CODE TITLE IV CONVENTIONAL OBLIGATIONS OR CONTRACTS CHAPTER 1. INSOLVENCY PART I. GENERAL PROVISIONS 9:2601 to 9:2620. [Repealed by Acts 1986, No. 471, Section 1.] PART II. FORCED SURRENDER 9:2621. [Repealed by Acts 1986, No. 471, Section 1.] 9:2622. [Repealed by Acts 1986, No. 471, Section 1.] 9:2623 to 9:2640. [Repealed by Acts 1986, No. 471, Section 1.] PART III. VOLUNTARY SURRENDER 9:2641. [Repealed by Acts 1986, No. 471, Section 1.] 9:2642. [Repealed by Acts 1986, No. 471, Section 1.] 9:2643. [Repealed by Acts 1986, No. 471, Section 1.] 9:2644. [Repealed by Acts 1986, No. 471, Section 1.] 9:2645. [Repealed by Acts 1986, No. 471, Section 1.] 9:2646. [Repealed by Acts 1986, No. 471, Section 1.] 9:2647. [Repealed by Acts 1986, No. 471, Section 1.] 9:2648. [Repealed by Acts 1986, No. 471, Section 1.] 9:2649. [Repealed by Acts 1986, No. 471, Section 1.] 9:2650. [Repealed by Acts 1986, No. 471, Section 1.] 9:2651. [Repealed by Acts 1986, No. 471, Section 1.] 9:2652. [Repealed by Acts 1986, No. 471, Section 1.] 9:2653. [Repealed by Acts 1986, No. 471, Section 1.] 9:2654. [Repealed by Acts 1986, No. 471, Section 1.] 9:2655. [Repealed by Acts 1986, No. 471, Section 1.] 9:2656. [Repealed by Acts 1986, No. 471, Section 1.] 9:2657. [Repealed by Acts 1986, No. 471, Section 1.] 9:2658. [Repealed by Acts 1986, No. 471, Section 1.] 9:2659. [Repealed by Acts 1986, No. 471, Section 1.] 9:2660. [Repealed by Acts 1986, No. 471, Section 1.] 9:2661. [Repealed by Acts 1986, No. 471, Section 1.] 9:2662. [Repealed by Acts 1960, No. 37, Section 7.] 9:2663. [Repealed by Acts 1986, No. 471, Section 1.] 9:2664. [Repealed by Acts 1986, No. 471, Section 1.] 9:2665. [Repealed by Acts 1986, No. 471, Section 1.] 9:2666. [Repealed by Acts 1986, No. 471, Section 1.] 9:2667. [Repealed by Acts 1986, No. 471, Section 1.] 9:2668. [Repealed by Acts 1986, No. 471, Section 1.] 9:2669. [Repealed by Acts 1986, No. 471, Section 1.] 9:2670. [Repealed by Acts 1986, No. 471, Section 1.] 9:2671. [Repealed by Acts 1986, No. 471, Section 1.] 9:2672. [Repealed by Acts 1986, No. 471, Section 1.] 9:2673. [Repealed by Acts 1986, No. 471, Section 1.] 9:2674. [Repealed by Acts 1986, No. 471, Section 1.] CHAPTER 1-A. OF PRESUMPTIONS 9:2701. Judgment in class action concludes all members of class adequately represented A definitive judgment on the merits rendered in a class action concludes all members of the class, whether joined in the action or not, if the members joined as parties fairly insured adequate representation of all members of the class. CHAPTER 1-B. REQUISITES FOR A VALID AGREEMENT 9:2711. Definitions; withdrawal of consent to agreement A. For the purposes of this section the following definitions shall apply to the terms used herein: (1) An "itinerant door-to-door salesman" means as a person who has no fixed place of business and who goes from house to house, or from place to place, selling or offering for sale goods and services. (2) A "purchase agreement" means a written agreement which obligates a person to accept merchandise or services from another for a stated consideration in excess of one hundred fifty dollars. B. Any person who signs a purchase agreement with an itinerant door-to-door salesman has a period of three days in which to withdraw his consent to the agreement, the three-day period shall commence on the day following the making of the agreement by the purchaser. 9:2711.1. Consumer's Right to Cancel Noncredit Home Solicitation Sale A. For purposes of this Section the following definitions shall apply to the terms used herein: (1) A "noncredit home solicitation sale" is a consumer sale involving a cash price of twenty-five dollars or more for goods or services or both, in which the seller or a person acting for him engages in a personal solicitation of the sale at any place other than the business establishment of the seller and the purchaser offers to purchase or agrees to the sale at a place other than the business establishment of the seller or his representative. This definition shall also include all telephone solicitations in which the seller has initiated contact regardless of his location, and the consumer's agreement to purchase is made at the consumer's home. It does not include a consumer credit sale as defined in R.S. 9:3516(11), a sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale, a catalogue sale, a sale that may have been initiated by the consumer by communication, whether by telephone or in person, with the seller at his business establishment, or policies of insurance. (2) A "consumer sale" is the sale of a thing or services purchased primarily for personal, family, or household purposes and the purchaser is not an organization; however, a consumer sale shall not include the sale of religious periodicals, books, and other religious materials by a bona fide religious association, a motor vehicle, immovable property, farm equipment, farm services, or any transaction made pursuant to the Motor Vehicle Sales Finance Act, R.S. 6:951 et seq. The parties to a contract may contract with one another that a sale shall be a consumer sale for the purposes of this Section, except those sales subject to the Motor Vehicle Sales Finance Act. B. Each seller or person acting on behalf of a seller, who makes or attempts to make a noncredit home solicitation sale shall comply with the provisions of R.S. 9:3539 and R.S. 9:3540 and shall provide a written agreement or offer to purchase that complies with the requirements of R.S. 9:3539. Each consumer purchasing or agreeing to purchase as the result of a noncredit home solicitation sale, shall have the right to cancel such sale in accordance with the requirements of R.S. 9:3538 through R.S. 9:3541. C. It shall be an unfair trade practice for a seller or his representative to fail to comply with the provisions of R.S. 9:3539 and R.S. 9:3540 and the failure to so comply shall subject the seller to the penalties and actions found in the Unfair Trade Practices and Consumer Protection Law, R.S. 51:1401 et seq. 9:2712. Prohibition; counterletters The use of counterletters that effect the transfer or encumbrance of any public property, the award of any public contract, or the expenditure or receipt of any public funds is prohibited. 9:2713. Contract for surrogate motherhood; nullity A. A contract for surrogate motherhood as defined herein shall be absolutely null and shall be void and unenforceable as contrary to public policy. B. "Contract for surrogate motherhood" means any agreement whereby a person not married to the contributor of the sperm agrees for valuable consideration to be inseminated, to carry any resulting fetus to birth, and then to relinquish to the contributor of the sperm the custody and all rights and obligations to the child. 