Earlier this year, the Louisiana Third Circuit Court of Appeal ruled that co-owned hunting land could not be divided up and therefore had to be sold at public auction. Broussard v. Stutes Farms, LLC, 13-1122 (La. App. 3 Cir. 3/5/14), 134 So. 3d 226. The case involved two co-owned tracts of property totaling 125 acres of marsh land which the landowners stipulated was best used for duck hunting.
Two Ways to Partition Property in Louisiana
Under the Civil Code, there are two ways to partition, or divide up, property. The first way is to partition in kind, or to physically divide the property between the parties. With immovable or real property, this usually means subdividing the property into lots, with each co-owner taking a lot of equal value. Under La. Code of Civil Procedure art. 4606, partition is generally made in kind unless the property is indivisible by nature or cannot be conveniently divided. In fact, under La. Civil Code art. 810, the court SHALL decree partition in kind when the thing held in indivision is susceptible to division into lots of nearly equal value.
The other type of partition is by licitation, where the judge orders the property to be sold, either privately or by public sale. La. Civil Code art. 811. Generally, private sales may be more desirable because the property owners may get better value through a private sale than via public auction. That being said, a co-owner can bid at the public auction, so it can also be used as a way to buy out other co-owners.
Because of Unique Nature of Hunting Land, Cannot Be Easily Divided
In Broussard, one set of co-owners sued for partition by licitation on the grounds that the property could not be easily divided. The trial court ruled in their favor, and the appellate court agreed. The court acknowledged that there is a preference in the law for partition in kind; however, in this case, it was not possible to divide the property into two tracts of equal value.
The topography of the specific tract of land did not lend itself to partition in kind because expert testimony was given to demonstrate that one side of the property is much more valuable than the other. Partitioning the property would create an issue of access to one of the tracts of property. Partition in kind would mean one party would have to access its property via a right-of-way over the former co-owner’property. The court also noted that due to the nature of duck hunting, both in terms of sound issues and safety, it is important for the parties to coordinate when they will be hunting.
It is very common in our area to see co-owned property for hunting and hunting rights. The Broussard opinion adds a legal platform for hunting land to be more easily subject to partition by licitation. In that case, co-owners that would like to retain hunting rights have to either buy the entire property at public auction or risk losing their right to hunt altogether. This decision also increases the chance of losing the property altogether, making it even more important to choose who to purchase property with very carefully.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.