded. There are, however, at least two important exceptions of which the examiner must be aware. 1. Work done to construct, repair or improve an immovable and the materials supplied for such purposes by the owner, or a contractor, subcontractor, or supplier to them and services rendered by laborers may give rise to a privilege that essentially can be unrecorded during the work and for some 60 days thereafter.72 2. A somewhat similar privilege is given over the property of mineral lessees for work, material and services supplied in connection with the drilling, producing, reworking or other activities on a well.73 It can exist, as a practical matter almost indefinitely without recordation. It should also be noted that the Oil Well Lien act referred to in paragraph 2 above, does not preclude application of the "Private Works Act" mentioned in paragraph 1 when the work is such that it falls outside of the terms of the former but is covered by the latter74. C. Lands Acquired From Public Agencies. Mineral Code Art. 149 gives a "right of first refusal" to persons whose land has been acquired by a public body or other agency described therein in a transaction in which the minerals were reserved,75 when that body desires to sell or otherwise dispose of the land to a private owner or someone "other than an acquiring authority" -- i.e. persons whose acquisitions are not subject to the act. An even more pervasive provision is found in R.S. 41:1338 which, with three minor exceptions, provides that when any property (other than highway rights of way) has been 72 R.S. 9:4801 et. seq. 73 R.S. 9:4870 74 The construction of pipelines, gasoline and other plants, and similar facilities are examples of 75 Generally speaking the State of Louisiana, or any of its subdivisions, departments or 29 acquired by any state agency or political subdivision or any other state or local agency from any "person of the United States" then the agency thereafter may not transfer the land to a "third person" without first "offering to sell it back to the original grantor, donor, or vendor or his successors in title" unless the terms of the original acquisition stipulates otherwise. D. Public roads. If any road or street is "worked" or maintained for three years by a parish or municipality it becomes "public." However this is deemed only to vest a servitude in the public and ownership of the land remains in the private domain.76 E. Servitudes. Other types of servitudes may be established over the property of another or in favor of another, without title. These include such things as "party or common walls", rights of passage over adjacent lands given to an enclosed estate, and other servitudes established by "destination" when a person sells or disposes of a part of his property and the part not sold is used by visible means, such as power lines, driveways etc, constructed obviously for the benefit of another.77 When part of the land owned by one person is sold and there is no agreement to the contrary, the properties both sold and retained, have a servitude imposed upon them to the extent facilities for the use of one of the other are deemed to constitute evidence of an apparent servitude.78
Section 3. Matters Pertaining To Minerals. A. Orders Of The Department Of Conservation. R.S. 30:11 requires the Commissioner of Conservation to file in the conveyance records of the parishes where the immovables are located, certified copies of all orders and amendments creating drilling or production units within 30 days after their issuance. There has never been any intimation that the failure to make such a filing would affect the validity of the order. Furthermore, one cannot be certain in any event as to what may have transpired during the 30 days preceding an investigation of the records. B. Interruption Of Prescription And Maintenance Of Leases By Production Or Operations. It is of course, always necessary to determine independently of the records, in one sense, whether mineral rights have been maintained by production or operations. If the mineral rights or leases under examination cover lands other than those in which the examiner is interested and an investigation reveals that there is or has been mining operations only on adjacent lands comprising part of the same interests, it is also 76 See, e.g. Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La. 1977) Generally 77 C.c. Art 673 78 C. C. Art. 741 30 necessary to examine to a limited degree title to the lands on which the operations or production may have occurred to ascertain if they are in fact both the same interests and, in the case of servitudes, executive rights, and royalties, the lands are in fact contiguous to the lands under examination. C. Leases On Public Lands. Oil and gas, or other leases granted by the state or a state agency by the State Mineral Board are regulated by the provisions of Title 30 of the Revised Statutes. Their issuance, transfer and similar matters are required to be filed with the Mineral Board, rather than the parish conveyance or mortgage records. It is beyond the scope of this paper, but mention should be made that, in the opinion of the writer at least, the practice of recording transfers, etc of leases issued by the federal government covering offshore water bottoms in the conveyance or mortgage records of the parish abutting the federal area is both unnecessary and of no effect.
