The question often arises whether, in Louisiana, a party can file in the public record a “memorandum of servitude” rather than the full servitude. If the parties do that, any unrecorded provisions may not be binding on third parties. Other states’ laws may provide that recordation of such a memorandum of easement, the common law equivalent of a servitude, suffices to bind third parties to all the provisions in the unrecorded easement. Under Louisiana public records doctrine, however, one’s interest in immovables must be recorded in order to have binding effect on third parties. La. Civ. Code art. 3338. Louisiana provides specifically for the recordation of a memorandum of lease, often referred to as a notice of lease. La. Rev. Stat. 9:2742. That statute specifically states that the recorded memorandum affects third parties “to the same extent as would recordation of the instrument evidencing it.” While the memorandum in lease must include certain specific information, e.g. names of the parties, description of the property, the term of the lease, and others specifics, the agreed upon price is an important provision that will remain out of the public record. There is no similar provision allowing the parties to record a memorandum of servitude. Under Louisiana law, when there is no rule that can be derived from legislation or custom, the courts provide guidance on the particular situation. La. Civ. Code art. 4. However, some parties nevertheless have filed a memorandum of servitude in place of the actual servitude agreement and, to date, there are no reported opinions in Louisiana on the effectiveness of recording a memorandum of servitude. While parties are free to record a memorandum of servitude in place of the servitude agreement, they run the risk that the memorandum will not bind third parties to the same extent as recording the instrument itself.
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