LANDLORD-TENANT LAW

CHAPTER 9

LOUISIANA
LANDLORD–TENANT LAW
Mark Moreau

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About The Author

Mark Moreau, Co-Director, Southeast Louisiana Legal Services, New York
University School of Law, LL.M. in Taxation, 1982, Buffalo Law School, J.D., 1975,
Brown University, A.B., 1971. Mr. Moreau has worked as a legal aid attorney for
35 years. He started Louisiana’s first Low Income Taxpayer Clinic in 2000 and
serves as the Clinic’s Director at Southeast Louisiana Legal Services.
Mr. Moreau is a member of the Louisiana and New York bars. He was the
1992-93 Chairman of the Louisiana State Bar Association Consumer Protection,
Lender Liability and Bankruptcy Section and has served on the Advisory Subcom-
mittee on Lease for the Louisiana State Law Institute. Mr. Moreau is the recipient
of the Louisiana State Bar Association’s Career Public Interest Award, the New
Orleans CityBusiness Leadership in Law Award, the National Taxpayer Advocate’s
Award and the Louisiana Coalition Against Domestic Violence’s Into Action
Award.

Acknowledgments
Special thanks to David Williams, Amanda Golob and Eric Foley of Southeast
Louisiana Legal Services and to Walter McClatchey of Acadiana Legal Service for
their comments and contributions to Louisiana Landlord-Tenant Law,

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1. INTRODUCTION
This manual discusses Louisiana landlord-tenant law issues that commonly
affect indigent tenants. The subjects covered are:
• Sources of Landlord-Tenant Law
• Eviction Defenses
• Lockouts & Utility Terminations
• Tenant’s Lease Cancellation Rights
• Repairs
• Tenant Damage Claims
• Housing Discrimination Remedies
• Security Deposits
• Internet Research
• Other Treatises
The section on Eviction Defenses includes a checklist on how to assess
an eviction case and a quick reference guide to the most common eviction
defenses. A more detailed discussion of eviction procedures and defenses follows
the checklist and quick reference guide. In addition, the appendix has a model pro
se eviction answer that lists possible defenses for a tenant to select as appropriate.

2. SOURCES OF LANDLORD-TENANT LAW

In analyzing clients’ housing problems, you should determine whether they
have a landlord-tenant relationship with the adverse party.1 A landlord-tenant
relationship exists when there is a lease between the parties. A lease is an oral
or written contract by which one party consents to give the other party enjoyment
of a thing at a fixed price. La. Civ. Code art. 2668, 2681.
The legal relationship between the landlord and tenant is a mixture of con-
tractual, tort and statutory duties. Generally, the lease is the law between the
landlord and tenant unless it violates the law or public policy.2 Therefore, each
relevant provision in the lease must be analyzed to determine its proper interpre-
tation and applicability. La. Civ. Code arts. 1983, 2045-57. As a contract, a lease
may also be governed by Civil Code articles on obligations and contracts. La. Civ.
Code art. 2669.
Some notable principles of lease analysis are:
• Uncertain or ambiguous lease provisions must be construed against the land-
lord and in favor of maintenance of the lease. New Orleans Minority Business
Center, Ltd. v. Duong, 703 So.2d 157 (La. App. 4 Cir. 1997).
• Oral modifications or the parties’ course of conduct can change a written
lease. Karno v. Fein Caterer, 846 So.2d 105 (La. App. 4 Cir. 2003); Quigley v.
T.L. James & Co., 595 So.2d 1235 (La. App. 5 Cir. 1992); Aghili v. Strother,
2007 WL 865413 (La. App. 1 Cir. 2007).
• If the lease does not govern a particular problem, then Louisiana Civil Code
arts. 2668-2744 or other applicable laws will govern.
1
Other possible legal relationships include owner-occupant, innkeeper-guest, employer- employee, owner-trespasser, own-
ers in indivision.
2
Carriere v. Bank of Louisiana, 702 So.2d 648 (La. 1996).

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• The lease provision may be unenforceable or prohibited if it violates the law

or public policy. La Civ. Code art. 1968. (Examples of unenforceable lease
provisions can be found at § 5.7.10 herein).

3. HOW TO DEFEND JUDICIAL EVICTIONS: A CHECKLIST

1. Ascertain client’s objective–more time or defeat eviction?
• Explain possible eviction dates and state court eviction process
• Advise on possible defenses
2. What stage is the eviction at?
• Pre-lawsuit
• Pre-judgment
• Post-judgment
3. If post-judgment, does client have time and grounds for appeal, motion
for new trial or petition for nullity of judgment?
Most common grounds for petition for nullity are:
• No notice of eviction lawsuit received
• Landlord accepted rent, but proceeded with eviction
• Eviction was for “no cause” and lease or law only allows eviction for cause
Petitions for nullity of judgment can be filed within the eviction lawsuit. They
are ordinary proceedings. Therefore, you must immediately apply for a tem-
porary restraining order and preliminary injunction to stop the eviction.
4. If no judgment yet, explore possible settlement with landlord.
• Assess whether pre-trial negotiations are consistent with defense strate-
gies and client objectives.
• What is the landlord’s price (rent, costs) for dismissal of eviction?
• If eviction is for “no cause”, will landlord agree to extension of move-out
date and under what conditions?
• Section 8 voucher tenants can lose their vouchers if evicted for cause.
Therefore, settlement is important
• Landlord’s fears about vitiation of eviction can be allayed by entering con-
sent judgment with extended executory date.
• Compromise agreements should be in writing or recited and recorded in
open court to be enforceable. La. Civ. Code art. 3071.
5. Analyze client’s defenses and remedies:
• Is there a landlord-tenant relationship?
• Does plaintiff have the right to evict by summary process?
• Any leases or other agreements that govern the eviction?
• If subsidized housing, what federal laws govern the eviction?
• Procedural defenses?
• Substantive defenses?
• Affirmative lawsuits, e.g., housing discrimination or bankruptcy, to stop
the eviction?

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• If housing discrimination exists (look for failure to accommodate tenants

with disabilities or evictions based on association with minorities or chil-
dren), file suit in state or federal district court before eviction lawsuit is
filed and secure injunction or lis pendens bar.
• Damage claims? They do not defeat evictions, but may provide settlement
leverage.
6. Prepare for Trial
• Select all defenses to be pleaded.
• Identify evidence (witnesses and documents) needed for trial.
• Subpoena evidence needed for proof of defenses.
• Apply for continuances if evidence cannot be timely produced for trial
• Draft pauper affidavits and verified answer and exceptions (sworn to by
client before notary) that specially plead affirmative defense(s) entitling
tenant to retain possession in a suspensive appeal. La. Code Civ. Proc.
art. 4735.
• Generally, judicial control doctrine should be pleaded, if applicable, since
it is indisputably an affirmative defense.
• File verified answer with clerk of court prior to trial.
7. Prepare for Appeal in Advance
• Preliminarily assess merits of appeal if eviction ordered
• Discuss requirements for appeal with client
• Prepare motion for appeal and appeal bond
• Explain that landlord may seek eviction on new grounds during appeal
8. Trial
• Consider pre-trial conference for settlement purposes
• Ask court to transcribe testimony in parish or city court eviction
• Try exceptions before merits
• Insist on dismissal if notice to vacate defective, rule for possession pre-
mature or if rent has been accepted
• Limit landlord’s case to grounds raised in rule for possession
• If the landlord has not proven a right to relief after presentation of his
evidence, move for dismissal under La. Code Civ. Proc. art. 1672 (B)
• Present evidence necessary to support your defenses; make a proffer of
evidence if the court refuses to admit the evidence or allow the testimony3
• Preserve grounds for appeal
9. Appeal
• Within 24 hours of judgment (a) file suspensive appeal motion and bond
with city or parish court if city or parish court was the trial court or (b)
file petition for suspensive appeal by trial de novo and bond with district
court or parish/city court if trial court was justice of peace.
• Ask for alternative bond (payment of rent into court registry) if tenant
does not have surety. Tenant has right to surety or cash bond.
3
La. Code Civ. Proc. art. 1636.

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• Advise client of need to timely pay rent to court registry or landlord during
pendency of appeal
• Make sure that estimated costs of appeal are timely paid if client is not
proceeding in forma pauperis

4. EVICTION DEFENSES: QUICK REFERENCE GUIDE

Common eviction defenses and supporting case citations are:
1. Notice to vacate for “no cause eviction” less than 10 days before end of cur-
rent rental month. Solet v. Brooks, 30 So.3d 96, 101 (La. App. 1 Cir. 2009);
Houston v. Chargois, 732 So.2d 71 (La. App. 4 Cir. 1999).
2. Less than 90 days written notice to vacate given to tenant in foreclosed prop-
erty. Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220 note; Bank of
New York Mellon v. De Meo, 254 P.3d 1138 (Ariz. App. 2011).4
3. Notice to vacate fails to provide tenant with sufficient notice of grounds for
eviction. Louisiana State Museum v. Mayberry, 348 So.2d 1274 (La. App. 4
Cir. 1977).
4. Notice to vacate (contents and/or service) fails to comply with federal regu-
lations for subsidized housing evictions. Apollo Plaza Apts. v. Gosey, 599
So.2d 494 (La. App. 3 Cir. 1992); Versailles Arms Apts. v. Pete, 545 So.2d
1193 (La. App. 4 Cir.1989).
5. Rule for possession premature because filed before expiration of notice to
vacate. Owens v. Munson, 2009 WL 3454507 (La. App. 1 Cir. 2009);Lichtentag
v. Burns, 258 So.2d 211 (La. App. 4 Cir. 1972), writ denied 259 So.2d 916 (La.
1972).
6. Acceptance of rent after notice to vacate defeats eviction. Billiot v. Hue, 2011
WL 1944120 (La. App. 1 Cir. 2011); Housing Authority of Town of Lake Prov-
idence v. Allen, 486 So.2d 1064 (La. App. 2 Cir. 1986).
7. Delay in returning rent after notice to vacate defeats eviction. Four Seasons,
Inc. v. New Orleans Silversmiths, Inc., 223 So.2d 686 (La. App. 4 Cir. 1969).
8. Acceptance of partial rent after notice to vacate defeats eviction. Adams v.
Dividend, Inc., 447 So.2d 80 (La. App. 4 Cir. 1984); Housing Authority of Town
of Lake Providence v. Burks, 486 So.2d 1068 (La. App. 2 Cir. 1986); Thompson
v. Avenue of Americas Corp., 499 So.2d 1093 (La. App. 3 Cir. 1986).
9. Timely tender of rent constitutes payment of rent which defeats eviction for
nonpayment of rent even if landlord refuses to accept rent. Cantrell v. Collins,
984 So.2d 738, 740-41 (La. App. 1 Cir. 2008); Adams v. Dividend, Inc., 447
So.2d 80, 83 (La. App. 4 Cir. 1984).
10. A late rent payment defeats eviction if there was a custom of accepting rent
late. Versailles Arms Apts. v. Pete, 545 So.2d 1193 (La. App. 4 Cir. 1989).
11. A partial rent payment defeats eviction if there was a custom of accepting
partial rent. Grace Apts. v. Hill, 428 So.2d 862 (La. App. 1 Cir. 1983).
4
Notice to vacate must be at least 90 days or the duration of the lease, whichever is longer. 12 U.S.C. § 5220, The Pro-
tecting Tenants at Foreclosure Act, expires on December 31, 2014 unless extended. See Pub. L. No. 111-22, Div. A, tit.
VII, §§ 701-704, Stat. 1632, 1660-62 as amended by the Protecting Tenants at Foreclosure Extension and Clarification
Act, Pub. L. No. 111-203, tit. XIV, § 1484, 124 Stat. 1376, 2204.