9:2714. Chiropractors; certain contractual agreements invalid A. The legislature finds that an inequity is foisted on certain chiropractors by the provisions contained in some agreements pertaining to management consultant services to the extent these provisions encourage, promote, facilitate, or require participation in conduct on the part of the chiropractor contrary to the provisions of Chapter 36, Title 37 of the Louisiana Revised Statutes of 1950,[fn1] governing the licensing and conduct of chiropractors. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which encourages, promotes, facilitates, or requires conduct on the part of a chiropractor that is contrary to the provisions of Chapter 36 of Title 37. B. Any provision contained in, collateral to, or affecting an agreement pertaining to chiropractic management consultant services that encourages, promotes, facilitates, or requires a chiropractor to engage in conduct contrary to the provisions of Chapter 36 of Title 37 of the Louisiana Revised Statutes of 1950 is void and unenforceable to the extent that it encourages, promotes, facilitates, or requires such conduct on the part of a chiropractor. C. The term "agreement" as it pertains to chiropractic management consultant services, as used in this Section, means any agreement or understanding, written or oral, concerning the provision of chiropractic management consultant services to chiropractors within the state of Louisiana. D. Any provision in any agreement regarding the provision of chiropractic management consultant services which would frustrate or circumvent the prohibitions of this Section shall be null and void and of no force and effect. E. Repealed by Acts 1992, No. 473, § 2. [fn1] R.S. 37:2801 et seq. CHAPTER 2. REGISTRY OF INSTRUMENTS AFFECTING IMMOVABLES PART I. GENERAL PROVISIONS 9:2721. Filing in office of parish recorder 9:2640. [Repealed by Acts 1986, No. 471, Section 1.] A. No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease, or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated. Neither secret claims or equities nor other matters outside the public records shall be binding on or affect such third parties. B. Anyone who acquires immovable property in this state, whether by sale, sheriff's sale, dation en paiement, or in any other manner, which property is subject to a recorded lease agreement that is not divested by the acquisition, shall take the property subject to all of the provisions of the lease, including any provision for the payment of a commission to a leasing agent or other third party, provided that the lease was recorded prior to the recordation of the document which establishes the rights of the person who acquires the property. Such document shall include, but is not limited to a mortgage, option to purchase, or other writing. 9:2721.1. Recordation of extract of lease A. (1) With respect to leases of immovable property, it shall not be necessary to file the entire lease. In such a case, an extract of the lease may be recorded in the office of the parish recorder of the parish where the immovable property is situated. (2) For purposes of recording an extract of the lease, such an extract shall include: (a) The names and signatures of the lessor and lessee; (b) The date of execution of the lease; (c) A brief description of the leased property; (d) The term of the lease; and (e) A reference to the existence of any renewal or purchase option contained in the lease. B. The provisions of this Section are remedial and shall be applied retroactively to any instrument heretofore filed for record which is in substantial compliance with the provisions of this Section, and such instrument shall affect third persons and third parties as of the date of recordation. 9:2722. Persons protected Third persons or third parties so protected by and entitled to rely upon the registry laws of Louisiana now in force and effect and as set forth in this Chapter are hereby redefined to be and to include any third person or third party dealing with any such immovable or immovable property or acquiring a real or personal right therein as purchaser, mortgagee, grantee or vendee of servitude or royalty rights, or as lessee in any surface lease or leases or as lessee in any oil, gas or mineral lease and all other third persons or third parties acquiring any real or personal right, privilege or permit relating to or affecting immovable property. 9:2723. Operation This Chapter is remedial, and is for the benefit of all such third persons or third parties heretofore as well as those hereafter dealing with immovables or real or personal rights therein on the faith of the public records. 9:2724. Liens or privileges not dependent upon recordation for existence or priority This Chapter shall not derogate from or otherwise affect the existence or priority of any lien or privilege which, under existing law, is not dependent upon recordation for its existence or priority. 9:2725. Certificates of redemption under Federal Tax Lien Act; filing and recording A. Certificates of redemption under the Federal Tax Lien Act of 1966 (Public Law 89-719 of the United States, Title I, Section 109, Title 26, Section 7425 of the United States Code, as it may from time to time be amended), executed by the secretary of the treasury of the United States or his delegate, certifying the redemption by the United States of real or immovable property on which the United States has or claims a lien for taxes, or a title derived from the enforcement of a lien for taxes, which real or immovable property had been sold pursuant to an instrument creating a lien on such property, pursuant to a confession of judgment on the obligation secured by such an instrument, or pursuant to a nonjudicial sale under a statutory lien on such property, may be filed for record in the office of the register of conveyances of the parish in this state in which such real or immovable property is situated, and, when so filed and recorded, shall have effect as of the time of such filing to the same extent as is given by state law to the filing for record and recording, of acts and deeds conveying real or immovable property in this state. B. The same fees allowed by law for the recording of acts and deeds conveying real or immovable property in this State shall apply to such certificates of redemption. C. This section is not intended, and shall not be construed, to create or recognize any right of redemption, the validity and effect of any such right or claimed right of redemption being left to other laws or to the absence of other laws. 9:2726. Attachment and recordation of plats; definitions; penalty A. Each person obtaining a servitude or right of way across private property where the servitude or right of way is obtained for the installation of a facility, or facilities, shall attach to the servitude or right of way agreement a plat, sketch or aerial photograph showing the approximate location of the servitude or right of way and the instrument and plat, sketch or aerial photograph shall be recorded in the conveyance records of the parish in which the private property is situated. B. "Person" as used in this section shall include natural persons, municipalities and parishes and other political subdivisions and agencies and departments thereof, and persons, companies or corporations operating private or public pipelines or private or public utilities. C. "Facilities" as used in this section include waterways and drainage canals and underground, surface and overhead pipelines, sewerage lines, utility lines and electric power lines. D. This section shall not apply to any of the following: (1). public utility servitudes established in a subdivision by the subdivider; (2). service drop wires. E. Failure to record the instrument and plat, sketch or aerial photograph herein required shall render the servitude or right of way agreement ineffective except as between grantor and grantee, their heirs, successors and assigns. F. This section shall apply only to a servitude or right of way obtained after August 1, 1970. 