When Purchasing Property, Take Note of What You See

A recent case in the Louisiana Court of Appeal highlights an area of law anyone in real estate needs to know.

What Are Apparent Servitudes?
Robert M. Steeg

Robert M. Steeg

March 26, 2019 09:57 AM

A recent case, Naramore v. Aikman, decided by the Louisiana Court of Appeal for the First Circuit demonstrates some established but little known principles of Louisiana law that every person dealing with real estate in Louisiana should be aware of.

The issue is servitudes, roughly the equivalent of “easements” in common law. Servitudes may be personal, between two individuals, or they may run with the land, in which case they are called “predial” servitudes. Predial servitudes place a burden on one parcel of real estate (called the “servient” estate) in favor another parcel of real estate (the “dominant” estate).

Case Background

In the case at issue, Naramore v. Aikman, four large lots, each measuring approximately nine acres, were situated next to each other. At the bottom of all the lots, on their southern side, there was a gravel road measuring approximately 20 feet wide. The gravel road started at a public street on the west and ran in an easterly direction, crossing each of the four lots.

The owner of one of the parcels felt that the use of the road by his neighbors was becoming a dangerous nuisance, so in 2011, he barricaded the road. A lawsuit ensued.

Originally, as far back as 1956, all of the parcels were owned together, as one large tract, by Sam and Vivian Arnold. The Arnolds built the gravel road that ran along the southern edge of his entire tract in the late 1950s or early 1960s.

As you might suspect, the Arnolds later subdivided the large tract into four parcels, and sold them off. The documents by which the Arnolds sold the four parcels, and by which the initial purchasers later sold their individual parcels to subsequent buyers, were confusing at best and conflicting at worst. Some of the documents referred to the roadway, and some did not. Some of the documents had surveys attached to them showing the gravel road as a servitude, and some did not.

Servitude by Destination of the Owner

The question at the trial in 2013 was: did the roadway constitute a servitude pursuant to which all of the parcels were burdened by (and required to allow the existence of) the roadway, for the benefit of all their neighbors?

There is a doctrine in Louisiana law called a “servitude by destination of the owner.” An owner cannot create a servitude between multiple tracts of property while they are all owned by him or her. As long as the same owner owns the two tracts, no servitude can exist between the properties. However, an owner can set up a relationship between different tracts of property, such that a servitude comes into existence automatically when the owner ceases to be the owner of all of them. At that point, when the properties are owned by different persons, one property can be the “servient” estate that is burdened by an obligation in favor of another parcel as the “dominant” estate.

This particular kind of servitude can be established by a document. The owner would recite in the document that he or she is burdening one tract in favor of the other, and that he or she intends for a servitude between the two properties to come into existence whenever ownership of the tracts is separated. That did not happen in the Naramore case.

However, a servitude by destination of the owner can come into existence through another method—namely, by the physical creation of a visible physical relationship between the parcels, such that one of them is obviously burdened in favor of the other. This can be in the form of a sidewalk or a roadway or an overhead bridge or any other physical structure or relationship. These are “apparent” servitudes as long as the physical structure is visible to a person who is observing the parcels.

Because all of the documents in the Naramore case were so confusing, they did not clearly establish a written servitude. The trial court turned to the doctrine of an “apparent” servitude by destination of the owner. The court found that the gravel roadway in question had existed for at least 50 years. The court further found—and this is an essential element of the claim—that the roadway had been in continuous use during this time period. (A servitude like this can be lost by virtue of non-use for ten years.)

Louisiana Court of Appeal, First Circuit Ruling

The Louisiana Court of Appeal, First Circuit, held in June 2018 that the trial court’s ruling in the Naramore case was correct. The gravel roadway was there for all persons to see. Anyone buying the property would see the gravel roadway and would see that it extended across all four adjacent tracts. This is precisely what is meant by an “apparent” servitude. In this case, the “apparent” servitude was created at a time when all of the parcels were owned by a single owner, and an “apparent” predial servitude sprang into existence the moment that the common owner conveyed title to the first third-party buyer of one of the tracts.

The Lesson for Would-be Purchasers

The lesson for all would-be purchasers is that a written instrument does not have to exist in order for a piece of property to be burdened by a servitude that runs with the land, in favor of another tract as the “dominant” estate. There was nothing in the public records that clearly established a servitude; the servitude existed solely by virtue of what physically existed on the land.

If a prospective purchaser sees something on one piece of real estate that appears to benefit another piece of real estate, then the words “apparent servitude” should come to mind, and a thorough investigation is warranted. Otherwise, the buyer could find that the property he or she purchases is burdened by a servitude, even if there is no document whatsoever in the public records on the subject.


As one of the most experienced real estate lawyers in New Orleans, Steeg Law Firm Managing Partner Robert Steeg is highly respected for his handling of a wide variety of real estate transactions.

Rob has assisted hundreds of clients with handling thousands of purchases, sales, loans and leases for all sizes and kinds of real estate throughout the southeast Louisiana region, including industrial, office, multi-family, and retail properties.

Related Articles

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Solutions to Common Real Estate Co-Ownership Conflicts

by Eric B. Smith

If you are involved in the co-ownership of property, there are a few common scenarios you should know to navigate. When it comes to real estate co-ownership, a partition is just one solution to look into.

