USA – LOUISIANA Law and Practice Contributed by: Jeffrey P. Good, Susan M. Tyler, B. Trevor Wilson and Parker Hufft, Jones Walker LLP
with the American Society for Testing and Materials (ASTM) legal standards, the purchaser will be enti - tled to an “innocent landowner” defence to clean up liability under federal (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 42 USC 9607 (b)) and state law (Louisiana Revised Statutes Section 30:2271, et seq). “Innocent landown - er” status means the owner has no legal obligation to clean up the property from offsite environmental conditions. If the owner later finds evidence of con - tamination, they are required to report to the Louisiana Department of Environmental Quality and allow that agency to access the property. While “innocent landowner” status entitles the pur - chaser to a defence to clean-up liability, it is not a defence to toxic tort liability – eg, vapour intrusion resulting from substances that may have migrated from offsite. This risk is common in many transactions, and confirmation of whether there is a risk of sub - stances migrating from offsite onto the property may only be determined by obtaining a Phase II report. Purchase and sale agreements typically allocate risk for environmental liability in such a way that the seller is responsible for environmental conditions that exist before the sale, and the buyer is responsible for envi - ronmental conditions that arise after the sale. How - ever, this is often negotiated. 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law Zoning and planning laws vary by municipality and parish. Many cities and parishes, including the City of New Orleans and East Baton Rouge Parish, have online portals with zoning maps and copies of the current local zoning ordinance to determine the zon - ing designation and permitted uses. Local governing bodies will also provide a zoning verification letter. In addition to zoning ordinances, a buyer should deter - mine whether the property is subject to a historical district, which may restrict the construction or reno - vation of improvements. For example, New Orleans has adopted mandatory inclusionary housing require - ments through its mandatory inclusionary zoning pro - gramme.
Planned unit developments (PUDs) are provided for under many local zoning ordinances, but are often limited to larger sites. Most parishes and municipalities have implemented online permit application and tracking systems, mak - ing the process more transparent and efficient. Devel - opment agreements or community benefits agree - ments with local authorities are increasingly common for larger projects. 2.9 Condemnation, Expropriation or Compulsory Purchase Public bodies and certain quasi-public entities, such as utilities, have the authority – after good-faith efforts to negotiate for the purchase of property – to expro - priate property that is necessary for public purposes, pursuant to specific statutory authority. A property owner whose land is expropriated is entitled to com - pensation. Louisiana law also provides an expedited taking mechanism by which the Department of Trans - portation and Development can expropriate private property needed for “highway purposes” that cannot otherwise be acquired amicably. The expropriation process typically begins with an appraisal commissioned by the condemning author - ity, followed by a formal offer to the property owner. If negotiations fail, the authority may file a petition for expropriation in the district court where the property is located. 2.10 Taxes Applicable to a Transaction Stamp Tax Recording fees are set by state law and are generally based on the number of pages or established as flat fees. At the time of publication, only Orleans Parish charges a documentary stamp tax on the conveyance or encumbrance of immovable (real) property; this is a minimum of USD325, increasing up to USD2,525 depending on the number of pages. The statute also provides that, if a conveyance and mortgage are dat - ed the same day, the tax will be waived for one of the instruments. Each parish has established formatting requirements, which incur a nominal fee for failure to comply.
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