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12. Section 8 tenant’s payment of her portion of rent may defeat eviction if hous-
ing authority failed to pay its portion due to abatement. Cf. McMillian v. Ander-
son, 57 So.3d 422 (La. App. 2 Cir 2011)(tenant’s claim failed because she
did not submit evidence of abatement).
13. Acceptance of rent waives right to evict for lease violation. A & J v. Ackel
Real Estate, 831 So.2d 311 (La. App. 5 Cir. 2002); Quinn Property v. Sabine
River, 676 So.2d 639 (La. App. 3 Cir. 1996).
14. Evictions are subject to judicial control and may be denied even if a lease
violation exists. Carriere v. Bank of Louisiana, 702 So.2d 648 (La. 1996);
Ergon v. Allen, 593 So.2d 438 (La. App. 2 Cir. 1992).
15. Unexpired fixed term lease cannot be terminated for “no cause.” La. Civ.
Code art. 2728, 1983; Shell Oil v. Siddiqui, 722 So.2d 1197 (La. App. 5 Cir.
1998).
16. Public housing, low income tax credit housing, rural housing leases may not
be terminated at end of lease absent good cause. 24 C.F.R. § 966.4 (public
housing); Rev. Rul. 2004-82 ; (low income tax credit housing); Carter v. Mary-
land Management Co., 835 A.2d 158 (Md. App. 2003)(low income tax credit
housing); 7 C.F. R. § 3560.159 (rural housing).
17. The landlord failed to prove lease agreement, lease violation or expiration.
Monroe Housing Authority v. Coleman, 70 So.3d 871 (La. App. 2 Cir. 2011);
Owens v. Munson, 2009 WL 3454507 (La. App. 1 Cir. 2009); Kenneth and Alli-
cen Caluda Realty Trust v. Fifth Business LLC, 948 So.2d 1137, 1138 (La.
App. 5 Cir. 2006); PTS Physical Therapy Service v. Magnolia Rehabilitation
Service, Inc., 920 So.2d 997, 1000 (La. App. 2 Cir. 2006); Houston v. Chargois,
732 So.2d 71 (La. App. 4 Cir. 1999).
18. Tenant not afforded opportunity to cure lease violation per rectification clause
in lease or law. D & D Investment v. First Bank, 831 So.2d 488 (La. App. 5
Cir. 2002); Shell Oil v. Siddiqui, 722 So.2d 1197 (La. App. 5 Cir. 1998); Rain-
tree Court Apts. v. Bailey, No. 98-C-1138 (La. App. 5 Cir. 1998); see also Mer-
aux & Nunez v. Houck, 13 So.2d 233 (La. 1943).
19. Domestic violence victims in Section 8 and public housing can’t be evicted
for domestic violence committed against them. 42 U.S.C. § 3604(b); 42 U.S.C.
§ 1437f(c)(9); 42 U.S.C. § 1437f(o)(7)(D)(i).
20. Unlawful discrimination. Mascaro v. Hudson, 496 So.2d 428 (La. App. 4 Cir.
1986). However, it is generally better to litigate such claims in federal or
state district court before the eviction lawsuit is filed.
21. Failure to accommodate disabled tenant. Boston Housing Authority v. Bridge-
waters, 898 N.E.2d 848 (Mass. 2009); S. Trafford, Using Reasonable Accom-
modations to Preserve Rights of Tenants with Disabilities, 33 Clearinghouse Rev.
131 (July-Aug 1999).5
22. Plaintiff is not the owner or landlord or failed to prove ownership or lease.
Savoy v. Jones, 484 So.2d 233 (La. App. 3 Cir. 1986); Fradella Construction,
Inc. v. Roth, 503 So.2d 25 (La. App. 4 Cir. 1986); Reynolds v. Brown, 84 So.3d
655 (La. App. 5 Cir. 2011).
5
The article can be viewed or purchased at www.povertylaw.org

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23. The alleged tenant or occupant is a co-owner. Millaud v. Millaud, 761 So.2d
44 (La. App. 4 Cir. 2000) (jurisdiction lies with district court); Matthews v.
Horrell, 977 So.2d 62 (La. App. 1 Cir. 2007)(succession representative can’t
evict co- heir).
24. Possessor, whether in good faith or bad faith, may retain possession until he
is reimbursed for expenses and improvements which he is entitled to claim.
La. Civ. Code art. 592; Broussard v. Compton, 36 So.3d 376 (La. App. 3 Cir.
2010).
25. Usufructuary may retain possession until he is reimbursed for expenses and
advances he is entitled to claim from naked owner. La. Civ. Code art. 627;
Barnes v. Cloud, 82 So.3d 463 (La. App. 2 Cir. 2011).
26. Res judicata or issue preclusion bars relitigation of eviction. La. R.S.
13:4231 et seq.; Avenue Plaza LLC v. Falgoust, 676 So.2d 1077 (La. 1996).
27. Lis pendens bars second eviction suit. Enterprise Property Grocery, Inc. v.
Selma, Inc., 886 So2d 614 (La. App. 2 Cir. 2004); Spallino v. Monarch Sign,
771 So.2d 784 (La. App. 3 Cir. 2000); cf. Revel v. Charamie, 926 So.2d 582
(La. App. 4 Cir. 2006). Lis pendens also bars (1) an eviction suit which should
be brought as a reconventional demand in prior litigation between parties,
cf., Trahan v. 2010 Beglis, LLC, 81 So.3d 192 (La. App. 3 Cir. 2011) and (2)
an injunction filed after an eviction, see 800 Canal St. Ltd. Partnership v. Sto-
ryville Dist. New Orleans, LLC, 75 So.3d 958 (La. App. 4 Cir. 2011) .
28. Executive Order during disaster bars eviction or suspends delay periods for
eviction. Cf. Dendy v. City National Bank, 977 So.2d 8 (La. App. 1 Cir. 2007).
29. Bankruptcy stay prohibits eviction until stay lifted. In re Burch, 401 B.R. 153
(Bankr. E.D. Pa. 2008).
30. Bankruptcy Code, 11 U.S.C. § 525, prohibits public housing authority eviction
for non-payment of discharged rent. In re Stoltz, 315 F.3d 80 (2d Cir. 2002);
contra Housing Authority v. Eason, 12 So.3d 970 (La. 2009) rev’g 9 So.2d 269
(La. App. 4 Cir. 2009).

5. EVICTIONS
5.1 JURISDICTION
Justice of the peace and district courts have jurisdiction over evictions of res-
idential tenants and occupants regardless of the amount of monthly or yearly rent,
or the rent for the unexpired term of the lease. La. Code Civ. Proc. art. 4912 (A).
City and parish courts have jurisdiction over tenants if the monthly rental is
less than $3,000 or the annual rental less than $36,000. La. Code Civ. Proc. art.
4844. City and parish courts are courts of limited jurisdiction. A jurisdictional
oddity exists in that these courts do not have express statutory jurisdiction over
evictions of tenants where the lease term is other than a day, week, month or year.
Jurisdiction is not specified for evictions involving, for example, a lease with a six
month term. This is significant because the landlord must prove jurisdiction in
order to use the summary eviction procedure in a city or parish court.6 City and
parish courts have jurisdiction over evictions of occupants where the annual value
of the occupancy is less than $36,000. La. Code Civ. Proc. art. 4844 (A)(5).
6
Northeast Realty v. Jackson, 824 So.2d 1264 (La. App. 2 Cir. 2002); Arnona v. Arnona, 477 So.2d 120 (La. App. 4 Cir.
1985), writ denied 479 So.2d 367; see also Home Distribution, Inc. v. Dollar Amusement, Inc.,, 754 So.2d.1057, n. 2 (La.
App.1 Cir. 1999) (law no longer provides a catchall jurisdiction clause for city and parish court evictions).

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As a practical matter, city and parish courts will have jurisdiction over virtu-
ally all evictions of residential tenants. Jurisdictional disputes will arise where
the eviction lawsuit does not involve a “tenant” or “occupant” as defined by La.
Code Civ. Proc art. 4704. For example, city and parish courts may lack jurisdiction
where there is disputed title to the property or the defendant is a part owner.7

5.2 PROCEDURE FOR PROSECUTING AN EVICTION

5.2.1 Notice to Vacate
The first step in the eviction procedure is to deliver written notice to the ten-
ant to vacate the premises. La. Code Civ. Proc. art. 4701. Most landlords use
the form notice to vacate provided by the courts. However, they may draft their
own notices. The notice must specify the grounds for termination of the lease.8
La. Code Civ. Proc. art. 4701 provides for the written waiver of the notice to
vacate. Such waivers have been enforced by the courts.9 However, the notice to
terminate a month-to-month lease for “no cause” may not be waived in advance.
La. Civ. Code art. 2718. The notice must be in writing. La. Civ. Code art. 2719.
The notice to vacate comes into play when a tenant’s right of occupancy has
ceased because of the termination of the lease by expiration of its term, by the
landlord’s action, by nonpayment of rent, or for any other reason. The grounds
for eviction are generally (1) tenant’s failure to pay rent as due, (2) tenant’s vio-
laton of the lease, or (3) tenant’s refusal to vacate the premises upon expiration
or non-renewal of the lease.
This statement of grounds for lease termination must be placed in the notice
to vacate, and subsequently in the citation to appear or rule to show cause.10
Louisiana courts have held that constitutional due process requires the statement
to be in the notice to vacate to permit the tenant to prepare his defense.11 See
Apollo Plaza Apts. v. Gosey, 599 So.2d 494 (La. App. 2 Cir. 1992) for a helpful case
on what constitutes sufficient specificity. Therefore, if a tenant does not receive
the statement of grounds in the notice to vacate, he should argue a due process
violation and/or lease violation if also applicable. Notices to vacate to federally
subsidized housing tenants must also comply with applicable federal laws.12
The notice to vacate must be delivered not less than 5 days nor more than
30 days before the premises are to be vacated. La. Code Civ. Proc. art. 4701.
The time for delivery of the notice to vacate will be determined by the grounds for
the eviction. If the eviction is for good cause, such as failure to pay rent, 5 days
notice to vacate is required. Tete v. Hardy, 283 So.2d 252 (La. 1973).
No cause evictions of month-to-month tenants require 10 days notice prior
to the end of the rental month. La. Civ. Code art. 2728.13 Solet v. Brooks, 30 So.3d
96, 101 (La. App. 1 Cir. 2009). The fact that a tenant is given more than 10 days
notice is not a fatal defect. The statute only requires a minimum of 10 days. Lilly
7
See e.g., Fradella Construction, Inc. v. Roth, 503 So.2d 25 (La. App. 4 Cir. 1986); St. Pierre v. Hirschfeld, 569 So.2d 222
(La. App. 1 Cir. 1990).
8
Louisiana State Museum v. Mayberry, 348 So.2d 1274 (La. App. 4 Cir. 1977).
9
See , e.g. Guidry v. Castillo, 995 So.2d 50 (La. App. 5 Cir. 2008).
10
La. Code Civ. Proc. art. 4731 (A)(rule must state grounds for eviction).
11
See e.g. La. State Museum v. Mayberry, 348 So.2d 1274 (La. App. 4 Cir. 1977).
12
See e.g. Versailles Arms Apartments v. Pete, 545 So.2d 1193 (La. App. 4 Cir. 1989); 24 C.F.R. § 982.310 (e)(notice for Sec-
tion 8 voucher housing).
13
Prior to 2005, Civil Code articles 2685-86 governed terminations of month-to-month leases.

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v. Angelo, 523 So.2d 899 (La. App. 4 Cir. 1988). Thus, a landlord who wants a
month-to-month tenant out of his apartment, for any or no reason, merely needs
to give 10 days written notice to vacate before the end of the rental month.14 Torco
Oil Co. v. Grif-Dun Group, Inc., 617 So2d 102 (La. App. 4 Cir. 1993).
The notice to vacate can be delivered by the landlord or served by the sheriff.
In either case, the notice and service returns must be filed in the record. However,
if the premises are abandoned or closed, or if the whereabouts of the tenant or
occupant is unknown, the notice may be attached to a door of the premises. This
is service by tacking. La. Code Civ. Proc. art. 4703. Other state or federal laws
may impose additional requirements for the service of a notice to vacate on a
subsidized tenant.
5.2.2 Rule For Possession
If the tenant fails to comply with the notice to vacate, a judicial eviction may
be commenced by filing a rule for possession of premises with a proper court. La.
Code Civ. Proc. art. 4732. This rule requires the tenant or occupant to show cause
why he should not be ordered to deliver possession of the premises to the landlord
or owner. The rule must state the grounds on which eviction is sought. La. Code
Civ. Proc. art. 4731(A); St. Pierre v. Hirschfeld, 569 So.2d 222, 227 (La. App. 1 Cir.
1990).
Written pleadings are not required for evictions in justice of peace court. La.
Code Civ. Proc. art. 4917.15 The court must issue a citation or order to show cause
to the tenant. La. Code Civ. Proc. art. 4919. Either La. Code Civ. Proc. art. 4731
or due process should require the court to state the grounds on which eviction is
sought by the landlord. However, many justices do not include any reasons in the
citation or order.
The rule for possession must be served by the sheriff or constable. Under
current Louisiana statutory law, the rule may be served by tacking. La. Code Civ.
Proc. art. 4703. A federal court judgment requires that all eastbank Orleans
Parish rules be served by regular mail in addition to tacking.16 The rule may be
heard no earlier than the third day after service of the rule on the tenant. La.
Code Civ. Proc. art. 4732.
5.2.3 Trial
The rule to show cause why the tenant should not deliver possession is a
summary proceeding. La. Code Civ. Proc. art. 2592 (3). Trial of the rule should
be conducted quickly and without observing all of the formalities of an ordinary
proceeding. La. Code Civ. Proc. art. 2591. Jury trials are not available in
Louisiana eviction proceedings. La. Code Civ. Proc. art. 1732 (3).
At the trial, the landlord has the burden of establishing a prima facie case of
his right to possession.17 There are three essential elements to a landlord’s cause
of action for eviction:
14
If no lease exists, e.g., the evictee is only an occupant, Civil Code art. 2728 does not apply and a 5 day notice to vacate
would suffice. See Northeast Realty v. Jackson, 850 So.2d 947 (La. App. 2 Cir. 2003)(case decided under pre-2005 Civil
Code article 2686).
15
The landlord must still give a written notice to vacate that complies with due process, applicable laws or lease provisions.
The trial should be limited to the grounds stated in the notice to vacate.
16
See Sylvester v. Detweiler, USDC No. 84-3399 (E.D. La. 1985); see also, Hughes v. Sanders, 847 So.2d 165 (La. App. 2 Cir.
2003) (J. Caraway, dissenting).
17
The reality in many trial courts is that the judge places the burden on the tenant, does not require proof of a prima facie
case, and conducts a the trial that is “conversational” at best.