Section 4. Effect Of Errors In The Records ; Forgery , And Erroneous Cancellations Before Act 169 became effective there was a considerable amount of litigation as to what constituted a "lawful" recordation. The courts generally held that a mistake by the recorder in properly, indexing an instrument or just failing to record it at all did not affect the validity of the recordation.79 The revision resolves the matter by providing that recordation is effective at the time the instrument is filed with the recorder and that it is "unaffected by subsequent errors or omissions of the recorder."80. It is also well settled that a forged instrument provides no benefits even though the instrument appears to be genuine. Certainly the law could not permit anyone to record an instrument, no matter how genuine it may appear, and deprive the lawful owner of his property.
Section 5. Capacity And Authority A. Introduction. The Code now expressly declares that "capacity or authority ... and similar matters pertaining to rights and obligations evidenced by a recorded instrument are effective as to a third person although not evidenced of record."81 This puts the burden on the examiner to verify both the "capacity" of the party to enter into the transaction in question and to verify that the person acting for and on behalf of another is in fact authorized to do so. This provision has been the subject of some criticism from the bar. However, the alternative, i.e. of requiring that the capacity and authority be evidenced of record, was decided to be more unsatisfactory since under the system which makes recordation a matter of effectiveness it would pragmatically render any transaction invalid as to third persons if proper evidence of the authority of the person executing it in a representative capacity was not recorded. For the most part the present rule has been the law for many 79 See, e.g. Delenro v. Coastal States Gas Producing Co., 429 So.2d 183 (La. App. 1st Cir. 80 C. C. Art. 3347 81 C. C. Art. 3339 31 years without substantial difficulties. There are some instances where perhaps some comment would be useful. B. Corporations. The law requires copies of the corporate articles be filed "in the office of the recorder of mortgages in which the registered office of the corporation is located."82 It also appears clear that however, that the corporate existence begins when the Secretary of State issues his certificate of incorporation or within five days thereto, if the articles were timely filed, and that one cannot rely with assurance upon the articles that are recorded with the parish recorder.83 Resolutions authorizing the actions of officers or other representatives executing them on behalf of a corporation do not have to be recorded, nor for that matter do limitations on the powers of the board of directors or corporation itself that may be found in the articles of incorporation. The "ancient documents" rule, previously mentioned, provides that any instrument that has been of record for at least ten years is presumed to have been validly signed by the persons whose signatures appear on it and that if the person signing does so in a representative capacity that he was properly authorized to do so. Good practice however dictates that certified copies of such resolutions or extracts from the corporate articles should be attached to or filed with instruments alienating or encumbering the property of the entity demonstrating the authority of the person acting for the corporation. C. Partnerships The rules pertaining to partnerships are more complicated, and unfortunately not entirely clear in at least one respect. C. C. Art. 2806 essentially regulates the matter and sets forth the following rules. 1. An immovable acquired in the name of a partnership is owned by it, if at the 2. If the contract of partnership is not in writing at the time of acquisition "the immovable is owned by the partners." 3. As to "third persons" however, the individual partners "shall be deemed to be own immovables until the contract of partnership is filed with the secretary of state."84 4. When an immovable is acquired by "any persons acting in any capacity for and in the name of any partnership which has not been created by contract as required by law" and the partnership is subsequently created by contract as required by the Civil Code, "the partnership's existence" shall be "retroactive to the date of acquisition" but without prejudice to the rights acquired by third persons in the interim. 82 R.S. 12:25(D). 83 R.S. 12:25(D). 84 R.S. 9:3406 provides a multiple original or certified copy of the contract of partnership is to 32 5. Further, a "foreign partnership" i.e. one organized under the laws of another state must register its articles with the secretary of state "to own immovable property If the articles of partnership are neither recorded, nor "in writing" these rules present a number of obvious problems to the examiner that can only be mentioned in passing. First and foremost of course, if the contract of partnership "is not in writing", the question is raised as to how does one determine whether there is in fact a "partnership" and if so who the partners are "in whom the title is vested?" The official comments to the provision in question rely upon the case of Madison Lumber Co. v. Picheloup et al.86. as its foundation. In that case there was apparently no question that several individuals were in fact holding themselves out as a partnership and that they were in fact all of the "partners." Secondly, of course there is the problem as to the effect of changes in the marital or other status of the "partners" whoever they are, before they execute the contract of partnership. Finally, there is the problem, if the transaction only identifies a party as a "partnership" and only one person appears to "represent" it, as to who the others, if any, might be and how can one reliably determine that fact. D. Minority And Emancipation. 