USA – LOUISIANA Law and Practice Contributed by: Jeffrey P. Good, Susan M. Tyler and B. Trevor Wilson, Jones Walker LLP
While “innocent landowner” status entitles the purchaser 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 com - mon in many transactions, and confirmation of whether there is a risk of substances migrating from offsite onto the property may only be deter - mined 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 con - ditions that exist before the sale, and the buyer is responsible for environmental conditions that arise after the sale. However, this is often negoti - ated. 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 zoning designation and permit - ted uses. Local governing bodies will also pro - vide a zoning verification letter. In addition to zoning ordinances, a buyer should determine whether the property is subject to a historical district, which may restrict the construction or renovation of improvements. New Orleans has recently adopted mandatory inclusionary hous - ing requirements. Planned unit developments (PUDs) are provided for under many local zoning ordinances, but are often limited to larger sites. Most parishes and municipalities have imple - mented online permit application and tracking systems, making the process more transparent
and efficient. Development agreements or com - munity benefits agreements with local authori - ties are increasingly common for larger projects. 2.9 Condemnation, Expropriation or Compulsory Purchase Public bodies and certain quasi-public enti - ties, such as utilities, have the authority – after good-faith efforts to negotiate for the purchase of property – to expropriate property that is nec - essary for public purposes, pursuant to specific statutory authority. A property owner whose land is expropriated is entitled to compensation. Louisiana law also provides an expedited taking mechanism by which the Department of Trans - portation and Development can expropriate pri - vate property needed for “highway purposes” that cannot otherwise be acquired amicably. The expropriation process typically begins with an appraisal commissioned by the condemn - ing authority, 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 publica - tion, 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 depend - ing on the number of pages. The statute also provides that, if a conveyance and mortgage are dated the same day, the tax will be waived for one of the instruments. Each parish has estab - lished formatting requirements, which incur a nominal fee for failure to comply.
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