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(1) the relation of landlord and tenant between the parties,

(2) the expiration or termination of the lease,
(3) that due notice to vacate has been served upon the tenant, as required by
law.
See Miller v. White, 162 So. 638 (La. 1935); Owens v. Munson, 2009 WL
3454507 (La. App. 1 Cir. 2009); Kenneth and Allicen Caluda Realty Trust v. Fifth
Business LLC, 948 So.2d 1137, 1138 (La. App. 5 Cir. 2006); PTS Physical Therapy
Service v. Magnolia Rehabilitation Service, Inc., 920 So.2d 997, 1000 (La. App. 2
Cir. 2006).
The landlord must prove the notice, the landlord-tenant relationship, violation
of the lease or expiration of the lease. If there is a lease, it is the landlord’s burden
to prove the lease and the lease violation. Sworn testimony and admissible docu-
ments must be introduced into evidence for the landlord to establish a prima facie
case of entitlement to eviction. See Owens v. Munson, supra; Kenneth and Allicen
Caluda Realty Trust v. Fifth Business LLC, supra; PTS Physical Therapy Service v.
Magnolia Rehabilitation Service, Inc., supra. An eviction can’t be granted absent
evidence. Poydras Center LLC v. Intradel Corp., 81 So.3d 80 (La. App. 4 Cir. 2011).
In addition, the landlord must show jurisdiction. Arnona v. Arnona, 477 So.2d
120 (La. App. 4 Cir. 1985), writ denied 479 So.2d 367 (La. 1985); PTS Physical
Therapy Service v. Magnolia Rehabilitation Service, Inc., 920 So.2d 997, 1000 (La.
App. 2 Cir. 2006).
After the landlord establishes a prima facie case, the burden shifts to the
tenant to refute the landlord’s case and to prove any affirmative or special
defenses pleaded.
Some justices of the peace enter eviction judgments without ever holding a
trial. This is egregious legal error and violates the Code of Judicial Conduct. A
judge who does this will probably be suspended by the Supreme Court. See e.g.,
In re Justice of the Peace Landry, 789 So.2d 1271 (La. 2001). A call to the judge
may secure a rescission of the unlawful judgment.18

5.2.4 Judgment
The judgment of eviction must be rendered “immediately” after the trial of
the rule. La. Code Civ. Proc. art. 4732. The failure to immediately render judg-
ment probably makes the judgment invalid if it prejudices or prevents a timely
appeal by the losing party.19 The judgment must be in writing. La. Code Civ. Proc.
arts. 1911, 4923.
Notice of the judgment must be given to the tenant. La. Code Civ. Proc. arts.
1913, 4905, 4922. The judgment of eviction against the tenant is also binding on
sublessees. Scott v. Kalip, 197 So. 205 (La. App. 2 Cir. 1940)(sublessee has right
to sue sublessor for damages, if any, as a result of the eviction). Judgment must
be effective for at least 90 days. La. Code Civ. Proc. art. 4732.

18
Do not threaten the judge with disciplinary charges for his violation of the Code of Judicial Conduct. See Rules 8.4 (g),
8.3 (b), Louisiana Rules of Professional Conduct.
19
Cf. Versailles Arms Apts. v. Granderson, 377 So.2d 1359, 1362 (La. App. 4 Cir. 1979); Edenborn Partners v. Korndorffer,
652 So.2d 1027 (La. App. 5 Cir. 1995); Flores v. Gondolier, Ltd., 375 So.2d 400, 403 (La. App. 3 Cir. 1979).

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5.2.5 Execution of Eviction Judgment

Under La. Code Civ. Proc. art. 4733, an eviction judgment is executed by
applying for a warrant for possession if the tenant does not vacate within 24 hours
after the “rendition” of judgment. “Rendition” means when a written judgment is
signed.20 Execution of the judgment requires the tenant to remove not only him-
self and his possessions, but also to deliver the property free of other occupants.21
The warrant for possession typically directs the sheriff or constable to imme-
diately execute the eviction judgment. They can force open doors and windows,
and seize and sell the property to pay for the costs.

5.3 PROCEDURE FOR DEFENDING A JUDICIAL EVICTION

5.3.1 Verified Answer and Affirmative Defense
A verified answer pleading an affirmative defense must be filed prior to the
trial of the rule for possession to preserve the tenant’s right to suspensively appeal
an eviction judgment.22 Thus, as a practical matter, the first step in defending an
eviction is the preparation of a verified answer to the rule for possession. The
answer must be written, signed and sworn to by the tenant under oath.23
The answer must plead an affirmative defense entitling the tenant to retain
possession of the premises. 24 An affirmative defense should be specially pleaded
and as specific as possible.
An affirmative defense in an eviction proceeding has been held to be one
which raises a new matter not covered by the plaintiff’s petition and which would
defeat the plaintiff’s demand on the merits, even if the plaintiff proves all of the
allegations in his petition. Newport-Nichols Enterprises v. Grimes, Austin & Stark,
Inc., 463 So.2d 111 (La. App. 3 Cir. 1985) (held that defendant’s defense of judi-
cial control entitled the tenant to a suspensive appeal.) ln Newport, the tenant
pleaded good faith efforts to comply with the lease and that the breach of failing
to furnish evidence of insurance was immaterial. You should always plead the
defense of judicial control.
In Modicut v. Bremer, 398 So 2d 570 (La. App. 1 Cir. 1980), the plaintiff sued
for eviction claiming non-payment of rent, and the defendant answered contending
that he had complied with all of the terms and conditions of his lease. The court
held that the defendant’s assertion of compliance was merely a general denial of
the plaintiff’s allegation of non-payment. The plea of compliance was held not to
have raised a new matter which would defeat the plaintiff’s claim, even if the claim
was found to be true. The court held that a general denial is not an affirmative
defense under La. Code Civ. Proc. art. 1005.
Modicut appears to be contrary to the Supreme Court’s decision in Trist v.
Ravain, 98 So.2d 169 (La. 1957) where a defense of rent payment was held to be
20
Housing Authority of City of Lake Charles v. Minor, 355 So.2d 270 (La. App. 3 Cir. 1977).
21
Miles v. Kilgore, 191 So. 556 (La. App. 2 Cir. 1939).
22
A post-trial answer will not be considered. Williams v. Bass, 847 So.2d 80 (La. App. 2 Cir. 2003). However, an answer
filed after trial but before judgment with leave of court may suffice. Newport-Nichols Enterprises v. Grimes, Austin & Stark,
Inc., 463 So.2d 111 (La. App. 3 Cir. 1985)
23
La. Code of Civ. Proc. art. 4735; McMillan v. Chauvin, 281 So.2d 181 (La. App. 4 Cir. 1973)(testimony under oath is
insufficient); writ denied 283 So.2d 770 (La. 1973); Papa v. Sullivan, 268 So.2d 326 (La. App. 2 Cir. 1972).
24
La. Code Civ. Proc. art. 4735; Sarpy v. de la Houssave, 217 So.2d 783 (La. App. 4 Cir. 1968); Soloman v. Hickman 213
So.2d 96 (La. App. 1 Cir. 1968).

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sufficient for a suspensive appeal.25 Before Modicut, the rule applied in eviction
appeals had been or is that an affirmative defense is one which, if proven, will
have the effect of defeating the rule for possession on its merits.26 To counter
Modicut, one should plead the Newport-Nicholls Enterprises affirmative defense of
judicial control of lease termination whenever possible.
5.3.2 Motion to Continue
A brief continuance of the eviction trial must be granted under La. Code Civ.
Proc. art. 1602 if you are unable, with due diligence, to obtain evidence or wit-
nesses material to the case. La. Code Civ. Proc. arts. 1602, 4831. In addition,
due process requires that a tenant have a fair opportunity to present his case.
Pernell v. Southall Realty, 416 U.S. 363, 385 (1974). Thus, subpoenae for wit-
nesses and documents must be issued immediately so that the due diligence stan-
dard for an art. 1602 peremptory continuance will be met. Evictions involving
federally subsidized tenants, the repair and deduct defense, or the abuse of right
defense often require additional time to subpoena witnesses and documents.
Landlords and courts must accommodate the disabled and hospitalized. One
court has held that the Fair Housing Act requires continuances where the tenant’s
disability prevents his attendance.27 Other courts have found that the Americans
with Disabilities Act may require a continuance as an accommodation.28
A continuance should be granted in a public housing authority eviction where
the authority has refused or failed to grant the pre-trial discovery required by fed-
eral law. See § 5.3.3, infra.

5.3.3 Pre-trial discovery

The trial of most residential evictions within 3 to 7 days of the filing of the
rule for possession generally makes pre-trial discovery infeasible. However, in
trial de novo appeals of justice of peace eviction judgments, there will often be 3
or more weeks before the trial date. This delay can provide sufficient time to notice
a deposition. In addition, federal law creates a statutory right for public housing
authority tenants to inspect any relevant documents, records or regulations
directly related to the eviction before any grievance hearing or court trial. 42
U.S.C. § 1437d(l)(7); 24 C.F.R. § 966.4(m). The right to pre-trial examination of
documents even applies to cases where the tenant does not have a right to a griev-
ance hearing. 24 C.F.R. § 966.4 (m) expressly bars the housing authority from
proceeding with eviction if it fails to make the documents available upon request
by the tenant. Furthermore, federal law requires that the first notice of termination
advise the tenant of the § 966.4 (m) right to pre-trial inspection. 24 C.F.R. §
966.4(k)(3)(ii). Thus, a court should continue or dismiss the eviction trial if the
housing authority has failed to allow the required examination.
25
It also appears contrary to Versailles Arms Apartments v. Granderson, 377 So. 2d 1359 (La. App. 4 Cir. 1979), in which
the 4th Circuit held that an allegation of timely tender of the rent due constituted an affirmative defense to an eviction
for nonpayment of rent. See also Gennaro v. Royal Oldsmobile Co., Inc., 37 So.3d 1109, 1113 (La. App. 5 Cir. 2010)(payment
of rent is affirmative defense); Liggio v. Judeh , 446 So.2d 402 (La. App. 4 Cir. 1984)(denial of lease violation not an
affirmative defense).
26
See e.g., Versailles Arms Apts. v. Granderson, 377 So.2d 1359 (La. App. 4 Cir. 1979).The Modicut decision, if applied, could
deny tenants the right to retain possession in many eviction appeals. As such, it arguably constitutes a denial of the
state constitutional right to appellate review, or a denial of equal protection. See, Lindsey v. Normet, 405 U.S. 56 (1972);
La. Const. arts. I, §§ 19, 22.
27
Anast v. Commonwealth Apts., 956 F. Supp. 792 (N.D. Ill. 1997).
28
In re Marriage of James M. and Christine J.C., 158 Cal. App. 4th 1261 (2008); Biscaro v. Stern, 181 Cal. App. 4th 702
(2010); Blackhouse v. Doe, 24 A.3d 72 (Me. 2011).

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5.3.4 Recordation of Testimony

A tenant has a state constitutional right to a verbatim recordation of the tes-
timony in an eviction trial in a city, parish or district court. Also, you may require
the Clerk of Court to take down the testimony in longhand. La. Code Civ. Proc.
art. 2130.
A verbatim recordation of the testimony should always be obtained if you
anticipate an appeal (other than an appeal which is trial de novo). Reliance on a
narrative of facts is not advised because the judge or opposing counsel will often
control the contents of the narrative of facts. In addition, the procedure for prepar-
ing and filing an approved narrative of facts by the return date of the appeal (typ-
ically, one week after the judgment when testimony was not recorded) is
burdensome on appellant’s counsel. See La. Code Civ. Proc. art. 2131.

5.4 APPEALS AND POST-JUDGMENT REMEDIES

5.4.1 Appellate Jurisdiction
A tenant may suspensively appeal an eviction judgment. La. Code Civ. Proc.
art. 4735. To suspend the eviction, the appeal and appeal bond must be filed within
24 hours of rendition of the judgment. Id. Also, a tenant has the right to devolu-
tively appeal an eviction judgment.29 The devolutive appeal will not prevent exe-
cution of the eviction judgment. However, reversal of the eviction in a devolutive
appeal will subject the landlord to a damages action for wrongful eviction. The
delay period for a devolutive appeal of a city or parish court eviction judgment is
10 days.30 The delay period for a devolutive appeal of a justice of peace eviction
judgment is 15 days.31
Appeals of all eviction cases from city court or parish court are taken to the
court of appeal in the same manner as an appeal from the district court. La. Code
Civ. Proc. art. 5001; 2081 et seq.
Appeal from justice of the peace court is to the parish court or, if there is no
parish court, to the district court of the parish where the justice of the peace is
situated. La. Code Civ. Proc. art. 4924 (A). Appeals from justice of the peace
court are tried de novo in parish or district court, and no further appeal is allowed.
La. Code Civ. Proc. art. 4924 (B)-(C).
At a trial de novo in parish or district court, the whole case is open for deci-
sion and is retried as if there had been no prior trial whatsoever. A tenant may
raise new defenses and present new evidence in the trial de novo.32 A district or
parish court sitting as an appellate court in an eviction will also have supervisory
jurisdiction over the justice of peace court.33
Although no further appeals are allowed in “justice of peace” evictions, the
court of appeal has supervisory jurisdiction over the parish or district court’s
29
Edwards v. Edwards, 439 So.2d 478 (La. App. 1 Cir. 1983)(eviction judgment reversed on devolutive appeal); Pledge
Development Corp. v. Big Kahuna Enterprises, Inc., 376 So.2d 600 (La. App. 4 Cir. 1979)(suspensive appeal of eviction
converted to devolutive appeal); Vision Aviation LLC v. Airport Authority for Airport Dist. No. 1 of Calcasieu Parish, 2009
WL 2246762 (La. App. 3 Cir. 2009)(same).
30
La. Code Civ. Proc. art. 5002(A)-(B); Erazo v. Morton, 33 So.3d 952, 954 (La. App. 5 Cir. 2010).
31
La. Code Civ. Proc. art. 4925(A)-(B).
32
See e.g., The Home Depot v. State Workers Compensation Second Injury Board, 934 So.2d 125, 127 ((La. App. 1 Cir. 2006).
33
La. Const. Art. 5, §§ 2, 16 (B); In re Shintech, 734 So.2d 772 (La. App. 1 Cir. 1999), writ denied 746 So.2d 601 (La.
1999).