9:2727. Attachment and recordation of plats; expropriations A. The state or its political corporations or subdivisions created for the purpose of exercising any state governmental powers, upon obtaining any immovable property, including servitudes or other rights in or to immovable property for the purpose of constructing and maintaining roads or highways class 1 to 3 as defined by the Louisiana Department of Highways Minimum Design Standards for Rural Highways and Roads, shall attach to the instrument evidencing such acquisition a plat of survey showing the location of the acquisition and the instrument and plat of survey shall be recorded in the conveyance records of the parish in which the property is situated. Where there is a plat of record, reference to same shall satisfy the requirements herein. B. Failure to record the plat of survey herein required shall not render the instrument evidencing such acquisition ineffective. C. This Section shall apply only to property obtained after September 12, 1975. 9:2728. Mortgage certificate for conventional or collateral mortgage; duty to examine for name variations A. A conventional or collateral mortgage shall not be deemed inferior and subordinate to another security device solely by reason of: (1) Its inclusion of, or failure to contain, the middle name or initial of the mortgagor; or (2) The use of any reasonable variation of the mortgagor's name, including but not limited to initials or abbreviations for the mortgagor's given names. B. A mortgage certificate by a clerk of court to determine if an immovable is burdened with any encumbrance shall include a search of the public records for a variation by middle name or initial of the owner's recorded name. PART II. AGREEMENTS FOR EXPLOITATION OF MINERAL INTERESTS 9:2731. Filing An agreement entered into by or among the owners of mineral rights for the joint exploration, development, operation or production of minerals thereunder shall be binding upon third persons when the agreement is filed for registry in the conveyance records of the parish or parishes where the lands affected by the mineral rights are located. 9:2732. Declaration in lieu of agreement In lieu of filing an agreement as provided in R.S. 9:2731 the parties thereto may file a declaration signed by them, or signed by any person designated in the agreement as the general operator or agent of the parties, describing the lands affected by the mineral rights that are the subject of the agreement, stating in general terms the nature or import of the agreement, and stating where the agreement may be found. The recording officer of the parish in which the declaration is filed may copy into his records only the declaration, without the exhibit attached thereto. The declaration when so filed shall serve as full and complete notice of the agreement to the same extent as if the original agreement had been filed and recorded. The recording officer shall charge only the fees for filing and recording the declaration. 9:2733. Recordation of agreement Any person, upon paying the recording officer the fees otherwise fixed by law, may at any time request that the agreement be filed and copied in full into the records and the recording officer shall upon request also note in the margin of the recorded copy of the declaration a reference to the place where the agreement is recorded. CHAPTER 2-A. REGISTRY UNDER COMMERCIAL LAWS 9:2736. Limitation of liability A person who serves as the secretary of state, a filing officer, or as any of their respective officers, deputies, or employees shall not be individually liable for damages caused by any error, act, or omission in the performance of the duties provided in R.S. 10:9-101, et seq., except for grossly negligent acts or omissions or acts of willful or wanton misconduct. 9:2737. Schedule of fees; remittance; method of payment A. The fees set forth in R.S. 10:9-401 through R.S. 10:9-407 and R.S. 10:9-410 shall be allocated as follows: SCHEDULE OF FEES To Be To Be Retained Remitted By To The Filing Secretary Officer of State 1. (a) A $15 fee for an initial filing, an amendment, a continuation, an assignment, or a release $ 8 $ 7 (b) A $5 fee for each additional name or tradename 3 2 (c) A $5 additional fee for an initial filing disclosing an assignment 3 2 (d) A $15 nonstandard form penalty (plus 15 -0- $1 per page for each page in excess of 10 pages) 1 -0- (e) A $25 initial filing fee for mineral or fixture filings 16 10 (f) A $200 initial filing fee for transmitting utility filings 183 17 (g) A $5 fee per affected 3 2 financing statement for a master amendment or a master assignment (plus $1 per affected financing statement in excess of 300) 1 0 2. (a) A $5 fee for a termination 3 2 (b) A $5 nonstandard form penalty 5 -0- (c) A $5 fee for each additional name or tradename 3 2 3. A $15 certificate fee 10 5 B. Beginning in February of 1990, on or before the tenth day of each month, the filing officer shall remit to the secretary of state that portion of the aforementioned fee allocable to the secretary of state which was received by the filing officer during the preceding month. C. Notwithstanding any other provision of law to the contrary, the secretary of state and all filing officers are hereby authorized to establish any method of payment for such fees, including, but not limited to, payment by charge account or credit card. CHAPTER 2-B. REGISTRY 9:2741. Registry by notary outside New Orleans of conveyances and encumbrances of immovables; penalty It shall be the duty of all notaries public within this State, without the limits of the city of New Orleans to deposit in the office of the parish recorder of the parish in which the property is situated within fifteen days, at farthest, after the same shall have been passed, the original of all acts of sale, exchange, donation and mortgage of immovable property passed before them, and in the order of their respective dates, first making a careful record of said acts in their record books. The foregoing provision shall not be so construed as embracing inventories or partitions or any other act required by law to be performed by notaries or parish recorders under any order of court; but the original of all such acts, without being recorded, shall be returned to the court from which the order is issued. All notaries without the limit of the city of New Orleans, who may contravene the provisions of this article, shall be liable to a fine of one hundred dollars for each infraction of the same, to be recovered before any court of competent jurisdiction, one-half for the benefit of the informer, as well as all such damages as the parties may suffer thereby. 