The following information is meant to provide general information, and does not constitute legal advice or opinion. Parties should seek legal counsel before seeking court redress.

General Landlord/Tenant Law Basics Civil Code Articles 2668 et seq.

 

In a lease, two parties contract with one another whereby the Lessor (Landlord) binds himself to the Lessee (Tenant) for the use and enjoyment of a thing for a term and in exchange for a rent that Tenant agrees to pay. The Landlord has the following basic obligations: to deliver the premises to the Tenant, to maintain the premises in a condition suitable for the purposes for which it was leased (usually as a residence or business), and to protect the Tenant’s peaceful possession for the duration of the lease. This last obligation should not be misunderstood to mean a Landlord has to keep a Tenant safe from harm. Instead, it means the Landlord has the obligation to maintain and keep Tenant in legal possession of the property.

 

The Tenant has the obligation to pay the rent according to the terms of the lease, to use the premises as a prudent administrator and for the purposes intended, and to return the premises at the end of the lease in the same condition it was at the beginning of the lease term, less normal wear and tear. Those basic obligations between the parties are what the Civil Code generally requires. However, the parties may depart from those obligations as long as their agreement is not contrary to public policy. For example, a Tenant can assume some or all obligations of maintenance. While a written contract is not necessary, it is advisable to put the obligations in writing so the parties understand their respective duties.

 

It is fairly unusual for a Landlord to have a problem delivering the premises. Also, keeping the Tenant in legal possession isn’t usually a problem. If a Tenant receives notice that a foreclosure proceeding has been initiated against the Landlord, technically the Tenant still has possession. It isn’t until the property is sold at Sheriff’s Sale that a breach of Landlord’s obligation to protect Tenant’s peaceful possession has occurred. By far, the biggest complaints by Tenants against Landlords have to do with maintenance. Unless otherwise provided in the contract of lease, the Landlord should maintain the premises, except those repairs for which the Tenant caused and is responsible. The Landlord has the right to make an immediate repair even if it’s inconvenient to the Tenant. If the repair interferes with the Tenant’s use of the premises, the Tenant may seek a reduction of the rent (commonly referred to as concession). If the repair significantly impairs the Tenant’s use of the premises, the Tenant may seek a dissolution of the lease, depending on all the circumstances, including each party’s fault or responsibility for the repair, length of the repair period, and the extent of the loss of use. Generally, the way to handle repairs is for the Tenant to notify Landlord in writing (not a mere phone call) of what needs to be repaired, and presuming it’s a needed repair that wasn’t caused by Tenant, the Landlord has a reasonable amount of time to make the repair. If the repair isn’t made, then Tenant can make the repair at his expense and demand immediate reimbursement or withhold the cost of the repair from next month’s rent. However, the repair has to be necessary and the amount expended has to be reasonable.

 

In contrast, Landlords typically complain that a Tenant has failed to pay rent, or is not using the premises as a prudent administrator and in accordance with the purpose of the lease. Closely following is a complaint of how the premises were left once the Tenant vacated the unit. There are any number of other contract violations that might cause a Landlord to seek dissolution of the lease and regain possession of the premises: failure to maintain utilities, criminal behavior, disturbing others, failure to adhere to rules, and so forth. Tenants should understand they do not own the premises, but are merely using the premises.

 

Breach of Lease Remedies

 

A lease is a contract, and therefore, either party can sue the other for breach of contract for failing to perform the contractual obligations outlined above. Failure of Landlord or Tenant to fulfill lease obligations entitles the other party to ask the court to dissolve the lease relationship. Usually, Landlords file an eviction proceeding when a Tenant fails to pay rent or commits some other breach of contract to merit formally dissolving the lease relationship. Likewise, a Tenant can also file suit to enforce rental obligations, seek damages from Landlord’s failure to perform his obligations, and also seek dissolution of the lease relationship.

 

Normally, while a Tenant’s failure to pay rent is an “active” breach of the lease and entitles Landlord to seek dissolution, that right is subject to judicial control according to the circumstances. However, dissolution of leases is not favored by law. If Landlord accepts rent “late enough and long enough,” the Landlord will not be permitted to cancel the lease unless it gives prior notice that it intends to enforce the payment provisions in a strict manner. This rule doesn’t hold true where the Landlord has made frequent and unsuccessful demands for the rent or where acceptance of tardy payments is because of unwilling and forced indulgence on the Landlord’s part. There is no “self help” allowed the Landlord (locking the doors, etc.) except in cases where the Tenant has abandoned the property. Since abandonment is a question of fact, Landlords should be proceed cautiously in the event they believe premises have been abandoned. All parties should be familiar with their lease terms and conditions. The lease is the “law between the parties” except in some items where general Civil Code Articles may apply. Do not call the Court and ask for legal advice or opinions as to what a lease means, or ask the court to comment on your “situation.”