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appellate jurisdiction and may reverse the eviction. La. Code Civ. Proc. art.
4924.34 A writ application to reverse an appellate decision by a parish or district
court should be accompanied by a request for a stay of the eviction judgment.35
5.4.2 Motion For Suspensive Appeal
5.4.2.1 Parish and City Court Evictions
Application must be made to the trial court for suspensive appeal by written
motion or petition, filed within 24 hours after the rendition of a judgment of evic-
tion. La. Code Civ. Proc. arts. 4735, 2121. Rendition of judgment means a signed
written judgment, not when the judgment was orally announced.36 Note that the
appeal may be premature if it is filed before the written judgment. La. Code Civ.
Proc. art. 1911; but see Overmeir v. Traylor, 475 So.2d 1094 (La. 1985) (signing of
final judgment cures defect). An appeal bond must also be filed within 24 hours
of judgment, in an amount set by the trial court. La. Code Civ. Proc. art. 4735.
The return day of the appeal is 30 days from the date costs are paid (45 days
if there is testimony to be transcribed), unless the trial judge fixes a lesser period.
The trial judge may grant only one extension for no more than 30 days. La. Code
Civ. Proc. arts. 2125-2125.1. Counsel for appellant should check with the Clerk’s
office to ascertain if the record has been completed, and to pay the costs of filing
an appeal, if an in forma pauperis order has not been obtained.
5.4.2.2 Justice of the Peace Court Evictions
La. Code Civ. Proc. arts. 4924-25 provide that appeals from judgments by a
justice of peace require the filing of a suit for trial de novo in the district court or
parish court. La. Code Civ. Proc. art. 4735 requires that suspensive appeals of
evictions be applied for within 24 hours of rendition of an eviction judgment. The
petition for appeal by trial de novo should include an order suspending the evic-
tion. The order should be sent to the justice of peace and landlord.37
Cases decided under the prior justice of peace appeal statutes held that a
motion for appeal must be filed with the justice of peace court. See Housing Author-
ity of St. John the Baptist v. Butler, 405 So.2d 1252 (La. App. 4 Cir. 1981). After
the 1986 amendments to art. 4924 and 5003, a district court has ruled that a
motion for appeal no longer has to be filed with the justice of peace court.38
Butler was decided before Act 156 of 1986 when the current La. Code Civ.
Proc. arts. 4924 and 5003 were respectively arts. 5002 and 5004. Butler cited
art. 5004 as authority for the proposition that art. 2121 governed and that there-
fore only the justice of peace court could grant the appeal. However, prior art.
5004 (now art. 5003) expressly applied to the chapter governing appeals of city,
parish and justice of the peace court judgments.
34
Raintree Court Apts. v. Bailey, No. 98-C-1138 (La. App. 5 Cir. 1998); Sonnier v. Bourque, 194 So.2d 78 (La. App. 1 Cir.
1940); Lord v. Broussard, 526 So.2d 458 (La. App. 5 Cir. 1988). Raintree Court Apts. can be found at 33 Clearinghouse
Rev. 343 (Sept.-Oct. 1999).
35
A sample writ application can be found for Bullins v. Covington Housing Authority in probono.net/la.
36
Housing Authority of City of Lake Charles v. Minor, 355 So.2d 270 (La. App. 3 Cir. 1977).
37
In other states, the courts have generally held that an appeal by “trial de novo” (without the requirement for any other
court order) suspends the original judgment. We are unaware of any Louisiana cases on this issue. Therefore, it is
strongly recommended that tenants comply with the Code Civ. Proc. art. 4735 requirements for a suspensive appeal.
Note, however, that in a related Louisiana context, the judicial grant of a new trial suspends the original judgment.
Wilson v. Compass Dockside, Inc., 635 So.2d 1171 (La. App. 4 Cir. 1994), writ denied 642 So.2d 1299 (La. 1994). Fur-
thermore, the omission of suspensive appeals from La. Code Civ. Proc. art. 4924, the appeal procedure for justice of
peace courts, strongly suggests that the art. 4924 statutory grant of a trial de novo suspends the original judgment.
38
A brief in opposition to a motion to dismiss appeal for failure to file a motion for appeal with the justice of peace court
can be found at probono.net/la.

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Act 156 of 1986 omitted justice of the peace courts from the chapter to which
art. 5003 (previously art. 5004) applies while retaining the language of arts. 5002
and 5004 in the new arts. 4924 and 5003. The new chapter governing justice of
the peace courts has no provision that makes art. 2121 applicable to appeals from
justice of the peace courts. In addition, La. Code Civ. Proc. art. 2081 expressly
states that art. 2121 is applicable to appeals to the courts of appeal and supreme
court.
5.4.3 Appeal Bonds
Most judges fix the suspensive appeal bond in an amount equal to the rent that
will accrue during the appeal. The motion for suspensive appeal should contain a
provision for setting the amount of the appeal bond. In forma pauperis litigants are
not exempted from the requirement of a suspensive appeal bond. La. Code Civ. Proc.
art. 5185(B). However, the appeal bond may not include the costs of appeal.39
A tenant may post a surety or cash bond. La. Civ. Code art. 3068.40 For sub-
sidized tenants, ask for the bond to be the tenant’s share of the rent. Form appeal
bonds may be provided by the court. The surety on the appeal bond must have
net assets in excess of the amount of the bond, and must be a resident of the
parish where the eviction is brought. La. Code Civ. Proc. art. 5122.41 The for-
malities of the bond must be strictly complied with, on penalty of subjecting the
surety to possible false swearing charges.
Some trial judges will unlawfully seek to defeat a tenant’s appeal. Examples
are:
• An order requiring payment of ongoing rents in addition to the posting of a
suspensive appeal bond. A & J, Inc. v. Ackel Real Estate, 831 So.2d 311 (La.
App. 5 Cir. 2002).
• Including court costs for eviction and appeal in bond amount when tenant is
in forma pauperis. La. Code Civ. Proc. art. 5181 (A) ; Johnson v. Sauer, 2012-
C-0022, (La. App. 4 Cir. 1/12/12) Filmore Parc Apartments v. Howard, 2004-
1299, (La. App. 4 Cir., 7/30/04).42
• A recall of the appeal once the tenant has posted the bond. Olivier v. Roland,
2003-C- 1916 (La. App. 4 Cir. 10/31/03)43; Vaughn v. American Bank & Trust
Co., 66 So.2d 4 (La. 1953).
• An order increasing the bond or to test its sufficiency on the judge’s own
motion. Estate of Helis v. Hoth, 137 So.2d 472 (La. App. 4 Cir.1962).
• Dismissal of an appeal for failure to pay estimated appeal costs without a
contradictory hearing. Ethel Kidd Real Estate, Inc., v. Abrams, 2003-C-2000
39
Johnson v. Sauer, 2012-C-0022, (La. App. 4 Cir. 1/12/12); Filmore Parc Apartments v. Howard,. 2004-1299 (La. App. 4 Cir.
7/30/04).
40
Case v. Case, 316 So.2d 418 (La. App. 2 Cir. 1975); Filmore Parc Apartments v. Howard, 2004-1299 (La. App. 4 Cir.,
7/30/04). The tenant’s brief in Filmore Parc Apartments v. Howard can be found at probono.net/la.
41
The surety may be liable for damages from delay caused by appeal if the tenant loses the eviction appeal. Typically,
damages include unpaid rent. The landlord has the burden of proving the delay damages. See e.g., Urban Homeowners’
Corp. v. Abrams, 692 So.2d 673 (La. App. 4 Cir. 1997).
42
See also, Brownell v. Brownell, 799 So.2d 587 (La. App. 3 Cir. 2001)(pauper can’t be ordered to pay court costs in install-
ments); Urban Homeowners’ Corp. v. Abrams, 692 So.2d 673 (La. App. 4 Cir. 1997)(appeal bond limited to damages sus-
tained by landlord as result of delay from appeal); cf. Matherne v. Matherne, 808 So.2d 571 (La. App. 1 Cir. 2001)(only
appeal costs may be included in the notice of estimated costs for appeal); Johnson v. First National Bank, 786 So.2d 84
(La. 2001)(writs appropriate to reduce excessive estimated costs of appeal).
43
The tenant’s brief in Olivier v. Roland can be found at probono.net/la.

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(La. App. 4 Cir. 11/14/03); Paddio-Johnson v. St. Helena H. Start, 610 So.2d
901 (La. App. 1 Cir. 1992); Burks v. McKean, 544 So.2d 502 (La. App. 2 Cir.
1989).
• Limiting a tenant to a cash bond only. La. Code Civ. Proc. art. 5121 et seq,,
La. Civ. Code art. 3068; Filmore Parc Apartments v. Howard, 2004-1299 (La.
App. 4 Cir. 7/30/04) (tenant has option of surety bond).
Furthermore, the judge may illegally try to defeat appellate review of his ille-
gal dismissal orders by taking ex parte action with little or no notice to the tenant.
Sample writ argument inserts or briefs on such issues can be found at
www.probono.net/la. If the landlord obtains an unlawful dismissal of a suspensive
appeal of an eviction from a court, it may be liable for the damages caused by the
tenant’s eviction.44
Under the jurisprudence, a trial court clearly loses jurisdiction to consider a
motion to dismiss the suspensive appeal or convert to a devolutive appeal when
the appeal bond is timely posted.45 Therefore, you should immediately file the
appeal and bond. Also, it appears that a trial court is divested of jurisdiction to
convert a suspensive appeal to a devolutive appeal in an eviction case when the
bond is not timely filed.46
The landlord may test the sufficiency, solvency, or legality of the bond by a
rule to show cause. La. Code Civ. Proc. art. 5123. If the surety is found insuffi-
cient or invalid, the tenant has 4 days to correct the deficiency by filing a new or
supplemental bond. La. Code Civ. Proc. art. 5124; Hoerner v. Paul, 392 So.2d 191
(La. App. 4 Cir. 1981)(4 day rule applies to eviction appeals). The tenant has two
opportunities to correct a deficient bond. La. Code Civ. Proc. art. 5126. The ten-
ant may file a corrected bond at any time prior to the filing of a rule to test the
original bond. La. Code Civ. Proc. art. 5124.
If your client is unable to obtain a surety bond, be prepared to file a motion
for an alternative bond, e.g., payment of each month’s rent as due into the court
registry. See, e.g., Steward v. West, 449 F. 2d 324 (5th Cir. 1971) (as long as the
tenant continued to pay rent, it was very unlikely that the landlord would suffer
any harm during the pendency of the appeal). Louisiana courts have authorized
the use of such alternative bonds. See, e.g., Robinson v Ventures LLC v. Dowl, 901
So2d 587 (La. App. 4 Cir. 2005)(payment of $300 monthly rent into court registry);
Lakewind East Apts. v. Poree, 629 So.2d 422 (La. App. 4 Cir. 1993)(payment of
monthly rent). In Gross v. Williams, 99-C-1865 (La. App. 4 Cir. 1999), the appellate
court reduced a subsidized tenant’s appeal bond to monthly payment of her share
of the rent into the court registry where the housing authority continued the pay-
ment of rent subsidies to the landlord.47
Failure to move for the dismissal of a suspensive appeal within 3 days of the
appeal record lodging may waive objections to the timeliness of a bond. La. Code
Civ. Proc. 2161; Wright v. Jefferson Roofing, Inc. 630 So.2d 773 (La. 1994); but see
Lakewind East Apts. v. Poree, 629 So.2d 422 (La. App. 4 Cir. 1993)(rule does not
apply to “continuing” bond of monthly rental payments).
44
Harding v. Monjure, 1 So.2d 116 (Orl. App. 1941).
45
Robertson v. Aztec Facility Services, Inc., 20 So. 3d 492, 494 (La. App. 4 Cir. 2009).
46
La. Code Civ. Proc. art. 2088 (B) as amended by Act 658 §1 of 2008.
47
The trial court had set the bond as monthly payments of the contract rent rather than the tenant’s rent share.