9:2742. Recordation of notarial acts by parish recorder The acts of notaries, when deposited in the office of the parish recorder, shall form a part of the archives of his office, and shall be immediately recorded by him as follows: If the act contains a conveyance of immovable property without a mortgage, in a book of conveyances, if it contains a conveyance of immovable property, together with a mortgage, in the aforesaid book of conveyances, and also in a book of conventional mortgages. 9:2743. Acknowledgment of private act prior to recordation The record of an act under private signature, purporting to be a sale or exchange of real property, shall not have effect against creditors or bona fide purchasers, unless, previous to its being recorded, it was acknowledged by the party, or proved by the oath of one of the subscribing witnesses, and the certificate of such acknowledgment be signed by the parish recorder, a notary, or a justice of the peace, and recorded with the instrument. 9:2744. Effect of registry It shall be the duty of the recorder to endorse on the back of each act deposited with him the time it was received by him, and to record the same without delay in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorders. 9:2745. Registry by New Orleans notary of conveyances of immovables; penalty It shall be the duty of the notaries in New Orleans to cause every deed of sale, donation, or any other sort of conveyance of immovable property, passed before them respectively, even when the parties shall agree to dispense therewith, to be registered at the office of [the] register of conveyances for the parish of Orleans, within forty-eight hours after the passage of said acts, and this under the penalty of five hundred dollars fine, to be recovered before any court of competent jurisdiction, for the use and profit of the Charity Hospital, and also under the penalty of being liable for all damages which the parties may suffer through the neglect of said notary to register the acts. 9:2746. Certificate of registry It shall be the duty of the register of conveyances to affix to the act to be enregistered a certificate that he has enregistered the same. 9:2747. Conveyance Office for the Parish of Orleans; register's certificate as evidence It shall be the duty of the register of conveyances of the parish of Orleans, to keep his office in as central a situation as possible, and in a brick house, and to keep his record books open to the inspection of all persons, and to deliver to them certificates of the inscriptions that may have been made, if they require the same. Such certificates, when signed by the register and sealed with the seal of office, which shall be the duty of the register to keep, shall be received in courts of justice in evidence in the same manner as all other public acts. 9:2748. Duties of register of conveyances in Parish of Orleans The register is authorized to open as many records at a time as may be necessary; they shall be numbered and paraphed by a judge of the district. He shall register all acts of transfer of immovable property passed in the parish of Orleans, which shall be presented to him, in the order in which said acts shall have been delivered to him, to be registered. 9:2749. Parish of Orleans, registry of act on certificate of notary In the parish of Orleans, when the act of transfer of property shall have been passed before a notary public, it shall be sufficient that the registering of the act be made, on a certificate being presented from the notary, who shall have passed the act containing: 1. The date of the act, and the place where it was passed. 2. The names, surnames and qualities of the contracting parties. 3. A description of the immovable property which has been transferred, with all necessary details. 4. The price of the transfer, whether paid in ready money, or on time, and in the latter case what the terms and conditions are. 9:2750. Registry of act under private signature In the parish of Orleans, whenever an act of transfer shall have been passed under private signature, the register shall register it in toto, with an act ascertaining the signatures, if the contracting parties wish the registry of the act to be accompanied with an act ascertaining their signatures. 9:2751. Acknowledgment of signatures on private act Whenever an act under private signature shall be taken to the register to be recorded, as required by the preceding article, he may, if thereunto requested by the parties, take an acknowledgment of their signatures, which acknowledgment shall be recorded with the act under private signature. 9:2752. Parish of Orleans, effective date of acts as against third persons In the parish of Orleans, acts, whether they are passed before a notary public or otherwise, shall have no effect against third persons, but from the date of their being deposited in the office of the register of conveyances. 9:2753. Recordation of extract of notarial act Whenever a notary shall neglect to send to the register of conveyances an extract of the act by him passed, the register is authorized, on the production of an authentic copy of the act, to record only an extract thereof, containing the same clauses as are required to be contained in the extracts which notaries are authorized to deliver. 9:2754. Notarial acts concerning immovables, effective date as against third persons No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the officer of the parish recorder, or register of conveyances of the parish where such immovable property is situated. 9:2755. Recordation of judicial sales, matrimonial agreements and judgments affecting immovables All sales of immovable property made by any sheriff or other officer, by virtue of any execution or other order of court; matrimonial agreements affecting immovables within this state; and final judgments affecting immovable property shall be recorded in the parish where the immovable property is situated. 9:2756. Effectiveness of unrecorded acts affecting immovables; effect of subsequent recordation All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording. The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer. 9:2757. Recorder's certified copies of authentic acts and official bonds It shall be the duty of the recorder or other officers having charge thereof, to grant copies of the original acts deposited with them, under their signature and seals of office. When the original acts are authentic, such copies shall be considered legal evidence of their contents. Copies of official bonds, duly certified by the officer in whose office they are required to be filed, shall always be admissible in evidence. 