 

EVICTION PROCEDURES – CCP ART. 4701 ET SEQ.

 

When there has been a significant breach of lease obligations by the Tenant (such as failure to pay rent timely), the Landlord has several remedies, each of which are mutually exclusive:

 

A. File a Rule for Eviction to gain possession of the premises. By taking this approach, the Landlord can not seek future rent - only the amount of rent incurred while the tenant occupies the unit. The Rule for Eviction is summary in nature, and usually the hearing is held quickly. The Landlord may also file a separate suit for any past due rent and the rent that will accrue up through the point the Tenant has possessed the unit. This is an ordinary action, must be served and answered, and takes longer to resolve.

 

B. Sue for accrued rentals and accelerate future rentals. This means the Tenant maintains possession of the property, and the Landlord may enforce the judgment as any other money judgment, ie, garnishments, seizures, etc. In essence, the Landlord is turning the rent obligation into a money judgment. However, the Tenant maintains possession of the unit, and the Landlord is relegated to collecting the amount of the money reflected in the judgment.

 

C. If the premises are abandoned, Landlord may sue for accrued and future rents, but Landlord has the obligation to re-rent the unit, and then must credit Tenant with rent received from new tenant. In fact, the Landlord steps into the shoes of the Tenant and basically acts as a sub-lessor. Therefore, any rent collected during the period the Tenant should have been in the unit is credited towards any amounts owed by the Tenant.

 

By and large, most residential rentals involve option A, without a separate suit for recovery of accrued rentals. Before a Landlord my initiate formal eviction proceedings in court, the Landlord must give the Tenant a 5 day “Notice to Vacate”.  The notice must be in writing, not a text or email. (The LA Uniform Electronic Transactions Act, LSA-R.S. 9:2601 et seq, does not apply. See 9:2603B(4)(b)(ii)). That is five business days, exclusive of holidays, and the day the Notice is given is not counted as one of the five days. For example, if the Tenant is given the Notice on Monday, the five counting days are Tuesday, Wednesday, Thursday, Friday, (Saturday and Sunday are considered legal holidays) and Monday. The Landlord can then file an eviction petition on Tuesday. Anything filed earlier would be considered premature.

 

The Notice to Vacate requirement may be waived in writing, and that is usually the case in most Louisiana leases. However, if the Landlord gives Tenant some kind of notice that says “notice to vacate,” then Landlord has “waived the waiver” and is bound to wait the full 5 business days before a rule for eviction can be instituted.

 

If the cause of giving the Notice to Vacate is failure to pay rent, acceptance of any rent from the Tenant after the Notice to Vacate is given vitiates the effect of the Notice to Vacate and maintains the Tenant in possession.

 

Landlords have asked: “Do I have to take accept rent after it’s due? Do I have to take the Tenant’s money once I give them a Notice to vacate? Do I have to accept rent after I file the Petition of Eviction?” The answer is: “Sometimes yes, sometimes no.” All contracts are to be performed in good faith. Because the law disfavors dissolving the lease, and because it is subject to judicial control “according to the circumstances,” there should be no iron clad rule against accepting rent, late fees and court costs, regardless of when it is offered. Depending on the facts and circumstances, the court may order a short payment plan. Landlords are sometimes laboring under the mistaken impression that because they’ve paid court costs, they feel they “deserve” or are entitled to a judgment of eviction. Remember, you are paying to be heard and to have a fair hearing. There may be some extenuating circumstances that merit giving the Tenant additional time to pay what is owed.

 

An eviction is initiated by filing a formal Petition or Rule for Eviction. A landowner or lessor should first determine whether the rental property is in the territorial jurisdiction of the court:

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CCP Art. 4912 A (1):  A justice of the peace shall, within its territorial jurisdiction, have jurisdiction, concurrent with the parish or district court.....over suits by landowners or lessors for the eviction of occupants or tenants of leased residential premises, regardless of the amount of monthly or yearly rent or the rent for the unexpired term of the lease.

