Opinion Number

Dear Mr. Burton:

We received your request for our opinion on behalf the Beauregard Parish School Board. According to the information provided in the request, the school board is considering selling two parcels of immovable property, non-sixteenth section lands, and the buildings located thereon owned by it. The property is currently used to house offices of the board. The school board would like to use the revenue generated from the sale to construct new offices at a different location.

You question if, pursuant to La.R.S. 41:891, the school board must determine that the property at issue is no longer needed for school purposes prior to the sale or may it simply anticipate that it will no longer be needed once the sale is complete and the new facilities are constructed. La.R.S. 41:891 provides as follows:

Whenever the school board of any parish or city determines that any school lands or other immovable property under its control are no longer needed for school purposes and that the best interest of the public school system would be served by the sale of such lands, the school board shall have authority to dispose of such lands at public auction or under sealed bids in accordance with the procedure set forth in this subpart; provided that this subpart shall not apply to the sale of sixteenth section lands, school indemnity lands or any other school lands for the sale of which the law already has provided a procedure in Chapter 6 of Title 41 of the Louisiana Revised Statutes or elsewhere in the law.

When a law is clear, there is no need to look for further interpretation. This statute quite clearly provides that the determination of the school board that the lands at issue are no longer needed for school purposes and that the best interest of the public school system would be served by the sale of such lands precedes the actual sale of the property. The procedure to be followed for such a sale is outlined in La.R.S. 41:892.

Therefore, it is our opinion that La.R.S. 41:891 clearly mandates that the determination by the school board that the lands at issue are no longer needed for school purposes and that the best interest of the public school system would be served by the sale of them precedes the actual sale of the property. Thus, the Beauregard Parish School Board must make such a determination prior to the sale. It may not simply anticipate that the lands at issue will no longer be needed once the sale is complete and the new facilities are constructed.

You further ask if the school board may continue to use the lands after the sale until such time as the new facilities are completed. We considered this very same issue in Atty. Gen. Op. No. 99-134. A copy is attached for your review. We opined that a school board could retain possession of property which it sold for a period of two years after the sale. The continued use of the property is simply a valid term and/or condition of the sale which the parties may in their discretion establish.

In sum, the Beauregard Parish School Board must determine that the lands at issue are no longer needed for school purposes as per La.R.S.41:891 before it actually sells the property. The parties to the sale may agree that the school board may continue to use the property until new facilities are constructed.

We trust that this adequately responds to your request. If you have any questions or comments, please contact our office.

With kindest regards,

Very truly yours,

RICHARD P. IEYOUB Attorney General

BY: TINA VICARI GRANT Assistant Attorney General

RPI/TVG/dam

OPINION NUMBER 99-134

May 24, 1999

97 School School Districts — Property, Contracts, Etc. R.S. 41:891 892

A school board may provide, as part of the terms and conditions of the sale of unused non-16th Section lands, that the lands be sold for a price in excess of the appraised value thereof, and that the purchaser shall not take possession of the lands for a period of two years after the sale.

Mr. Olden C. Toups, Jr. Attorney at Law 234 Huey P. Long Avenue P. O. Box 484 Gretna, LA 70054

Dear Mr. Toups:

You have requested an opinion of the Attorney General, in your capacity as Legal Counsel for the Jefferson Parish School Board (Board), regarding the sale of unused school lands pursuant to R.S. 41:891, et seq. You specifically ask whether the Board can offer for public sale non-16th Section lands at a minimum price which exceeds the land's appraised and/or fair market values, and reject any and all bids failing to meet this price. You also ask whether the Board can sell this land subject to the requirement that the purchaser cannot take possession until two years after the sale.

In answer to your first question, we refer you to the R.S. 41:891 and 892. Section 891 provides, in pertinent part, the following:

§ 891. Sale of unused school lands

Whenever the school board of any parish or city determines that any school lands or other immovable property under its control are no longer needed for school purposes and that the best interest of the public school system would be served by the sale of such lands, the school board shall have authority to dispose of such lands at public auction or under sealed bids in accordance with the procedures set forth in this subpart; provided that this subpart shall not apply to the sale of sixteenth section lands.

The procedures to be followed for the sale of unused school lands are set forth in Section 892. It provides that the sale by public auction or sealed bids must be made by the president of the school board, but only after meeting minimum advertising requirements. Section 892 stipulates that, "The property shall be sold to the highest bidder upon such terms and conditions as the school board shall determine". It further provides that the school board shall reserve the right to reject any and all bids, and all bids shall be rejected in the event that the highest bid is not equal to the appraised value of the property to be sold.

As noted above, the law provides that the property shall be sold to the highest bidder upon such terms and conditions as the school board shalldetermine. It is our opinion that this language clearly authorizes the Board to establish, as a minimum price, one that exceeds the appraised and/or fair market values. Should no bids be received that equal or exceed this minimum price, all bids may be rejected.

We are of the opinion that Section 892 establishes the appraised value of school lands as a minimum acceptable price for the sale thereof. It does not prohibit the Board from fixing a price in excess of this statutory minimum. To the contrary, such a price would constitute a "term and condition of the sale" which Section 892 leaves to the determination of the Board. We turn now to your second question, to wit: May the Board retain possession of the property for a period of two years after the sale?

Article 2477 of the Louisiana Civil Code provides that the delivery of an immovable is deemed to take place upon execution of the writing that transfers its ownership. Article 2480 further provides that when the thing sold remains in the corporeal possession of the seller, the sale is presumed to be a simulation. However, the jurisprudence of this state has recognized that a clause in a contract of sale which preserves to the vendor the privilege of remaining on the property for a relatively short duration, evidences nothing more than a right of use and habitation, and does not prevent the contract from taking effect as a sale. Chenevert v.Lemoine, et al., 27 So. 56 (1900) and Mut v. Mut 222 So.2d 100 (La.App. 1st Cir. 1969).

It should be noted that, under Article 2467 of the Louisiana Civil Code, the risk of loss of the thing sold due to a fortuitous event transfers to the seller from the buyer at the time of delivery. This should be taken into consideration for purposes of the proposed transaction.

Accordingly, it is the opinion of this office that, as long as valid consideration is received by the Board from the prospective purchaser, the sale is valid despite the fact that the vendor will retain possession of the property for a period of two years after that sale. This would, again, appear to be a valid term and/or condition of the sale which the Board may, in its discretion, establish.

Obviously, these two conditions may adversely affect the marketability of the property, a factor which the Board must also consider.

Trusting this adequately responds to your inquiries, I am

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: _______________________________________________ ROBERT E. HARROUN, III
Assistant Attorney General

RPI/Rob3/sfj