9:2758. Notarial certified copy of lost original When the original title or record is no longer in being, a copy is good proof, and supplies the want of the original, it is certified as being conformable to the record, by the notary who has received it, or by one of his successors, or by any other public officer, with whom the record was deposited and who had authority to give certified copies of it, provided the loss of the original be previously proved. 9:2759. Lost original, certified copy from public record When an original title, by authentic act, or by private signature duly acknowledged, has been recorded in any public office, by an officer duly authorized, either by the laws of this State, or of the United States, to make such record, the copy of such record, duly authenticated, shall be received in evidence, on proving the loss of the original, or showing circumstances supported by the oath of the party, to render such loss probable. CHAPTER 3. PERFORMANCE OF OBLIGATIONS 9:2770 to 9:2770.1. [Blank] 9:2771. Non-liability of contractor for destruction or deterioration of work No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor. 9:2772. Peremptive period for actions involving deficiencies in surveying, design, supervision, or construction of immovables or improvements thereon A. No action, whether ex contractu, ex delicto, or otherwise, including, but not limited to, an action for failure to warn, to recover on a contract or to recover damages shall be brought against any person performing or furnishing land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property: (1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or (2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or (3) If the person performing or furnishing the land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), does not render the services preparatory to construction, or if the person furnishing such services or the design and planning preparatory to construction, does not perform any inspection of the work, more than ten years after he has completed the surveying or the design and planning with regard to actions against that person. B. The causes which are perempted within the time described above include any action: (1) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those preparatory to construction or in the design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property; (2) For damage to property, movable or immovable, arising out of any such deficiency; (3) For injury to the person or for wrongful death arising out of any such deficiency; and (4) Any action brought against a person for the action or failure to act of his employees. (5) Deficiency, as used in this Section includes failure to warn the owner of any dangerous or hazardous condition, regardless of when knowledge of the danger or hazard is obtained or should have been obtained. This peremptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person. C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter). D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Sub-section A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions. E. The peremptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property. F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property. G. Causes of action arising from the performing or furnishing of land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), if not performed preparatory to construction, which exist prior to the effective date of the 1981 Regular Session Amendment to this Section, shall be perempted one year from said date or by the applicable peremptive period established by this Section, whichever is later. H. (1) The peremptive period provided by this Section shall not apply to an action to recover on a contract or to recover damages against any person enumerated in Subsection A of this Section, whose fraud has caused the breach of contract or damages sued upon. The provisions of this Subsection shall be retroactive. (2) In any such action in which fraud is alleged, that issue shall be decided by trial separate from and prior to the trial of any or all other issues. (3) Fraud, as used in this Section, shall have the same meaning as provided in Civil Code Article 1953. I. Nothing in this Section shall be construed as limiting or modifying the non-liability of contractors for destruction or deterioration of, or defects in any work, as provided in R.S. 9:2771. 9:2773. Limitations on the responsibility of agents, contractors and representatives A. It is the public policy of the state that the responsibility which may be imposed on an agent, contractor, or representative by reason of the responsibility of proprietors under Article 667 of the Louisiana Civil Code shall be limited solely to the obligation of such agent, contractor, or representative to act as the surety of such proprietor in the event the proprietor is held to be responsible to his neighbor for damage caused him and resulting from the work of such agent, contractor, or representative, and only in the event the proprietor is unable to satisfy any claim arising out of such damage. The agent, contractor, or representative who is responsible for damages, as limited by this Section, shall have a right of action against the proprietor for any damages, costs, loss or expense which he may suffer in his capacity as the surety of the proprietor. B. Nothing in this Section shall be construed to relieve a contractor of any liability which he may incur as a result of his own negligence or the improper performance of the work performed under the construction contract. C. The provisions of this Section shall apply to all construction agreements entered into after the effective date hereof and may be waived by the contractor. 9:2774. Guarantees and warranties in construction specifications A. The guarantee and warranty period of all construction contracts shall commence on the date certified by the architect or engineer as the date the prime contract(s) has (have) been substantially completed in accordance with plans and specifications, or beneficially used by the owner, whichever first occurs. B. The provisions of this Section shall not be subject to waiver by contract. 