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Most courts have a fill in the blank form to use. Care should be given to fill out the form carefully and accurately. The court can not schedule a hearing any sooner than the third day (exclusive of holidays) from when service of the Petition of Eviction is made. Generally speaking, eviction hearings are set a week to 3 or 4 weeks from the date of filing, depending on the schedule of the court and the ability to make service of process. A Tenant has the right, and should, answer the Petition under oath, in writing and state any affirmative defenses entitling the Tenant to retain possession of the premises. An affirmative defense is one that extinguishes the claim of breach of contract made by the Landlord, such as fault of the Landlord, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality and any other matter. (CCP Art. 1005). Job loss, car repairs, funeral expenses and any number of other problems experienced by tenants do not normally serve as an affirmative defense.  If an answer is not filed, then Tenant may be unable to pursue a suspensive appeal. (CCP Art. 4735).

 

Once the hearing is set, Landlord and Tenant should appear in court to state their respective positions and give testimony and evidence. Since the dissolution of leases is disfavored, often a court will try to seek some resolution that will enable the parties to maintain their contractual relationship. Tenants are reminded they can not hold their rent “hostage” on the basis of Landlord’s failure to make repairs, nor can the Landlord withhold needed repairs because the Tenant has not paid rent.

 

The security deposit is just that - security that is used as an offset against whatever the Tenant may owe the Owner. It is not lagniappe. Although most leases contain language that state that Tenant forfeits the security deposit if the Tenant fails to complete the term of the lease or abandons the lease, in reality it is to be used as an offset against whatever amounts are owed to Owner. For example:

 

Brown rents a house to Doe for 12 months at $800 per month, with a $600 deposit. Doe abandons the property in the middle of month 4 without paying month 4's rent, and Brown is able to re-rent the home to another tenant at the beginning of month 6, but for only $700 per month. What does Doe owe to Brown?

 

All of month 4 rent $800 and late fees

All of month 5 rent $800 and late fees

Months 6 - 12 difference (6 X $100) $600

Subtotal $2,200

(minus security deposit) ($600)

Net amount owed $1,600

 

RULE DAY PROCEDURES

 

1. Determine whether you can appear in court. Technically, a legal entity (such as a corporation, partnership, or limited liability company) may appear through officers and employees. An individual should not appear on behalf of another individual as that constitutes the “unauthorized practice of law.” LSA-R.S. 38:212 states in part:

 

C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting any claim, not exceeding five thousand dollars, or defense pertaining to an open account or promissory note, or suit for eviction of tenants on its own behalf in the courts of limited jurisdiction on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.

 

Property management companies may not appear on behalf of individual owners. Instead the owner must be a “partnership, corporation, or other legal entity.” However, if the lease is executed between the property management company and the tenant, then the property management company may pursue the eviction on its own behalf.

 

2. Bring your file on the unit, a copy of the lease if the lease agreement is in writing. If the Petition of Eviction has been filed based on non-payment of rent, it is helpful to bring some kind of printed ledger showing charges and payments.

 

3. If you are trying to cancel the lease due to some breach other than non-payment, make sure you have sufficient evidence to prove your case. Police Reports are hearsay, as are written statements made by other witnesses. They may be considered but do not carry as much weight as a live witness with personal knowledge of the facts.

 

4. Tenants should file an answer stating affirmative defenses as noted above, or at least be prepared to put on what ever defense they wish to make along with evidence to support their defense. If the Tenant does not make an appearance in court, a default judgment of eviction will be issued.

 

5. The court will swear Landlord, Tenant and any witnesses in for testimony. Presuming the grounds of the eviction are non-payment of rent, typically, the court will ask if Landlord has accepted or received any rent since filing the Petition for Eviction. “Accepting” means the Landlord has taken money from the Tenant, thus ending the procedure. “Received” means the Tenant has tendered payment, but at the moment Landlord is not accepting the payment. If the petition for eviction is for something other than non-payment of rent, the court will need to hear evidence of the alleged breach of contract. The court expects full disclosure of all relevant facts at the hearing. Landlords – Do not assume the court will rule in your favor. Do not pre-lease the rental unit, assuming the court will rule in your favor. The Landlord bears the burden of proof, and as mentioned above, dissolution of leases is not favored by the law. Tenants should provide good evidence to justify not putting the Landlord in possession of the premises. The payment of court costs is for the opportunity to have your case heard and considered - it is not payment for a judgment.