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5.4.4 Effect of Suspensive Appeal

A suspensive appeal stays the effect or execution of the eviction judgment.
If the tenant’s eviction appeal is denied by the court of appeal, the judgment
becomes final and executory in 30 days, unless the tenant applies for a writ of
certiorari. Timely application to the Louisiana Supreme Court for a writ of certio-
rari precludes execution of the eviction judgment until the Supreme Court rejects
the writ application or appeal.48 Note that tenants appealing justice of the peace
decisions apparently do not have a statutory suspension (similar to art. 2166)
when they seek supervisory review of a district or parish court appeal decision.
However, the higher court’s supervisory jurisdiction allows them to stay the evic-
tion pending review.
A final appellate judgment may be executed in the trial court without further
notice after the landlord has filed a certified copy of the appellate judgment with
the clerk of trial court. La. Code Civ. Proc. art. 2167.
The lease is not dissolved until the judgment decreeing cancellation becomes
final. A suspensive appeal not only stays execution, it stays the “effect” of a judg-
ment. Thus, the landlord’s and tenant’s obligations remain in effect during the
suspensive appeal.49 If the landlord attempts to evict or eject a tenant in violation
of the suspensive appeal or a stay order, he may be subject to a contempt action
for violation of a court order or damages for lease violations.50
5.4.5 Rent obligation during pendency of appeal
One court has held that a suspensive appeal does not suspend a tenant’s obli-
gation to pay rent as it becomes due during the appeal. Thus, failure to pay rent
in a subsequent month can constitute a separate cause of action for which the
landlord can sue to evict the tenant, despite the pendency of a suspensive appeal.
Sarpy v. Morgan, 426 So.2d 293 (La. App. 4 Cir. 1983). Given Sarpy, a tenant
should timely tender the rent as it becomes due during the appeal. Also, failure
to timely pay rent to the court registry pursuant to an appeal bond could result in
dismissal of the tenant’s suspensive appeal. Lakewind East Apts. v. Poree, 629
So.2d 422 (La. App. 4 Cir. 1993).
5.4.6 Motion to dismiss appeal
The following scenario threatens tenants with the loss of their constitutional
rights of appellate review of eviction judgments:
• tenant’s suspensive appeal is dismissed because of lack of an affirmative
defense, Modicut v. Brewer, supra, or inability to pay bond
• landlord executes the eviction judgment
• tenant moves out to avoid trespass charges, etc.
• the tenant’s devolutive appeal is then dismissed for mootness. See, Curran
Place Apts. v. Howard, 563 So.2d 577 (La. App. 4 Cir. 1990).
48
La. Code Civ. Proc. art. 2166; but see Nathans v. Vuci, 443 So.2d 690, 695 (La. App. 1 Cir 1983).
49
Cf. Reed v. Classified Parking System, 324 So.2d 484, 490 (La. App. 2 Cir. 1975); but see, Smith v. Castro Brothers Corp.,
443 So. 2d 660 (La. App. 4 Cir. 1983), writ denied 446 So.2d 1229, 1231 (La. 1984).
50
A suspensive appeal order suspends or stays the effect or execution of the judgment. La. Code Civ. Proc. art. 2123. Vio-
lation of a suspensive appeal order is punishable as contempt. See La. Code Civ. Proc. 224-27. Violation of a stay order
is punishable as contempt. See La. Code Civ. Proc. art. 3611 (violations of injunctions punishable as a contempt of court;
court may undo whatever was done in violation of an injunction and aggrieved party may recover damages).

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Howard was incorrectly decided. In New Orleans Hat Attack, Inc. v. N.Y. Life
Insurance Co., 665 So.2d 1186 (La. App. 4 Cir. 1995), the court held that an evicted
tenant who takes a devolutive appeal does not acquiesce in the judgment when
he vacates the premises and that, as a general rule, does not forfeit his right to a
devolutive appeal by compliance with the judgment.
New Orleans Hat Attack distinguished Howard and similar cases by noting
that they involved expired leases. Under New Orleans Hat Attack, the devolutive
appeal of a tenant with an unexpired lease would not be mooted out by his vacating
the premises. At trial, introduce the lease and evidence about the type of housing
involved. Leases of public and certain subsidized housing do not expire at the
end of their terms. Therefore, eviction appeals involving such leases should not
become moot.
It is also important to demonstrate that the tenant is not acquiescing in the
eviction judgment by moving out. One suggestion is to write a letter to the land-
lord or the landlord’s attorney saying that the tenant does not intend to forfeit his
appeal rights, and that he is only moving out to avoid a trespass charge.
A landlord who evicts a tenant during a devolutive appeal is monetarily liable
for wrongful eviction if the judgment is ultimately reversed.51 Ask the landlord
to agree to defer execution of eviction pending appeal. It is imprudent for a sub-
sidized landlord to evict during a devolutive appeal since he could lose his subsi-
dies during the appeal. A tenant who moves out should record a notice of his
devolutive appeal (notice of lis pendens) in the parish mortgage office under La.
Code Civ. Proc. art. 3751 et seq. in order to protect his rights against third par-
ties.52
In addition, a devolutive appeal is not moot because the eviction judgment
may be res judicata as to any subsequent suit for wrongful eviction.53 Note, how-
ever, that one court has held that ordinary claims asserted in defense of an eviction
do not constitute res judicata to a subsequent ordinary action for damages.54
Another court has held that an eviction judgment is not res judicata to a subse-
quent suit for wrongful eviction since the tenant could not have asserted her
claims in the eviction.55
5.4.7 Supervisory Writs
If a tenant cannot comply with the requirements for a suspensive appeal,
consider an application for supervisory writs and stay order. See, Uniform Rules
- Courts of Appeal 4.4; Doullut v. Rush, 77 So. 110 (La. 1917). Both the court of
appeal and the trial court have the discretion to stay the eviction pending the
determination of the supervisory writ application.56
51
Mangelle v. Abadie, 19 So. 670 (La. 1896); New Orleans Hat Attack, Inc. v. N.Y. Life Insurance Co., 665 So.2d 1186 (La.
App.4 Cir. 1995); see also Smith v. Shirley, 815 So.2d 980 (La. App. 3 Cir. 2002) writ denied 816 So.2d 308 (La. 2002).
52
See Ducote v. McCrossen, 675 So.2d 817 (La. App. 4 Cir. 1996).
53
Mangelle v. Abadie, 19 So. 670 (La. 1896); Olivier v. Roland, 03-1988 (La. App. 4 Cir. 6/22/04); New Orleans Hat Attack,
Inc. v. N.Y. Life Insurance Co., supra; see also Avenue Plaza LLC v. Falgoust, 676 So.2d 1077, 1082 (La. 1996); La. R.S.
13:4231 et seq.
54
Graci v. Gasper John Palazzo, Jr., LLC, 30 So.3d 915, 918 (La. App. 5 Cir. 2009) writ denied 31 So3d 394 (La. 2010).
55
Horacek v. Watson, 934 So.2d 908 (La. App. 3 Cir. 2006)(landlord wrongfully evicted tenant before it obtained eviction
judgment).
56
Uniform Rules - Courts of Appeal, Rule 4.4; A. Tate, Supervisory Powers of the Louisiana Courts of Appeals , 38 Tul. L.
Rev. 429, 435 (1954); see also Livingston Downs Racing Association v. Louisiana State Racing Com’n, 675 So.2d 1214,
1216 (La. App. 4 Cir. 1996)(stay issued pursuant to supervisory jurisdiction in devolutive appeal); but see Veillon v.
Veillon, 517 So.2d 941 (La. App. 3 Cir. 1987)(supervisory writs cannot be used as a substitute for suspensive appeal).

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A district or parish court hearing an appeal of a justice of peace court eviction

also has supervisory jurisdiction incidental to its appellate jurisdiction.57 As such,
the district or parish court should have discretion to issue a stay to prevent
irreparable injury. Irreparable injury exists for evictions of indigents.58
5.4.8 Motion for new trial
Sometimes, a tenant may come to you for help after judgment. A motion for
new trial must be granted if the judgment is contrary to the law and evidence.
La. Code Civ. Proc. art. 1972. A new trial may be granted for good cause. La.
Code Civ. Proc. art. 1973. The denial of a new eviction trial was reversed on appeal
where the notices of the hearing date were confusing.59
As a practical matter, you should file immediately for a new trial since evic-
tions are often executed within 24 to 48 hours of judgment. New trials in parish
or city courts must be applied for within 7 days of the mailing or service of the
notice of judgment. La. Code Civ. Proc. art. 4907. The delay for a new trial motion
in a justice of peace court is also 7 days. La. Code Civ. Proc. arts. 4925, 4922,
4831. A motion for new trial does not extend the deadline for a suspensive appeal
of an eviction.60 Therefore, it should include a motion for stay. If a new trial is
granted, the original judgment is set aside or suspended.61
5.4.9 Petition for nullity of judgment
If a motion for new trial or appeal is not available, the only other post-trial
remedy is a petition for nullity of judgment. This remedy presents most commonly
when a default judgment has been rendered against the client, and the client
alleges nonreceipt of service of process, payment of the rent before the eviction
judgment, or that the landlord told him not to attend the trial.
A petition for nullity of judgment may be appropriate if there are arguable
grounds for nullification. See, La. Code Civ. Proc. art. 2001-2006; Hughes v.
Sanders, 847 So.2d 165 (La. App. 2 Cir. 2003); CA One/Pampy’s v. Brown, 982
So.2d 909 (La. App. 4 Cir. 2008); Joiner v. Housing Authority of New Orleans. 238
So.2d 196, 197 (La. App. 4 Cir. 1970).
Default judgments of eviction based only on tacking service of the rule could
be subject to nullification because the United States Supreme Court has held that
tacking service is constitutionally inadequate in eviction cases. Greene v. Lindsey,
456 U.S. 444 (1982); La. Code Civ. Proc. art. 2002; but see, French Quarter Realty
v. Gambel, 921 So.2d 1025 (La. App. 4 Cir. 2005). The Constable of First City
Court for the City of New Orleans must also serve Rules for Possession by regular
mail pursuant to Sylvester v. Detweiler, USDC No. 84-3399 (E.D. La.)(class action
consent judgment based on Greene).
Misrepresentations by the landlord that are material to obtaining the default
judgment are grounds for nullification. Cf., Temple v. Jackson , 376 So.2d 972 (La.
App. 1 Cir. 1979). The typical misrepresentations that occur in eviction defaults
57
La. Const. Art. 5, §§ 2, 16 (B); In re Shintech, 734 So.2d 772 (La. App. 1 Cir. 1999), writ denied 746 So.2d 601 (La. 1999).
58
See e.g., Park Village Apartment Tenants Association v. Mortimer Howard Trust, 636 F.3d 1150, 1159 (9th Cir. 2011).
59
Housing Authority of City of Ferriday v. Parker, 629 So.2d 475 (La. App. 3 Cir. 1993). A denial of a new trial is an inter-
locutory order that may be reviewed in an appeal of a final judgment. Id.
60
Caveat: you must file the motion for suspensive appeal within 24 hours of rendition of the eviction judgment in order to
preserve the right to appeal suspensively. See also., Castagna v. Gonnet, 4 Peltiers Orl. App. Dec. 574 (Orl. App. 1920),
1920 WL 3122. (granting new trial does not suspend eviction judgment).
61
Wilson v. Compass Dockside, Inc. , 635 So.2d 1171 (La. App. 4 Cir. 1994) writ denied 642 So.2d 1299 (La. 1994); Oliver
v. Oliver, 411 So.2d 596, 597 (La. App. 1 Cir. 1982).

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are (1) that the lease is only month-to- month when the tenant has a written lease
for a fixed term, which precludes no cause evictions, and (2) nonpayment of rent
when the landlord has, in fact, accepted the rent.
Also, a judgment may be annulled where its enforcement would be uncon-
scionable and inequitable and in impairment of one’s legal right, even if no inten-
tional wrongdoing is found. Bradford v. Thomas, 499 So.2d 525 (La. App. 2 Cir.
1986), writ denied 503 So.2d 480 (La. 1987) (judgment placing universal legatee
under will in possession of testator’s estate was properly annulled for legatee’s
failure to present entire succession record to court, which would have informed
court that legatee’s right to possess was under formal attack).
Default judgments in which the record itself discloses an insufficient notice
to vacate, or a premature rule date, can usually be nullified since eviction court
judges generally recognize that a default judgment should not have been entered.
See generally, La. Code Civ. Proc. arts. 4732, 1701- 03; Baham v. Faust, 382 So.2d
211 (La. App. 4 Cir. 1972), writ denied 259 So.2d 916 (La. 1972).
A petition for nullity of judgment and injunctive relief should generally be
brought in the trial court that rendered the eviction judgment. La. Code Civ. Proc.
art. 2006. The petition for nullity of judgment may be filed in the eviction case.
A petition for nullity of judgment is an ordinary proceeding and does not stay
the execution of the allegedly null judgment. Therefore, such petitions should be
verified and include an application for a temporary restraining order and prelimi-
nary injunction. The tenant may be able to obtain a stay pending an appeal of the
preliminary injunction denial.62
The verified petition for nullity of judgment should include factual allegations
which show that the tenant will suffer irreparable injury if a temporary restraining
order is not granted. Irreparable injury is present in virtually all evictions in-
volving indigents. See e.g., Park Village Apartment Tenants Association v. Mortimer
Howard Trust, 636 F.3d 1150, 1159 (9th Cir. 2011); Jackson v. Jacobs, 971 F. Supp.
560, 565 (N.D. Ga. 1997). Irreparable injury is not required if the landlord has
violated a prohibitory law. See e.g., St. Charles Gaming v. Riverboat Gaming, 648
So.2d 1310 (La. 1995).
A preliminary injunction requires irreparable injury and a “prima facie” case
on the merits. Since irreparable injury generally exists in an eviction, the critical
issue for a preliminary injunction is whether the tenant has a “prima facie” case
on the merits. This is a relatively easy standard for a tenant to meet.63 Prelimi-
nary injunctions are often tried on affidavits. For an annulment at the trial on the
merits, the tenant needs to prove a “fraud or ill practice” by a preponderance of
evidence. The court may award attorney fees if the eviction judgment is annulled
for fraud or ill practices.64
5.5 FEDERAL REMEDIES AND DEFENSES
5.5.1 Fair Housing Act
Eviction of tenants based on unlawful discrimination can be enjoined under
the Fair Housing Act and 42 U.S.C. § 1982. See e.g, Bill v. Hodges, 628 F. 2d 844,
845 (4th Cir. 1980).65
62
See. e.g., Housing Authority of New Orleans v. Lee, 480 So.2d 998 (La. App. 4 Cir. 1985).
63
See, e.g., Continental Titles, Inc. v. U.S. Fire Insurance Co., 413 So.2d 216 (La. App. 4 Cir. 1982).
64
La. Code Civ. Proc. art. 2004 (C); Filson v. Windsor Court Hotel, 990 So.2d 63 (La. App. 4 Cir. 2008).
65
The Anti-Injunction Act does not prohibit a federal court from enjoining a landlord from filing a state court eviction law-
suit. However, the courts are split as to whether a federal court may enjoin a state court eviction lawsuit that was filed
before the tenant obtained an injunction in a federal Fair Housing Act lawsuit.