9:2775. Construction projects; equipment and machinery contracts; certain provisions invalid A. Any provision in a contract for the sale of equipment or machinery to be incorporated in a construction project, as hereinafter defined, which excludes liability for consequential damages is null and void. B. (1) For the purposes of this Section the term "construction project" shall mean any residential or commercial project for the improvement, construction, modification, or repair of a fixed land based structure, or commercial project. (2) The term " construction project" shall not include industrial or agricultural projects including but not limited to: (a) Shipbuilding; (b) Energy conversion or generation; (c) Forestry; (d) Paper production; (e) Sugar production; (f) Chemical or petrochemical production; (g) Fixed platform fabrication; (h) Mineral extraction, drilling, production, refining, development, transportation, or fabrication; or (i) Any projects constructed at the sites where such activities are being, or are to be conducted. (j) Public sewerage, water treatment, or pumping facility. C. "Consequential damages" are defined as loss of revenue, production, profits, use, rental income, or cost of replacement facilities, equipment and/or product, as may be applicable. 9:2776. Acceptance of funds to procure legal representation; accounting Any person who accepts funds to procure representation for another and also owns an interest in the cause of action, upon the written request of any person who advanced funds shall provide that person with a complete accounting in writing within sixty days of receipt of such request. 9:2777. [Blank] 9:2778. Public contracts; certain provisions invalid A. The legislature finds that with respect to public contracts involving the state or a political subdivision of the state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state. B. The legislature hereby declares null, void, unenforceable, and against public policy, any provision in a contract, subcontract, or purchase order, as described in Subsection A, which either: (1) Requires a suit or arbitration proceeding to be brought in a forum or jurisdiction outside of this state. (2) Requires interpretation of the agreement according to the laws of another jurisdiction. C. The provisions of this Section shall apply to public contracts, as described in this Section, entered into on or after June 30, 1992. 9:2779. Construction contracts, subcontracts, and purchase orders; certain provisions invalid A. The legislature finds that, with respect to construction contracts, subcontracts, and purchase orders for public and private works projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construction projects in this state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state. B. The legislature hereby declares null and void and unenforceable as against public policy any provision in a contract, subcontract, or purchase order, as described in Subsection A, which either: (1) Requires a suit or arbitration proceeding to be brought in a forum or jurisdiction outside of this state; rather, such actions or proceedings may be pursued in accordance with the Louisiana Code of Civil Procedure or other laws of this state governing similar actions. (2) Requires interpretation of the agreement according to the laws of another jurisdiction. C. The provisions of this Section apply to contracts, subcontracts, and purchase orders, as described in Subsection A, entered into on or after September 6, 1991. D. Notwithstanding any other provisions of law to the contrary, the provisions of this Section shall not apply to negotiated labor contracts. 9:2780. Certain indemnification agreements invalid A. The legislature finds that an inequity is foisted on certain contractors and their employees by the defense or indemnity provisions, either or both, contained in some agreements pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state to the extent those provisions apply to death or bodily injury to persons. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee. B. Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of or resulting from death or bodily injury to persons, which is caused by or results from the sole or concurrent negligence or fault (strict liability) of the indemnitee, or an agent, employee, or an independent contractor who is directly responsible to the indemnitee. C. The term "agreement," as it pertains to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, as used in this Section, means any agreement or understanding, written or oral, concerning any operations related to the exploration, development, production, or transportation of oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, including but not limited to drilling, deepening, reworking, repairing, improving, testing, treating, perforating, acidizing, logging, conditioning, altering, plugging, or otherwise rendering services in or in connection with any well drilled for the purpose of producing or excavating, constructing, improving, or otherwise rendering services in connection with any mine shaft, drift, or other structure intended for use in the exploration for or production of any mineral, or an agreement to perform any portion of any such work or services or any act collateral thereto, including the furnishing or rental of equipment, incidental transportation, and other goods and services furnished in connection with any such service or operation. D. (1) The provisions of this Section do not affect the validity of any insurance contract, except as otherwise provided in this Section, or any benefit conferred by the worker's compensation laws of this state, and do not deprive a full owner or usufructuary of a surface estate of the right to secure an indemnity from any lessee, operator, contractor, or other person conducting operations for the exploration or production of minerals on the owner's land. (2) Any language in this Section to the contrary notwithstanding, nothing in this Section shall affect the validity of an operating agreement or farmout agreement, as defined herein, to the extent that the operating agreement or farmout agreement purports to provide for defense or indemnity as defined in Subsection B of this Section. This exception shall not extend to any party who physically performs any activities pursuant to any agreement as defined in Subsection C of this Section. For purposes of this Subsection, operating agreement and farmout agreement shall be defined as follows: (a) "Operating agreement" means any agreement entered into by or among the owners of mineral rights for the joint exploration, development, operation, or production of minerals. (b) "Farmout agreement" means any agreement in which the holder of the operating rights to explore for and produce minerals, the "assignor", agrees that it will, upon completion of the conditions of the agreement, assign to another, the "assignee", all or a portion of a mineral lease or of the operating rights. E. This Section shall have no application to public utilities, the forestry industry, or the sulphur industry, so long as the work being performed is not any of the operations, services, or activities listed in Subsection C above, except to the extent those operations, services, or activities are utilized in the sulphur industry. F. The provisions of this Section do not apply to loss or liability for damages, or any other expenses, arising out of or resulting from: (1) Bodily injury or death to persons arising out of or resulting from radioactivity; or (2) Bodily injury or death to persons arising out of or resulting