 

6. If the court rules in favor of Landlord, the Tenant has 24 hours to move out of the rental unit. The judgment of eviction is valid for 90 days. Unless it’s pursuant to a court ordered payment plan, if Landlord accepts any money after the judgment is rendered, it renders the judgment moot and unenforceable.

 

7. A Tenant may pursue an appeal of the judgment, but the Tenant must have filed an answer, under oath, stating affirmative defenses. Also, the Tenant must pursue the appeal withing 24 hours of the rendition of the judgment by filing a Motion to Appeal. The court will also require the Tenant to file a suspensive appeal bond, and then the appeal must be filed with the 19th Judicial District Court. The District Court will then set the matter for a trial de novo.

 

WRIT OF POSSESSION – PUT OUT PROCEDURES

 

1. The Judgment will give the Tenant 24 hours to deliver possession. Depending on the schedule of the Constable’s office, he will try to accommodate Landlords as quickly as possible. However, there are many things Landlord can do to help:

 

2. Post another Notice (provided by the Court or Constable) that notifies Tenant a Judgment has been rendered, and that Constable will be there the next day to execute the Writ of Possession. It doesn’t mean the Constable will be at the unit in exactly 24 hours. In fact, he will not show up unless you and he have made a specific appointment. You should check the unit sometime after the hearing to ascertain whether the Tenant is still in the unit, then call the Constable to discuss setting up an appointment.

 

3. If the premises have personal possessions, and there are no signs of an attempted move, and the Tenant did not show up at court, my instructions to the Constable are to “slow down.” It is neither normal nor reasonable for people to allow their personal effects to be put out on the street. Therefore, the Constable and/or Court will probably require the Landlord to give names of relatives, employment or work numbers, etc in an attempt to locate the Tenant. These efforts are done in as much of an effort to err on the side of caution and help the Tenant as they are to protect the Landlord from future litigation. Therefore, please be cooperative and know that the Constable is merely trying to assure the Tenant has had adequate notice, and is not lying in a hospital in a coma completely unaware of what is happening!

 

4. Have sufficient manpower available to execute the Writ of Possession in one hour. Very often the Constable must wait on moving personnel, which in turn impacts his ability to serve pleadings and execute writs of possession at other locations. Accepting funds from the Tenant after the Constable arrives is acceptable, but we ask that every effort be made to obtain payment prior to scheduling the Constable for a writ of possession is executed.

 

5. At least 2 people are needed to execute the Writ of Possession. The Constable’s office would like to see 2 movers for a one bedroom apartment, and then one additional mover for each additional bedroom. Remember, if the Constable has to spend a lot of time executing Writs, he can’t serve the Petitions of Eviction, which in turn means the court dates for evictions can not be set as quickly. We appreciate everyone’s cooperation in this regard.

 

6. Sometimes the Constable will allow tenants to move themselves, and sign over possession to the Landlord for a certain time. Often this means the Landlord can change locks at the appointed time, and treat any items left in the apartment as abandoned. If the tenant then tries to re-enter the unit, then the Landlord may contact the Sheriff’s office as that would constitute the criminal offense of trespassing.

 

7. The Constable can not “ban” a former Tenant from a property. As long as the former Tenant is the guest or invitee of another Tenant, then he is considered a visitor like anyone else. If the former Tenant is not a guest or invitee, then Landlord can call the Sheriff’s office and have the person picked up for loitering or trespass.

 

OTHER REMEDIES FOR BREACH OF LEASE OBLIGATIONS

 

Non-payment of Rent – Landlords have 3 years to sue a Tenant for past due rent. The 3 years runs from the date rent is due. For instance, rent due January 1, 2020 prescribes January 1, 2023. Rent due February 1, 2020 prescribes February 1, 2023, and so forth. Technically, the rent obligation is conjunctive, and therefore a Landlord can file suit on each individual month that’s due, or combine several months worth of unpaid rent for a claim. There is also a Lessor’s Privilege that may be exercised in connection with pursuing unpaid rent, though it is usually reserved for commercial property litigation.

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Damages to Premises – Landlords might only have one year to sue for damages. Even though it is a breach of contact normally prescribes in 10 years, physical damages to property are subject to a prescriptive period of one year. (CC art. 3493).

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Damages for Breach of Contract – Tenants might have grounds to sue a Landlord if the Landlord fails to honor his obligations of being put into possession, maintenance and peaceful possession. Again, the safest approach would be to file suit within one year of the breach having occurred.