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Federal injunctive relief may not be feasible if the tenant’s entitlement

depends on contested factual issues. See, e.g., Higbee v. Starro, 698 F.2d 945 (8th
Cir. 1983) (injunction of retaliatory eviction denied because of difficulty of proving
that retaliation was substantial motivating factor in decision to evict). Housing
discrimination cases involving contested factual issues and a discriminatory evic-
tion may be better litigated in state district court where lis pendens will require
the eviction to be litigated in district court if the tenant’s affirmative lawsuit is
filed first.66
5.5.2 Age Discrimination Act of 1975
The Age Discrimination Act of 1975 prohibits discrimination based on age
in programs or activities that receive federal assistance.67 HUD regulations imple-
ment the ADA and provide examples of how it applies.68 A complainant must
exhaust administrative remedies by first filing a complaint with HUD.69 A com-
plainant may file a lawsuit to enforce the ADA only (1) after 180 days have passed
since the complainant filed an age discrimination complaint with HUD or (2) after
HUD issues a finding in favor of the federal assistance recipient.70 The ADA also
prohibits retaliation for filing a complaint with HUD or advocating for rights pro-
tected under the ADA.71
5.5.3 Bankruptcy Code
Finally, evictions are automatically stayed by the filing of a bankruptcy peti-
tion. 11 U.S.C.§ 362 (a)(3). 72 There are two exceptions to a § 362 bankruptcy
stay of evictions: (1) the eviction judgment was obtained prior to bankruptcy filing
and (2) an eviction based on “endangerment” of property or illegal drug use on
the property by tenant within 30 days prior to the filing of the bankruptcy. 11
U.S.C. § 362(b)(22)-(23).
A complaint to enforce the stay should be filed with the bankruptcy court in
order to bar any attempted state court eviction. Violations of the stay create a
private cause of action for damages.73 Bankruptcy petitions, particularly Ch. 13
reorganizations, can be a powerful remedy for public housing tenants who face
eviction for nonpayment of rent.74
The landlord’s efforts to evict, seize tenant property or collect rent after the
tenant has filed a petition in bankruptcy violates the automatic stay and justifies
the award of damages and attorney’s fees. See In re Ozenne, 337 B.R. 214 (9th Cir.
BAP 2006). Attorneys acting on behalf of landlords or other creditors may be
personally held in contempt for their participation in stay violations.
However, the bankruptcy code provides relief from the automatic stay in cer-
tain cases. 11 U.S.C. § 362(d). Many housing issues will be litigated through
opposition to relief from the stay or motions to vacate the stay.
66
Cf. Spallino v. Monarch Sign, 771 So.2d 784 (La. App. 3 Cir. 2000).
67
42 U.S.C. 6101 et seq.
68
24. C.F.R. § 146. For examples of the 4 part test for age discrimination, see 51 Fed. Register 45264-01 (Dec. 17, 1986).
69
See 24 C.F.R. §§ 146.33, 146.39, 146.45.
70
U.S.C. § 6104(f); 24 C.F.R. § 146.45; Parker v. Board of Supervisors, 296 Fed. Appx. 414 (5th Cir. 2008).
71
42 U.S.C. § 6103; 24 C.F.R. § 146.41.
72
In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir. 1982); In re Burch, 401 B.R. 153 (Bankr. E.D. Pa. 2008)
73
Pettite v. Baker, 876 F.2d 456 (5th Cir. 1989).
74
In re Stoltz, 315 F.3d 80 (2d Cir. 2002); contra Housing Authority v. Eason., 12 So.3d 970 (La. 2009) rev’g 9 So.2d 269
(La. App. 4 Cir. 2009); see M.Moreau, State Appellate Court Recognizes Bankruptcy as Public Housing Defense, 39 Housing
Law Bulletin 137 (June 2009).

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5.5.4 Violations of federal law

Occasionally, a tenant may be able to obtain a federal court injunction against
an eviction. For example, execution of a default eviction judgment based only on
tacking service should be enjoinable in federal court. Cf. Greene v. Lindsey, 456
U.S. 444 (1982); Porter v. Lee, 328 U.S. 246 (1946). Subsidized housing tenants
may be able to enjoin evictions brought in violation of constitutional rights or fed-
eral regulations. See generally, National Housing Law Project, HUD Housing Pro-
grams, Ch. 14 (4th ed. 2012).
Under the Supremacy Clause, state courts must consider and apply any rel-
evant federal law defenses to evictions.75 For public or subsidized housing, federal
law may provide defenses which limit the grounds for eviction, prohibit non-
renewal of lease or prescribe notice and other procedural prerequisites to eviction.
Other violations of federal law in the subsidized housing context could include
retaliatory evictions, failure to give pre-termination grievance hearings, pre-trial
discovery or unequal treatment.76

5.6 DEFENSES TO JUDICIAL EVICTION

5.6.1 Introduction
Your client’s eviction will be based on either (1) “no cause”, i.e., the expiration
of the lease, (2) nonpayment of rent, or (3) “good cause”, i.e., a material violation
of the lease. No cause evictions most commonly involve 10 day terminations of
month-to-month leases.
Defenses vary according to the type of eviction. The most common defenses
to the major types of eviction are discussed below. Procedural defenses, e.g.,
inadequate notice to vacate or premature rule for possession, apply to all evictions.
See discussion below.
5.6.2 No Cause Eviction
5.6.2.1 Inadequate Notice to Vacate
A notice to vacate must be timely, written and properly served. La. Civ. Code
art. 2728; La. Code Civ. Proc. art. 4701-03. An improper notice to vacate should
result in the dismissal of the rule for possession. Versailles Arms Apartments v.
Pete, 545 So.2d 1193, 1195 (La. App. 4 Cir. 1989).77 For public and subsidized
housing, always check if any federal laws for notice and service have been met.
Termination of a month-to-month lease requires at least 10 days notice before
the end of the rental month. La. Civ. Code art. 2728; Solet v. Brooks, 30 So.3d 96,
101 (La. App. 1 Cir. 2009).78 The notice to terminate a month-to-month lease for
“no cause” may not be waived in advance. La. Civ. Code art. 2718.79 If the notice
is untimely for a rental month, the landlord may not evict until the end of the next
75
Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268 (1969); Testa v. Katt, 330 U.S. 386 (1947).
76
Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985)(federal statutory right to grievance hearing)
77
If a prematurity exception is sustained for an improper notice to vacate, the premature lawsuit must be dismissed. La.
Code Civ. Proc. art. 933 (A); Lichtentag v. Burns, 258 So.2d 211 (La. App. 4 Cir. 1972) writ denied 259 So.2d 916 (La.
1972); Leger v. Lancaster, 423 So.2d 88, 89 (La. App. 1 Cir. 1982). Prematurity of a lawsuit cannot be cured by an
amended pleading. Duncan v. Duncan, 359 So.2d 1310 (La. App. 1 Cir. 1978). But see River Garden Apts. v. Robinson,
__So.3d__, 2013 WL 264633 (La. App. 4 Cir. 2013) (eviction judgment not reversed where inadequate notice did not
harm or prejudice tenant).
78
See also Doland v. ACM Gaming Co., 921 So.2d 196, 202 (La. App. 3 Cir. 2005); Houston v. Chargois, 732 So.2d 71 (La.
App. 4 Cir. 1999).
79
The written waiver of the notice required by La. Code Civ. Proc. art. 4701 (last paragraph) may not waive the 10 day
notice required to terminate a month-to-month lease. La. Civil Code art. 2718 prohibits waiver of the 10 day notice.

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rental month.80 Leases that have reconducted on a month-to-month basis have

been held to require only a 10 day notice even where the lease specifies a longer
notice period. May v. Alley, 599 So.2d 459 (La. App. 2 Cir. 1992).81
Under federal law, a tenant in foreclosed property can’t be evicted unless at
least 90 days notice is given. 12 U.S.C. § 5220; Bank of New York Mellon v. De
Meo, 254 P.3d 1138 (Ariz. App. 2011).82
Untimely service of the notice to vacate is commonly accepted by the trial
courts as a defense to a no cause eviction. The date of delivery of the notice to
vacate should not be included in the computation of the 10 day period to terminate
a month-to-month lease. La. Code Civ. Proc. art. 5059. The last day of the period
should be included unless it is a legal holiday, in which case the period runs until
the end of the next day which is not a legal holiday. La. Code Civ. Proc. art. 5059.
Service of the notice to vacate may be made by personal, domiciliary or
tacking service. La. Code Civ. Proc. arts. 1231-34, 4703. In addition, a notice to
vacate can sometimes be served by mail or fax.83 The notice to vacate may not be
served by a justice of the peace. La. Atty. Gen. Op. 97-295, 97-349. If this hap-
pens, the judge may have to recuse himself since he acted as the landlord’s agent.
Tacking service of the notice to vacate by the sheriff or landlord has been
upheld by Louisiana courts.84 The sufficiency of tacking service of the notice to
vacate is not altered by Greene v. Lindsey, 456 U.S. 444 (1982) because the
Supreme Court only invalidated tacking service of eviction lawsuits. However,
tacking service is theoretically permissible only in limited circumstances, i.e., “if
the premises are abandoned or closed, or if the whereabouts of the lessee or occu-
pant is unknown.” La. Code Civ. Proc. art. 4703. Whether tacking service was
properly used by a landlord is a factual question.85
The defense of improper use of tacking service is difficult to prove because
the sheriff’s return showing service is presumed to be correct. The burden is on
the tenant to prove the incorrectness of the sheriff’s return by a preponderance of
evidence. Hall v. Folger Coffee Co., 874 So.2d 90, 96 (La. 2004).
It should be noted that no presumption of correctness applies when the notice
to vacate is served by the landlord rather than the sheriff. Here, service of the
notice must be proven by competent evidence. Where the credibility of neither is
attacked, contradictory testimony by the landlord and the tenant requires a deci-
sion in favor of the tenant. See Alphonso v. Alphonso, 422 So.2d 210 (La. App. 4
Cir. 1982). If service was by regular mail, the landlord would probably be unable
to establish the actual date of delivery.
The notice to vacate must be introduced into evidence for the court to con-
sider it as part of the landlord’s prima facie case for eviction. Monroe Housing
Authority v. Coleman, 70 So.3d 871 (La. App. 2 Cir. 2011). For public or subsidized
housing, always check if the federal rules for notice and service have been met.
80
Torco Oil Co. v. Grif-Dun Group, Inc., 617 So.2d 102, 104 (La. App. 4 Cir. 1993).
81
See also, La. Civ. Code art. 2724.
82
12 U.S.C. § 5220 expires on December 31, 2014 unless extended.
83
See Maxwell, Inc. v. Mack Trucks, Inc., 172 So. 2d 297 (La. App. 4 Cir. 1965), writ denied 174 So.2d 131 (La. 1965)(mail);
Poydras Center LLC v. Intradel Corp., 81 So.3d 80 (La. App. 4 Cir. 2011) (fax).
84
Fairfield Property Mgt. v. Evans, 589 So.2d 83 (La. App. 2 Cir. 1991); Ernest Joubert Company v. Tatum , 332 So. 2d 553
(La. App. 4 Cir. 1976); Alaimo v. Hepinstall, 377 So.2d 889 (La. App. 4 Cir. 1979).
85
Friedman v. Hofchar, 424 So.2d 496, 498 (La. App. 5 Cir. 1982), writ denied 430 So.2d 74 (La. 1983).