1. The capacity of an individual, as expressly provided by C. C. Art. 3339 is not a "recorded matter." Judgments authorizing tutors of minors and others do not have to be recorded as evidence of their authority to act, but again, good practice would dictate they should be to eliminate uncertainty. It must be remembered however that emancipation of a minor can occur by reaching the age of majority, by judicial act, and by marriage. 2. One area that occasionally can present some difficulty when dealing with minors and others domiciled outside of the state is Civil Code Art. 3539. It provides that "a person is capable of contracting if he possesses that capacity under the law either of the state in which he is domiciled at the time of making the contract or the state whose law is applicable to the contract under Art. 3537." It is not clear whether and to what extent, if any, the provisions of that article apply to contracts to sell or lease immovables.
Section 6. More On Who Are Third Persons A. Introduction The general principles as to who "third persons" are within the purview of the law are fairly simple. If one is not a party to the unrecorded instrument which is being asserted against him, in every case he is in a sense a "third person." The so called "exceptions" are all based upon the premise that the instrument can be enforced against a person or he can be made to recognize its provision, for reasons independently of its recordation. In simpler terms, one is not a third person if, by the law of obligations or some other legal principle, the person asserting rights against him can do so independently of the recordation of the instrument on which his claim is based. The following are some of the more common examples. 85 C. C. Art. 3423. 86 125 So. 175 (La. App. Orleans 1929) 33 B. Marital Property. 1. Introduction. Evidence of a person's marital status need not appear of record. C. C. Art. 2332 provides that a matrimonial agreement or judgment establishing a regime of separation of property is only effective as to third persons "with respect to immovable property" when recorded in the parish where the property is located and with respect to movables when filed in the parish or parishes in which the spouses are domiciled. In the absence of such filings, third persons may assume the statutory community regime prevails. The legal regime of the community terminates by death, judgment of divorce, separation, nullity of the marriage, or a matrimonial agreement that terminates it.87 It appears that a judgment of divorce or separation is not binding upon third persons if it is not recorded.88 As can be seen, the combined effect of these principles is such that if "A" acquires property without mentioning that he is married, his spouse acquires an interest in it as community property and, in theory, third persons must determine if he is married, and if successful, are entitled to deal with the spouse as owning a ½ interest in the property, until someone records the judgment of divorce or marital agreement. It must be remembered, however, that the spouses themselves are in fact bound by and cannot assert rights inconsistent with the judgment or a matrimonial agreement, whether or not the instruments are recorded. 2. Spouse As A Third Person A corollary of the above principles is that ordinarily one spouse is not a "third person" with respect to the contracts and property of the other spouse - although he or she may raise objections as to the extent to which the other may have had the authority to enter into the contract.89 Whether or not this principle will prevail in those cases where a spouse may be dealing with his separate property, or for example, attempts to alienate the property in a manner inconsistent with the rights of the other spouse, is perhaps open to debate. C. Successions Under the law, in the absence of a will, the property of the decedent automatically passes to his heirs who may alienate or encumber the same, without further proceedings. Such rights however are subject to the possibility that formal succession proceedings may (and today probably will) be opened and the property may be disposed of in those proceedings. An heir, who accepts the succession by dealing with the property is a universal successor to the decedent and thus, not a third person with respect to him. In at least once 87 C. C. Art. 2356 88 Humphreys v. Royal, 41 So.2d 220 (La. 1948) 89 See, e.g. Baker v. Baker, 26 So. 2d 132 (1946); Doherty v. Baldwin, 405 So. 2d 1301 (La. App. 1st Cir. 1981); 34 case, the heir of a spouse was, under these principles, held not to be a third person with respect to transactions of the deceased spouse.90 One exception to the rule, that is in effect not dependent upon the law of registry, is found in R.S. 9:5160 which establishes a two year prescriptive period by actions against third persons to assert an interest in an immovable by anyone who is an heir or legatee of a decedent and who was not recognized as such in a judgment of possession in the decedent's succession.
