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

There’s Hope for the Canadian Real Estate Market Post COVID-19

by Steven Tulman

Clover Mortgage offers advice and predictions on the Toronto real estate market as we move on post-pandemic.

Canadian Real Estate Market Post COVID-19

Brick to Click

by Lindsay Mesh Lotito

Trends in commercial real estate have been fast-tracked by the pandemic. Here’s what lenders and borrowers must do to ensure their viability in a rapidly changing world.

Online Shopping Shifts Commercial Real Estate

East Side Story

by Adam Leitman Bailey

The made-for-Hollywood tale of a 16-year legal tussle to help a dedicated band of Manhattan “homesteaders” take ownership of the buildings they had moved into and begun to rehab.

Rosario Dawson's Family Fight for NY Building

Shake On It

by Justin Smulison

The importance of proper documentation in real estate dealings is highlighted by the legal repercussions many have faced after brokering non-binding handshake deals.

Real Estate Handshake Deals Are Non-binding

House Trap

by Heidi E. Storz

Special districts are often being used as profit centers that leave residents to foot the bill. These homeowners deserve protection from unscrupulous developers who attempt to fleece them and avoid accountability.

Special Districts Changing Property Ownership

Announcing the 2022 Best Lawyers: Real Estate and Infrastructure Publication

by Best Lawyers

Featuring the top legal talent from The Best Lawyers in America, Best Lawyers: Ones to Watch in America and "Lawyer of the Year" recipients for real estate and infrastructure as well as thought leadership from some of the nation's top lawyers.

Real Estate and Infrastructure Publication

When a Dream Home Becomes a Nightmare

by Peter B. McGlynn and Robert Stetson

A modern-day Bleak House* offers a cautionary tale about buying real estate—and a legal strategy that helped our clients gain redress.

Blueprint of a house with yellow caution signs

Gimme Shelter

by Janice Zhou

Being able to afford housing in Boston, and other desirable cities like it, is increasingly out of reach for too many. What can be done, legally and politically, to combat the problem?

Housing Shortage in Boston

WATCH: Best Lawyers Discusses COVID-19 & Rental Agreements

by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about a general approach to “the rental” market and what happens if tenants can’t pay rent in May.

COVID-19 Panel: Rental Agreements

Is This a Once in a Lifetime Opportunity to Refinance Right Now?

by Roy D. Oppenheim

If you wish to stay in your current home and refinance or buy a new home, now is the time

Should You Buy a Home During This Pandemic?

Impact of Climate Change on Real Estate Law

by Best Lawyers

Dr. Christian Schede discusses rent in large cities, the effect of Airbnb, and more.

An Interview With Greenberg Traurig

Eyes Set on Lincoln Road Development

by Best Lawyers

Plus other news involving South Florida's Best Lawyers

Eyes Set on Lincoln Road Development

An Interview With Bryan Cave Leighton Paisner

by Best Lawyers

Russia’s 2020 “Law Firm of the Year” honoree for Real Estate Law

Bryan Cave Leighton Paisner–LFOTY

Changing for the Better

by Justin Smulison

Joseph Brophy’s Austin-based boutique firm comprises some of the most talented and experienced civil litigators in Texas.

Betting on Finance, Civil Litigation Success

In the News: Texas 2019

by Best Lawyers

A roundup of relevant news from lawyers listed in Texas.

Legal News Roundup Texas

Trending Articles

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

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

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

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

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2022 Best Lawyers in Canada™

by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

All Eyes to the Ones on the Rise

by Rebecca Blackwell

Our 2023 honorees recognized in Best Lawyers: Ones to Watch™ in America tell us more about how their path to law formed, what lead them to their practice areas and how they keep steadfast in their passion to serve others.

Person walking between glass walls towards window

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing the 2022 Best Lawyers™ in Australia

by Best Lawyers

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

Announcing the 2022 Best Lawyers™ in Australi

Announcing the 2022 Best Lawyers in South Africa™

by Best Lawyers

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

Announcing 2022 Best Lawyers in South Africa