from the retainment of oil spills and clean-up and removal of structural waste subsequent to a wild well, failure of incidental piping or valves and separators between the well head and the pipelines or failure of pipelines, so as to protect the safety of the general public and the environment; or (3) Bodily injury or death arising out of or resulting from performance of services to control a wild well so as to protect the safety of the general public or to prevent depletion of vital natural resources. The term "wild well," as used in this Section, means any well from which the escape of salt water, oil, or gas is unintended and cannot be controlled by the equipment used in normal drilling practices. G. Any provision in any agreement arising out of the operations, services, or activities listed in Subsection C of this Section of the Louisiana Revised Statutes of 1950 which requires waivers of subrogation, additional named insured endorsements, or any other form of insurance protection which would frustrate or circumvent the prohibitions of this Section, shall be null and void and of no force and effect. H. The provisions of this Act do not deprive a person who has transferred land, with a reservation of mineral rights, of the right to secure an indemnity from any lessee, operator, contractor, or other person conducting operations for the exploration or production of minerals in connection with the reserved mineral rights; provided such person does not retain a working interest or an overriding royalty interest convertible to a working interest in any production obtained through activities described in Subsection C of this Section. I. This Act shall apply to certain provisions contained in, collateral to or affecting agreements in connection with the activities listed in Subsection C which are designed to provide indemnity to the indemnitee for all work performed between the indemnitor and the indemnitee in the future. This specifically includes what is commonly referred to in the oil industry as master or general service agreements or blanket contracts in whatever form and by whatever name. The provisions of this Act shall not apply to a contract providing indemnity to the indemnitee when such contract was executed before the effective date of this Act and which contract governs a specific terminable performance of a specific job or activity listed in Subsection C. 9:2781. Open accounts; attorney fees; professional fees; open account owed to the state A. When any person fails to pay an open account within fifteen days after receipt of written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant's attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor. B. If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished, along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor. If the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor. C. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, "open account" includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. "Open account" shall include debts incurred for professional services, including, but not limited to, legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state. D. As used in this Section, "person" means an individual, association, corporation, partnership, trust, or any other public or private legal entity. 9:2781.1. Real estate broker privilege on commercial real estate; definition; recordation; ranking; collection of open account A. A special privilege affecting the interest of the person with whom he has contracted is hereby granted to a licensed real estate broker for the amount of his commission on all commercial real estate for which he negotiates the sale, exchange, purchase, lease, transfer, or other act of conveyance, pursuant to a written agreement between the broker asserting the privilege and a person having legal capacity to transfer or acquire an interest in the real estate. B. Valid recorded privileges and all mortgages, whether recorded prior or subsequent to, shall have priority over a broker's privilege, including but not limited to: (1) Valid materialman's or laborer's liens which are recorded subsequent to the broker's privilege but which related back to a date prior to its recordation. (2) All mortgages, whether to secure revolving credit, future advances, construction loans, including all renewals thereof, even if the renewals are evidenced by an entirely new mortgage and the old mortgage is cancelled. (3) All vendor's liens. C. (1) A notice of broker privilege shall be filed at least five days prior to the sale in the parish in which the commercial real estate is located. Such notice shall also be given to the purchaser by certified mail at least five days prior to the sale. (2) The person claiming a privilege shall commence proceedings by filing a complaint within one year after the filing of the notice. The failure to do so shall extinguish the lien. No subsequent notice shall be given for the same claim, nor shall that claim be asserted in any proceeding under this Section. (3) A complaint may be withdrawn by the mutual consent of the person claiming the privilege and any other party or parties to the written agreement specified in Subsection A. (4) The privilege may be released by the posting of a bond or other assets with the court sufficient in value to cover the full value of the claim. This escrowed amount shall be disbursed by the court upon the finality of a judicial decision and in a manner consistent with the decision. D. The commission owed a real estate broker as provided in Subsection A of this Section is an "open account" for purposes of R.S. 9:2781. E. As used in this Section, "commercial real estate" means real estate as defined in R.S. 37:1431(6), but does not include single family residential units such as condominiums, townhouses, or houses in a subdivision when sold, leased, transferred, or otherwise conveyed on a unit by unit basis or in units of six or fewer, real estate on which no building or other structure is permanently attached, real estate classified as farmland for assessment purposes, or residential real estate as defined in the federal Real Estate Settlement Procedures Act. F. If pursuant to this Section a broker acquires rights and receives prepaid commissions and the transaction which gives rise to the right to receive such commissions fails as a result of the fault of the broker, the broker shall return the unearned prepaid commissions. 