Section 7. More On "Subject To" and Assumptions. It is not unusual to encounter sales and other conveyances that are made "subject to" a variety of unrecorded contracts or agreements. The exact nature of such agreements in principle is by no means certain and may vary according to the context in which they are found. Such a clause must be distinguished from one in which a person expressly "assumes" the obligations of an unrecorded agreement or other matter. In that connection it should be noted that the Civil Code expressly requires an assumption of the obligation of another obligor to be in writing.91 For reasons mentioned above, a sale "subject to" a contract or obligation generally excludes an inference that the purchaser is personally bound for its performance. It does generally imply that the purchaser will do nothing to interfere with or prevent performance of whatever rights and obligations may flow from the matter described. The use of the term "subject to" is found in a multitude of variations, ranging from such things as "this sale is made subject to a contract between seller and ____" to "this sale is made subject to all valid, obligations of record." However, such clauses should also be viewed as a variation on the principles previously mentioned. If the contract or obligation is unrecorded, then the question become to what extent is the "subject to" language enforceable against the transferee? It would then seem to depend, not upon the transferee's relation to the matter to which the transaction is "made subject," but rather upon his relationship to the person to whom the obligation is given. In other words, unless the clause is deemed to be a stipulation pour autri, one would assume it represents an agreement between the parties to the contract in which it is found and should be enforced only to the extent it represents an obligation of the transferor to the transferee. Again, it is not a matter dependent upon recordation but upon the effect of the contract which gives rise to it. Thus, if the denial of the rights of the unrecorded party would give rise to an action against the party transferring the rights, then the transferee ordinarily would be liable to the transferor. However, if the agreement is in terms similar to the 90 See, Porterfield v. Parker, 180 So. 49 (La. 1938). Although an old case the logic seems 91 Art. 1821. Assumption by agreement between obligor and third person "An obligor and a third person may agree to an assumption by the latter of an obligation of the former. To be enforceable by the obligee against the third person, the agreement must be made in writing." 35 second example made above one might well argue that the "subject to" clause was intended to be merely a limitation on the warranties of the transferor to the transferee.
Section 8. A Few Express Exceptions To Act 169. There are also a few, isolated, though not necessarily unimportant, statutory provisions that do not precisely conform to the general principles enunciated in Civil Code Art. 3335. Among them are the following. R.S. 9:2725 requires each person92 obtaining a servitude or right of way across private property where the servitude or right of way is obtained for the installation of a facility, or facilities, shall attach to the servitude or right of way agreement a plat, sketch or aerial photograph showing the approximate location of the servitude or right of way and the instrument and plat, sketch or aerial photograph shall be recorded in the conveyance records of the parish in which the private property is situated. The term "facility" includes "waterways and drainage canals and underground, surface and overhead pipelines, sewerage lines, utility lines and electric power lines" other than public utility servitudes established by a subdivider of a subdivision and "service drop wires." If the act applies, a failure to record the plat, or other item mentioned, renders the agreement ineffective except as between the parties. R.S. 9:2727 requires a plat of immovable property, including servitudes or other rights, acquired for the purpose of constructing and maintaining roads or "class 1 - 3 highways" to be recorded in the conveyance records. The failure to do so, however does not affect the rights taken. 92The definition of "person" is somewhat ambiguous in that it is defined as follows: "Person" as used in this section shall include natural persons, municipalities and parishes and other political subdivisions and agencies and departments thereof, and persons, companies or corporations operating private or public pipelines or private or public utilities. 36
* Professor emeritus at LSU Law Center, Baton Rouge, USA, x7595x@aol.com.
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