Simple Acts of Tolerance: A Slap in the Face to Acquisitive Prescription

Abstract

The Louisiana Supreme Court handed down a very controversial decision on May 5, 2015, when it decided Boudreaux v. Cummings. The Louisiana Supreme Court erred in its decision, holding that Boudreaux failed to prove a predial servitude was established by acquisitive prescription because Boudreaux failed to prove he possessed the real right in question, a right of passage. The court erred in its decision by adopting an extremely liberal subjective standard for evaluating acquisitive prescription, relying on the ideas of “neighborly accommodations” and “simple acts of tolerance.” Acquisitive prescription has had a place in Louisiana property law for many years. Its purpose was to maximize the use of immovable property and to reward those who make active, physical use of land that does not belong to them. The author examined years of Louisiana cases involving acquisitive prescription, from the first case to the most recent. The author also examined cases from French law, upon which the Louisiana Civil Law Property Code was based. The author discovered that the reasoning behind the courts’ decision has been discussed only a handful of times in Louisiana Court decisions, and has not been discussed at all in recent years. This article examines the laws of acquisitive prescription and when they apply. This article specifically deals with neighboring properties and the problems that now arise with acquisitive prescription due to this new court decision. The main idea behind acquisitive prescription is hindered as long as this decision takes precedent, which is why this article explains and recommends that the decision from the Louisiana Supreme Court must be changed.