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5.6.2.2 Premature Rule for Possession

The landlord’s rule for possession is premature if it is filed before the expi-
ration of the applicable delay, 5 or 10 days, required for the notice to vacate. The
landlord must allow the tenant a full 5 or 10 days from the date of service of the
notice to vacate before filing a rule for possession in court. La. Code Civ. Proc.
arts. 4701; 4731; Owens v. Munson, 2009 WL 3454507 (La. App. 1 Cir. 2009);
Lichtentag v. Burns, 258 So.2d 211 (La. App. 4 Cir. 1972), writ denied 259 So.2d
916 (La. 1972). In addition, a rule may not be heard until the third day after valid
service on the tenant. South Peters Plaza, Inc. v. PJ Inc., 933 So.2d 876 (La. App.
4 Cir. 2006).
A legal holiday is not included in the computation of the period for a 5 day
notice to vacate or where it would otherwise be the last day of the notice period
(whether 5 days or 10 days). La. Code Civ. Proc. art. 5059 (definition of legal
holidays per parish or court); La. Rev. Stat. 1:55; Lichtentag v. Burns, supra (5
day notice); South Peters Plaza, Inc. v. PJ Inc. Bendana v. Stokes, supra (3 day delay
for rule for possession).
5.6.2.3 Lease or Other Agreement
An unexpired fixed term lease is a defense to a no cause eviction. Monroe
Housing Authority v. Coleman, 70 So.3d 871 (La. App. 2 Cir. 2011)(eviction denied
if unexpired lease and no proof of lease violation). A fixed term lease cannot be
canceled for no cause by a 10 day notice to vacate (unless the lease has a “no
cause” cancellation provision). La. Civ. Code arts. 2728, 1983; Shell Oil v. Siddiqui,
722 So.2d 1197 (La. App. 5 Cir. 1998). However, some eviction court judges mis-
takenly believe that any lease can be canceled for no cause on 10 days notice to
vacate.
A lease may be either written or oral. La. Civ. Code art. 2681. Oral modifi-
cations or the parties’ course of conduct can change a written lease.86 Oral leases
are binding if proved. 87 A lease may be inferred from the facts, circumstances and
acts of the parties.88 A lease agreement where the rent is the tenant’s repair work
has been construed as a lease with a term sufficient for the tenant to realize the
fair value of his repairs. See e.g., Wolf v. Walker, 342 So.2d 1122 (La. App. 4 Cir.
1976). An unsigned lease can be evidence of a lease agreement.89
A written or oral agreement to lease can be a defense to a no cause eviction
even if the final agreement of lease has not been signed.90 However, in order to
enforce the agreement to lease, the tenant must be able to prove that all of the
details and conditions of the lease were agreed to and understood by the parties.
A third party beneficiary can use a third party beneficiary contract (stipula-
tion pour autrui), that confers a continued right of occupancy, as a defense to a
no cause eviction. La. Civ. Code arts. 1978, 1987; La. Code Civ. Proc. arts. 424,
86
Karno v. Fein Caterer, 846 So.2d 105 (La. App. 4 Cir. 2003). The proponent of oral modifications of a written lease should
introduce written or oral evidence of the modifications. Poydras Center LLC v. Intradel Corp., 81 So.3d 80 (La. App. 4 Cir.
2011)(e-mails not considered written lease amendments where not signed; proponent failed to introduce evidence of
oral modifications).
87
Holt v. Bethany Land Co., 843 So.2d 606 (La. App. 2 Cir. 2003).
88
Southern Treats, Inc. v. Titan Properties, LLC, 927 So.2d 677, 683 (La. App. 2 Cir. 2007).
89
Williams v. Bass, 847 So.2d 80 (La. App. 2 Cir. 2003).
90
See, e.g., City of New Orleans v. Cheramie, 509 So.2d 58 (La. App. 1 Cir. 1987), writ denied 512 So.2d 463; City of New
Orleans v. Hautot, 185 So.2d 24 (La. App. 4 Cir. 1966); Auto-Lec Stores v. Quachita Valley Camp No. 10 W.O.W., 171 So.
62 (La. 1936).

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4732; cf., Miller v. White, 162 So. 638 (La. 1935); Tri- Parish Heating & Air Condi-
tioning v. Brown, 338 So.2d 126 (La. App. 1 Cir. 1976). For definitions of stipu-
lation pour autrui and third party beneficiary contract, see Hargroder v. Columbia
Gulf Transmission Co. , 290 So.2d 874 (La. 1974); Logan v. Hollier, 699 F. 2d 758
(La. App. 5th Cir. 1983); Holbrook v. Pitt , 643 F. 2d 1261 (7th Cir. 1981); Free v.
Landrieu, 666 F. 2d 698 (1st Cir. 1981) (Section 8 HAP contract is a third party
beneficiary contract).
5.6.2.4 Federally Subsidized Housing Programs
Of course, tenants in federally subsidized housing programs often cannot be
evicted for no cause. See e.g., Thorpe v. Housing Authority of the City of Durham,
393 U.S. 268 (1969); 42 U.S.C. § 1437f(o)(7)(C)(Section 8 voucher housing); 24
C.F.R. § 982.310 (Section 8 voucher housing); 42 U.S.C. § 1437d(l)(5)(public hous-
ing); 24 C.F.R. § 966.4 (public housing); Rev. Rul. 2004-82 (low-income tax credit
housing); 24 C.F.R. § 247.3 (§§ 202, 221, 236 multifamily projects); 7 C.F.R.
§3560.159 (rural housing). State courts have a duty to enforce federal laws that
prohibit no cause evictions. U.S. Const. Art. VI; see Testa v. Katt, 330 U.S. 386
(1947); Lee v. Florida, 392 U.S. 378, 385-86 (1968).The Section 8 housing voucher
program now allows termination for “no cause” after the expiration of the initial
lease term.
5.6.2.5 Acceptance of Rent
Acceptance of the rent after the required notice to vacate, but before the judg-
ment of eviction, vitiates the notice to vacate, and prevents the landlord from
obtaining judgment based on the notice.91 Acceptance of rent after a notice to
terminate a month-to-month lease vitiates the notice and reinstates the lease.92
The notice to vacate may even be vitiated if the landlord delayed in returning the
tenant’s rent payment.93 Acceptance of part of the rent vitiates the notice to
vacate.94
5.6.2.6 Failure to prove expired lease
Failure to prove expiration of the lease will defeat the eviction. Monroe Hous-
ing Authority v. Coleman, 70 So.3d 871 (La. App. 2 Cir. 2011). Even a “no cause”
eviction requires evidence of the landlord’s right to possession. Poydras Center
LLC v. Intradel Corp., 81 So.3d 80 (La. App. 4 Cir. 2011).

5.6.2.7 Abuse of Right (Retaliatory Eviction)

An abuse of right is an act which objectively appears to be an exercise of an
individual right, but which is not protected by the courts because it is exercised
with a predominant intent to harm; or it is performed without a serious and legit-
imate interest; or it is contrary to good faith or moral rules. Cueta-Rua, Abuse of
Rights, 35 La. L. Rev. 965 (1975). Retaliatory eviction is the refusal to renew a
91
Billiot v. Hue, 2011 WL 1944120 (La. App. 1 Cir. 2011); Housing Authority of Town of Lake Providence v. Allen, 486 So.2d
1064 (La. App. 2 Cir. 1986); Passalaqua v. Mendez, 388 So. 2d 1172 (La. App. 4 Cir. 1980); Mitchell v. V-6 Co. Inc., 372
So.2d 645 (La. App. 1 Cir. 1979).
92
Four Seasons, Inc. v. New Orleans Silversmiths, Inc., 223 So.2d 686 (La. App. 4 Cir. 1969) ; Bowling v. USA, Inc. v. Genco,
536 So.2d 814 (La. App. 1 Cir. 1988).
93
Four Seasons, Inc. v. New Orleans Silversmiths, Inc., 223 So.2d 686 (La. App. 4 Cir. 1969).
94
Adams v. Dividend, Inc., 447 So.2d 80 (La. App. 4 Cir. 1984); Thompson v. Avenue of Americas Corp., 499 So.2d 1093 (La.
App. 3 Cir. 1986); Housing Authority of Town of Lake Providence v. Burks, 486 So.2d 1068 (La. App. 2 Cir. 1986).

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fixed term lease in retaliation for a tenant’s attempt to secure his rights under
the lease or applicable law. The abuse of right defense has been expressly recog-
nized as an eviction defense.95
The key to winning a retaliatory eviction defense is proving the landlord’s
retaliatory motive. The proof of retaliatory intent is often difficult. Unless the
landlord issues actual threats, the evidence of his intent may amount to no more
than the juxtaposition of a threat of some kind followed by a notice to vacate.
Legislation in some states creates a presumption that a notice which follows
soon after an act by the tenant to secure his rights is retaliatory. G. Armstrong,
Louisiana Landlord and Tenant Law (1988). Louisiana currently requires the tenant
to prove that the notice to vacate was issued in retaliation for a good faith attempt
by the tenant to secure his rights. Real Estate Services, Inc. v. Barnes, 451 So.2d
1229 (La. App. 4 Cir. 1981).
If the landlord is a government agency, it may not retaliate by evicting a ten-
ant for exercising constitutional rights such as First Amendment rights. McQueen
v. Druker, 317 F. Supp. 1122, 1131 (D. Mass. 1970) aff’d 438 F.2d 781 (1st Cir.
1971).
5.6.2.8 Owner-Occupant Relationship
Occasionally, a no cause eviction can be delayed if it is brought as a rule to
evict a tenant when there is an owner-occupant relationship, rather than a land-
lord-tenant relationship, between the litigants. A rule to evict a tenant may be
subject to a defense of no cause of action if the defendant is an occupant rather
than a tenant. See, e.g., Edwards v. Edwards, 439 So.2d 478 (La. App. 1 Cir. 1983);
Stroughter v. Shepard, 207 So.2d 865 (La. App. 4 Cir. 1968). To evict, an owner
must prove that the defendant is an occupant as defined by Code Civ. Proc. art.
4704 and that the purpose of the occupancy has ceased. Moody Inv. Corp. v. Occu-
pants of 901 East 70th St., 990 So.2d 119, 122 (La. App. 2 Cir. 2008).
5.6.3 Eviction for Nonpayment of Rent
5.6.3.1 Unauthorized use of summary proceedings and prematurity of evic-
tion suit
Civil Code art. 2704 provides that if a tenant fails to pay rent, the landlord
may seek dissolution in accordance with Civil Code art. 2013-24, and may regain
possession in the manner provided by La. Code Civ. Proc. art. 4701-05, 4731-35.
Significantly, the 2004 revisions to art. 2704 eliminated the landlord’s right under
the repealed Civil Code art. 2712 to seek immediate eviction for non-payment of
rent under the Code of Civil Procedure’s summary eviction procedures. If the
lease does not have an express dissolution clause for non-payment of rent, the
landlord must first serve the tenant with a notice to perform within a certain time
before seeking eviction. Solet v. Brooks, 30 So.3d 96, 101 (La. App. 1 Cir. 2009).96
Since most leases have dissolution clauses, this defense or exception will most
commonly present in oral leases, poorly drafted leases or where the written lease
is not introduced into evidence.
95
Owens & Sons v. Casey, 659 So.2d 541 (La. App. 4 Cir. 1995); Capone v. Kenny, 646 So.2d 510 (La. App. 4 Cir. 1994); see
also, Illinois Central R. Co. v. International Harvester, 368 So.2d 1009, 1013-15 (La. 1979); Housing Authority of City of
Abbeville v. Hebert , 387 So.2d 693 (La. App. 3 Cir. 1980), writ refused 394 So.2d 275 (La. 1980), writ not considered 396
So.2d 882 (La. 1981).
96
Marie Moore, New Civil Code Lease Articles: New Words; New Rules; New Issues (2004).

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5.6.3.2 Determination of Rent Due

Rent may not legally be increased during the term of a lease in the absence
of a valid rent escalation clause. La. Civ. Code art. 1983. Escalation clauses can
be invalidated if the price is not readily ascertainable, or is dependent on the land-
lord’s whim.97 A landlord cannot unilaterally increase a month-to-month tenant’s
rent unless 10 days notice is given prior to the expiration of the current rental
month. La. Civ. Code arts. 2728, 1983.
In the case of a federally subsidized tenant, the determination of the rent due
may be a complex legal and factual question which could be dispositive of the evic-
tion lawsuit.98 Public housing evictions can also be defeated by the defense of rent
abatement. HANO v. Wilson, 503 So.2d 565 (La. App. 4 Cir. 1987). In the public
housing context, “rent abatement” means extinguishment of the rent obligation (not
a mere suspension of the obligation) for the months that abatement was ordered.
Some judges will not allow an eviction for nonpayment of rent if the rent has
been tendered, but refused because it was not accompanied by payment of nonrent
charges, e.g., alleged late fees or property damage. Cf. La. Civ. Code art. 2704.
5.6.3.3 Payment
This defense is self-explanatory. However, several issues merit investigation:
1. Was payment tendered, but refused? See Cantrell v. Collins, 984 So2d 738
(La. App. 1 Cir. 2008).
2 Has the landlord wrongfully applied a rent payment to a nonrent obligation?
See La. Civ. Code arts. 1864-1867.
3. Are there any circumstances surrounding the nonpayment of rent which
would persuade a court to exercise its equitable discretion not to evict ?
4. Has the landlord accepted the rent prior to the eviction trial or delayed in
returning a tenant’s rent payment? See Pasalaqua v. Mendez , 388 So 2d 1172
(La. App. 4 Cir. 1980); Four Seasons, Inc. v. New Orleans Silversmiths, Inc.,
223 So.2d 686 (La. App. 4 Cir. 1969).
5. Has the tenant paid the rent through an agreement to make repairs in lieu of
rent? Wolf v. Walker, 342 So.2d 1122 (La. App. 4 Cir. 1976).
Acceptance of the rent after the judgment generally does not vitiate the notice
to vacate. Nathans v. Vuci, 443 So.2d 690 (La. App. 1 Cir. 1983). But see, Deslonde
v. O’Hern, 1 So. 286 (La. 1887) (improper for landlord to execute judgment if
acceptance of rent created a new lease obligation).
5.6.3.4 Tender
A landlord cannot evict a tenant for nonpayment of rent if he improperly refused
the tenant’s tender of rent. A timely tender of rent constitutes payment. See La.
Civ. Code art. 1869.99 The tenant should take the necessary steps to perfect a valid
tender. Generally, it is not necessary to deposit the rent in the court registry.100
97
See, e.g., La. Atty. Gen. Op. 79-1295 (Dec. 3, 1979); 78-937 (July 21, 1978); Arata v. Louisiana Stadium and Exposition
District , 225 So. 2d 362, 366 (La. 1969), cert. denied 396 U.S. 279 (1970).
98
See, e.g., Peoria Housing Authority v. Sanders. 298 N.E. 2d 173 (Ill. 1973); see also National Housing Law Project, HUD
Housing Programs, Ch. 3 (4th ed. 2012).
99
Cantrell v. Collins, 984 So2d 738 (La. App. 1 Cir. 2008); Adams v. Dividend, Inc., 447 So.2d 80 (La. App. 4 Cir. 1984);
Herman Investments, Inc. v. Lighthouse Club, Inc., 378 So.2d 515 (La. App. 4 Cir. 1979); Saxton v. Para Rubber Co. of
Louisiana, 118 So. 64 (La. 1928).
100
Adams v. Dividend, Inc., 447 So.2d 80, 83 (La. App. 4 Cir. 1984).