Handling Real Estate Co-Ownership Conflicts

Client Service in Real Estate Law: Identifying Attorneys Who Truly Care

by Best Lawyers

What is client service in real estate law, and why is it important? Learn more about the value a real estate lawyer who emphasizes client service can provide.

Two unseen individuals shake hands with miniature house models in background


Foiled Plans: How Adam Leitman Bailey, P.C. Thwarted A Famous Building’s Trickery

by Rebecca Blackwell

When the Frick building, planned renovations that would threaten the welfare of nearby residents, Adam Leitman Bailey, P.C. jumped in to uncover the truth.

Front of the Frick Building in New York City

4 Essential Steps for Commercial Real Estate Due Diligence

by Best Lawyers

Due diligence in real estate is essential for all parties. Best Lawyers walks through the key steps of effective due diligence in commercial real estate.

Animated magnify glass in front of building and checklist

The Role of Title Insurance in Real Estate Transactions

by Best Lawyers

Title insurance can provide benefits, protection and peace of mind in a real estate transaction, which can often be complex. Best Lawyers take a closer look.

Individual signing a document with house keys in background

Maximizing Your Investment in Real Estate Development with Legal Expertise

by Best Lawyers

Best Lawyers evaluates the various types of real estate development projects and why hiring legal expertise could maximize the outcome of your investment.

Wooden house cut outs in a shopping cart with a blue backdrop

Leasing Commercial Real Estate

by Best Lawyers

We have compiled this “leasing commercial real estate checklist” to help guide discussions with a commercial real estate lawyer before signing a lease.

Unseen figure with pen points to apartment building model


A Street Fight in the Bronx

by Adam Leitman Bailey

Adam Leitman Bailey’s firm helped settle a Bronx brawl over land between two parties and brought victory against a long-standing powerful family in New York.

Warehouse in New York at night


Heroes Among Men: How Adam Leitman Bailey, P.C. Saved Lives of the Lifesaving

by Rebecca Blackwell

When a 911 Center in New York City was put in danger, Adam Leitman Bailey, P.C. went to work against the unlawful and hazardous actions of a developer whose construction threatened the peace and safety of all who worked for the Fortune 500 company.

Danger construction site no trespassing sign on fence

The Role of Flood Zones in Florida Real Estate Transactions

by Best Lawyers

Get a comprehensive understanding of flood zones in Florida real estate. Learn about the risks, insurance requirements and disclosure obligations.

Trees blowing in flood waters and storm

How Real Estate Transactions in the Residential Sector Work

by Best Lawyers

Discover how real estate transactions in the residential sector work with this guide. Learn about the stages, parties involved and legal requirements.

Man looking at houses on computer


Adam Leitman Bailey Saves Upper East Cooperative From Forced NYU Combination With Neighboring University Building

by Rebecca Blackwell

When a New York resident of an iconic building was faced with a potentially devastating renovation to his beloved home, powerhouse real estate lawyer Adam Leitman Bailey tightened the knot on the loophole others said didn’t exist.

Large brownstone building with blue sky above in New York City


Residential Real Estate Slowdown Expected To Continue in 2023

by Mick Harris

Rising housing costs and mortgage rates were becoming the norm in 2022. Experts anticipate that 2023 may show much of the same.

Apartment buildings with yellow haze


How To Run a Board Meeting

by Adam Leitman Bailey

Adam Leitman Bailey explains how using Robert's Rules of Order can assist with effective and productive board meetings in real estate matters.

Several people sitting in chairs around boardroom table


The Wolf Near Wall Street

by Rebecca Blackwell

When tensions among shared real estate owners reached their tipping point, Adam Leitman Bailey P.C. stepped in and solved a modern issue with an ancient remedy.

Mortgage documents on desk

Trending Articles

The 2024 Best Lawyers in Spain™

by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky

Best Lawyers Expands Chilean 2024 Awards

by Best Lawyers

Best Lawyers is pleased to announce the 14th edition of The Best Lawyers in Chile™ and the inaugural edition of Best Lawyers: Ones to Watch in Chile™, honoring the top lawyers and firms conferred on by their Chilean peers.

Landscape of city in Chile

Announcing The Best Lawyers in South Africa™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

The Best Lawyers in Spain™ 2023

by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Portugal™ 2024

by Best Lawyers

The 2024 awards for Portugal include the 14th edition of The Best Lawyers in Portugal™ and 2nd edition of Best Lawyers: Ones to Watch in Portugal™.

City and beach with green water and blue sky

The Best Lawyers in Peru™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 10th edition of The Best Lawyers in Peru, the prestigious award recognizing the country's lop legal talent.

Landscape of Peru city with cliffside and ocean

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The Best Lawyers in Chile™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

The Best Lawyers in Colombia™ 2024

by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Colombia™ for 2024, which honors Colombia's most esteemed lawyers and law firms.

Cityscape of Colombia with blue cloudy sky above

Announcing the 2024 Best Lawyers in Puerto Rico™

by Best Lawyers

Best Lawyers is proud to announce the 11th edition of The Best Lawyers in Puerto Rico™, honoring the top lawyers and firms across the country for 2024.

View of Puerto Rico city from the ocean

The 2023 Best Lawyers in Portugal™

by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Unwrapping Shrinkflation

by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue


Making an Impact

by John Fields

Morelli Law Firm has changed countless lives through its transformative results.

Three men in suits against New York skyline