9:2782. Nonsufficient fund checks; damages, attorney fees A. Whenever any drawer of a check dishonored for nonsufficient funds fails to pay the obligation created by the check within thirty days after receipt of written demand for payment thereof delivered by certified or registered mail, the drawer shall be liable to the payee or a person subrogated to the rights of the payee for damages of twice the amount so owing, but in no case less than one hundred dollars plus attorney fees and court costs. B. The payee may charge the drawer of the check a service charge not to exceed fifteen dollars or five percent of the face amount of the check, whichever is greater, when making written demand for payment. C. (1) Before any recovery under Subsection A of this Section may be claimed, a written demand in substantially the form which follows shall be sent by certified or registered mail to the drawer of the check at the address shown on the instrument: "Your are hereby notified that a check numbered __________, issued by you on _____________ (date), drawn upon _________________, (name of bank), and payable to ___________________, has been dishonored. Pursuant to Louisiana law, you have thirty days from receipt of this notice to tender payment in full of the amount of the check plus a service charge of fifteen dollars or five percent of the face amount of the check, whichever is greater, the total amount due being ______________. Unless this amount is paid in full within the thirty-day period, the holder of the check may file a civil action against you for two times the amount of the check or one hundred dollars, whichever is greater, plus any court costs and reasonable attorney fees incurred by the payee in taking the action." (2) Notice mailed by certified or registered mail evidenced by return receipt to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making the check. (3) It shall be prima facie evidence that the drawer knew that the instrument would not be honored if notice mailed by certified or registered mail is returned to the sender when such notice is mailed within a reasonable time of dishonor to the address printed on the instrument or given by the drawer at the time of issuance of the check. 9:2782.1. Posting of nonsufficient fund checks Whenever a check is dishonored for nonsufficient funds and is returned to any one who accepted the check from the original maker of the check in exchange for anything of value, the person holding the unpaid check may publicly post the check or a photograph of the maker of the check on the business premises that received the check after six months has elapsed from the date the check was returned dishonored if the check has remained unpaid and the holder of the unpaid check has mailed notice to the maker of the check at the address on the check by registered mail not more than ten days before the elapse of the sixty days that the check remains unpaid and that a copy of the check or a photograph of the maker will be publicly posted on the business premises that received the check. 9:2783. Public parking meters; unattended private parking lots Notwithstanding any provision of law to the contrary, the leaving or parking of a vehicle by any person at a parking meter operated by any municipality or other political subdivision or at any privately owned unattended parking lot, when such parking lot has signs prominently displayed informing customers that the lot is unattended, and when the owner retains the keys, shall not give rise to a contract of deposit but only to one of hiring or letting out space, and neither the political subdivision nor the parking lot owner shall thereby incur the obligations or the responsibilities of a depositary for losses as a result of theft, vandalism, or property damage. 9:2784. Late payment by contractors to subcontractors and suppliers; penalties A. When a contractor receives any payment from the owner for improvements to an immovable after the issuance of a certificate of payment by the architect or engineer, or when a contractor receives any payment from the owner for improvements to an immovable when no architect or engineer is on the job, the contractor shall promptly pay such monies received to each subcontractor and supplier in proportion to the percentage of work completed prior to the issuance of the certificate of payment by such subcontractor and supplier, or by the owner if no architect or engineer is on the job. Further, whenever a subcontractor receives payment from the contractor, the subcontractor shall promptly pay such monies received to each sub-subcontractor and supplier in proportion to the work completed. B. If for any reason the contractor receives less than the full payment from the owner, then the contractor shall be obligated to disperse only the funds received on a prorated basis with the contractor, subcontractors, and suppliers each receiving a prorated portion based on the amount due on the payment. C. If the contractor or subcontractor without reasonable cause fails to make any payment to his subcontractors and suppliers within fourteen consecutive days of the receipt of payment from the owner for improvements to an immovable, the contractor or subcontractor shall pay to the subcontractors and suppliers, in addition to the payment, a penalty in the amount of one-half of one percent of the amount due, per day, from the expiration of the period allowed herein for payment after the receipt of payment from the owner. The total penalty shall not exceed fifteen percent of the outstanding balance due. In addition, the contractor or subcontractor shall be liable for reasonable attorney fees for the collection of the payments due the subcontractors and suppliers. However, any claim which the court finds to be without merit shall subject the claimant to all reasonable costs and attorney fees for the defense against such claim. D. The provisions of this Section shall not be applicable to improvements to an immovable that is used for residential purposes. CHAPTER 4. DEATH OF A PARTY 9:2785. Death of either party when obligation personal as to both An obligation to pay an annuity to a certain person during the life of the obligor, is personal as to both, and is extinguished by the death of either. 9:2786. Death of legatee before performance of personal obligation imposed on legacy A merely personal obligation to do, imposed by testament as the condition on which a legacy is to take effect, is void, if the legatee die before performance, or before he has been put in default; but the legacy will take effect. 9:2787. Heritable obligations imposed on legacies But if what is to be done, be a thing that can as well be done by the heirs of the legatee as by him, the obligation shall be heritable, and they must perform it before the legacy can take effect. The provisions of this and the preceding article relate only to testamentary dispositions. CHAPTER 5. INTEREST UPON ACCRUED INTEREST; EXCEPTIONS 9:2788. [Redesignated as R.S. 9:3509.2; See Acts 1986, No. 584, Section 3.] [Redesignated as R.S. 9:3509.2; See Acts 1986, No. 584, Section 3.] CHAPTER 6. INTEREST-BEARING DEPOSIT ACCOUNTS 9:2789. Interest-bearing deposit accounts No person other than the owner of the monies deposited in any interest-bearing account funded with deposited monies belonging to third persons as identified in accordance with the provisions of R.S. 6:317 may receive the interest earnings, as provided under Civil Code Art. 510, on those monies. 9:2789.1 to 9:2789.10. [Blank] 9:2789.11 to 9:2790. [Reserved]