Article by Sally Brown Richardson
Keeping property in commerce is a stated goal of every jurisdiction’s property law and Louisiana is no exception. Much of Louisiana’s property law aims, at least in part, to keep property easily transferrable on the open market. One of the clearest examples of this is the state’s regime for land cut off from any public road or what the Louisiana Civil Code refers to as enclosed estates. Similar to the common law doctrine of easement by necessity, Louisiana law provides that all estates without access to a public road have a right to obtain passage over neighboring property to reach the nearest public road. Louisiana law further carves out two exceptions to the default rule: an estate that was enclosed upon, be it by partition or alienation, is entitled to gratuitous passage to the public road, and an estate that encloses upon itself by an act or omission is not automatically entitled to a right of passage to a public road over a neighboring estate. Louisiana’s law on enclosed estates is designed to ensure that land is kept in commerce by keeping land physically accessible. The overarching structure of the current law attempts to achieve this goal, but unclear rules and differing jurisprudential interpretations of those rules have created a series of negative externalities. This Article explores Louisiana’s enclosed estate law and suggests modest reforms to keep landlocked properties in commerce without creating unintended adverse consequences.
About the Author
Sally Brown Richardson: A.D. Freeman Associate Professor of Civil Law, Tulane University Law School; Reporter for the Property Committee of the Louisiana State Law Institute. Earlier drafts of this Article have been presented at the Association of Law, Properly, and Society Conference hosted by Syracuse University College of Law and at the Regulatory Workshop hosted by Tulane University Law School and the Tulane Murphy Institute.
Citation
94 Tul. L. Rev. 519 (2020)