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Under present Louisiana law, a private landlord has the right to evict a tenant
who tenders the rent after the due date, even if the tender occurred prior to the
notice to vacate or rule for possession (absent a rectification period clause, appli-
cation of Civil Code art. 2013-15, or custom of late payment).101 Nonetheless,
some courts will refuse to evict a tenant if the rent was offered prior to the notice
to vacate, rule for possession, or trial.

5.6.3.5 Rectification Period

Payment of rent within a rectification or curative period provided by the lease
agreement (oral or written), or other law, would bar an eviction for nonpayment
of rent.102 Failure to give a proper “cease and desist” notice for an alleged lease
violation bars the landlord from seeking eviction for that violation.
Civil Code art. 2704 and 2015 may require a reasonable rectification period
for non-payment of rent if the lease does not have a dissolution clause for non-
payment of rent. See Solet v. Brooks, 30 So.3d 96, 101 (La. App. 1 Cir. 2009). 7
C.F.R. § 3560.159(a) mandates rectification clauses for rural housing.
5.6.3.6 Custom of Late or Partial Payment
The untimely tender of rent may be a defense if a custom of accepting late or
partial payment has developed. In this situation, the landlord is deemed to have
waived his right to demand strict compliance with the lease without first putting
the tenant in default, or otherwise giving notice that timely payment will be
required in the future.103
However, there are cases that say that no custom of late payment is estab-
lished if the landlord has made frequent and unsuccessful demands for punctual
payment, or where acceptance of late payments is the result of unwilling indul-
gence on the landlord’s part.104
5.6.3.7 Repair and Deduct
A tenant may use the repair and deduct provisions of Louisiana Civil Code
art. 2694 as an affirmative defense to an eviction for nonpayment of rent. 105 A
detailed discussion of the requirements for proper utilization of the repair and
deduct remedy is provided in § 7.3 infra. Because of the technical nature of the
repair and deduct law, it is best to carefully plan this defense with the tenant
before the rent is withheld and the repairs are made. If the tenant fails to prove
one or more elements of a repair and deduct defense, it may be possible to avoid
lease cancellation by convincing the court that he acted in good faith.106
101
See, Noble v. Coleman, 423 So.2d 776 (La. App. 4 Cir. 1982); Dorsa v. Parent, 352 So.2d 258 (La. App. 1 Cir. 1977);
Himbola Manor Apartments v. Allen, 315 So.2d 790 (La. App. 3 Cir.1975).
102
See, D & D Investment v. First Bank, 831 So.2d 488 (La. App. 5 Cir. 2002); Shell Oil v. Siddiqui, 722 So.2d 1197 (La.
App. 5 Cir. 1998); Sands v. McConnell, 426 So. 2d 218 (La. App. 4 Cir. 1982); Ford v. Independent Bakers Supply, Inc.,
385 So.2d 580 (La. App. 4 Cir. 1980).
103
See,e.g., Versailles Arms Apartments v. Pete, 545 So.2d 1193 (La. App. 4 Cir. 1989); Housing Authority v. Allen, 486
So.2d 1064 (La. App. 2d Cir. 1986); Housing Authority of St. John the Baptist Parish v. Sheperd, 447 So.2d 1232 (La.
App. 5th Cir. 1984); Grace Apartments v. Hill , 428 So.2d 862 (La. App. 1 Cir. 1983)(partial rent). Delay in payment
beyond the customary payment date may defeat the custom defense. Maestri v. Nall, 145 So. 128 (Orl. App. 1937).
104
Himbola Manor Apartments v. Allen, 315 So.2d 790 (La. App. 3 Cir. 1975); cf. Shank-Jewella v. Diamond Gallery, 535
So.2d 1207 (La. App. 2 Cir. 1988) (acceptance of late payments involuntary). However, see Jones v. Paul, 254 So.2d
915 (La. App. 1 Cir. 1971), where the court held that a custom was established even if the landlord “involuntarily”
accepted late rent.
105
Lake Forest, Inc. v. Katz & Besthoff No. 9 Inc., 391 So.2d 1286 (La. App. 4 Cir. 1980); Cameron v. Krantz, 299 So.2d
919 (La. App. 3 Cir. 1974).
106
Plunkett v. D & L Family Pharmacy, 562 So.2d 1048, 1052 (La. App. 3 Cir. 1990).

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5.6.3.8 Equitable Discretion of Court or “Judicial Control”

Act 821 of 2004 may have broadened the court’s authority to judicially control
an eviction for nonpayment of rent. Louisiana courts have always had equitable
discretion not to cancel a lease. However, Act 821 substituted a new article 2704
for the prior article 2712 which governed evictions for nonpayment of rent. Article
2704 expressly incorporates the Civil Code articles on obligations and contracts
as the manner for regaining possession. Civil Code article 2013 expressly allows
the court to give the tenant additional time to perform.
A court has the equitable discretion to refuse to cancel a lease for nonpayment
of rent in certain circumstances.107 A tenant’s failure to pay rent timely does not
automatically require termination of the lease.108 The court’s equitable discretion
is usually exercised in cases where the nonpayment of rent was not willful and
where the landlord is immediately made whole. See, Atkinson v. Richeson, 393 So.2d
801 (La. App. 2 Cir. 1981) (tenant erroneously believed that his wife had paid rent
and immediately attempted to cure default upon notice); Housing Authority of Lake
Charles v. Minor, 355 So.2d 271 (La. App. 3 Cir. 1977) (tenant’s employment check
bounced, but he immediately attempted to remedy the situation); Edwards v. Stan-
dard Oil Co. of La., 144 So. 430 (La. 1932) (rent check unduly delayed in mail);
Belvin v. Sikes, 2 So.2d 65 (La. App. 2 Cir. 1941) (tenant’s good faith reliance on
receipt that rent was paid); Rudnick v. Union Producing Co., 25 So.2d 906 (La.
1946)(legitimate dispute over additional rent payment claimed). It is also exercised
in cases where the landlord’s acts or omissions have contributed to the delay in
receiving the rent. See, e.g. Bordelon v. Bordelon, 434 So.2d 633 (La. App. 3 Cir.
1983); Silas v. Silas, 399 So.2d 778 (La. App. 3 Cir. 1981).
5.6.3.9 Public housing authority evictions–late payments or one-time
defaults
Unlike private evictions, one-time failures to pay rent or late payments may
not constitute “good cause” for eviction of a public housing tenant. The HUD reg-
ulations for eviction expressly state that the housing authority may only evict for
serious or repeated violations of material terms of the lease such as “failure to
make payments due under the lease.” 24 C.F.R. § 966.4(l)(2)(i)(A). The use of the
plural for payments rather than the singular implies that a one-time default in
payment of rent is insufficient to justify eviction.109
5.6.4 Good Cause Eviction
5.6.4.1 Notice to Vacate
Due process requires that the notice to vacate specify the grounds for evic-
tion.110 In addition, the lease or federal law may govern the contents of a notice
to vacate.111 A notice to vacate which did not contain grounds for eviction would
107
Porter v. Miller, 782 So.2d 1123 (La. App. 3 Cir. 2001); Ergon, Inc. v. Allen, 593 So 2d 438 (La. App. 2 Cir. 1992);
Housing Authority of Lake Charles v. Minor, 355 So.2d 271 (La. App. 3 Cir. 1977), writ denied 355 So.2d 1323 (La.
1978); Metzinger v. Bundrick, 503 So.2d 666 (La. App. 3 Cir. 1987), writ denied 505 So.2d 1142 (La. 1987).
108
Shreveport Neon Signs, Inc. v. Williams, 5 So.3d 977, 981 (La. App. 2 Cir. 2009).
109
See e.g., Maxton Housing Authority v. McLean, 328 S.E.2d 290 (N.C.1985)(PHA can’t evict for nonpayment where default
was not tenant’s fault).
110
Flores v. Gondolier, Ltd. , 375 So.2d 400 (La. App. 3 Cir. 1979); Louisiana State Museum v. Mayberry, 348 So.2d 1274
(La. App. 4 Cir. 1977).
111
See e.g., Apollo Plaza Apts. v. Gosey, 599 So.2d 494 (La. App. 3 Cir. 1992) (notice to vacate did not specify grounds for
termination with enough detail to prepare a defense); see also, Corpus Christi Housing Authority v. Love, 267 S.W.3d
222 (Tex. App. 2008)(housing authority eviction dismissed for failure to advise tenant of judicial eviction procedure to
be used, as required by federal law).

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deny the tenant the opportunity to present a defense. The landlord’s proof of
grounds for eviction should be limited to those stated in the notice to vacate.112
A tenant in foreclosed property can’t be evicted unless at least 90 days notice
is given. 12 U.S.C. § 5220; Bank of New York Mellon v. De Meo, 254 P.3d 1138
(Ariz. App. 2011).113
5.6.4.2 Rule for Possession
If the rule for possession states different grounds for termination, it should
be argued that this defect is fatal to a summary eviction action. Cf., J & R Enter-
prises-Shreveport, LLC v. Sarr, 989 So.2d 235 (La. App. 2 Cir. 2008); Arbo v.
Jankowski, 39 So 2d 458 (Orl. App. 1949). Issue switching between the mandatory
notices and the trial should be viewed as a due process violation.
5.6.4.3 Acceptance of Rent
Acceptance of rent after the notice to vacate in an eviction for a lease viola-
tion cures the default and reinstates the lease. A & J, Inc. v. Ackel Real Estate,
831 So.2d 311 (La. App. 5 Cir. 2002)
5.6.4.4 Lease Violations
Cancellation of leases is not favored in Louisiana.114 A lease will be dissolved
only when it is shown that the landlord is undoubtedly entitled to such cancella-
tion.115 The tenant’s dereliction of duty must be substantial and cause injury to
the landlord.116 You should argue that a lease should not be canceled unless the
violations of the terms of the lease are material and important.117 Civil Code article
2719 expressly authorizes the application of the rules in Civil Code articles 2013-
2024 to terminations based on lease violations.
In public and subsidized housing evictions, certain criminal activities may be
alleged as lease violations. The landlord has the burden or proving actual criminal
misconduct by a preponderance of evidence. Arrest records and police reports are
inadmissible. The fact of arrest alone, without some independent evidence of an
actual crime, is insufficient to prove a crime.118
In Monroe Housing Authority v. Coleman, 70 So.3d 871 (La. App. 2 Cir. 2011),
an eviction for an alleged lease violation or expiration was properly denied when
the landlord failed to introduce the lease into evidence.
5.6.4.5 Good Cause
Some federally subsidized tenants can only be evicted for “good cause.” See
for example:
Public housing. 42 U.S.C. § 1437d(l)(5); 24 C.F.R. § 966.4
112
Cf. J & R Enterprises-Shreveport, LLC v. Sarr, 989 So.2d 235 (La. App. 2 Cir. 2008); Arbo v. Jankowski, 39 So.2d 458
(Orl. App. 1949).
113
12 U.S.C. § 5220, The Protecting Tenants at Foreclosure Act, expires on December 31, 2014 unless extended.
114
Tolar v. Spillers, 2 So.3d 560, 563-64 (La. App. 2 Cir. 2009); Ergon, Inc. v. Allen, 593 So.2d 438 (La. App. 2 Cir. 1992).
115
Good v. Saia, 967 So.2d 1161, 1172 (La. App. 4 Cir. 2007); Housing Authority of Town of Lake Providence v. Burks, 486
So.2d 1068 (La. App. 2 Cir. 1986); Wahlder v. Osborne, 417 So.2d 71, 73 (La. App. 3 Cir. 1982); Atkinson v. Richeson,
393 So.2d 654 (La. App. 1 Cir. 1978), rev’d on other grounds, 367 So.2d 773 (La. 1979).
116
Simmons v. Pure Oil Co., 124 So.2d 161, 166 (La. App. 2 Cir. 1960) aff’d 129 So.2d 786 (La. 1961).
117
See, e.g., Carriere v Bank of Louisiana, 702 So.2d 648 (La. 1996); Karno v. Fein Caterer, Inc., 846 So.2d 105 (La. App. 4
Cir. 2003); Lillard v. Hulbert, 9 So.2d 852 (La. App. 1 Cir. 1942), (overruled on other grounds); Bodman, Murrell & Webb
v. Acacia Found. of LSU, 246 So.2d 323 (La. App. 1 Cir. 1971).
118
See e.g., Housing Authority of New Orleans v. Sylvester, 2012-CA-1102 (La. App. 4 Cir. 2/27/13); Nashua housing Authority
v. Wilson, 162 N.H. 358 (N.H. 2011); Miles v. Fleming, 214 P.3d 1054 (Colo. 2009); cf. State v. Cockerham, 522 So.2d
1245 (La. App. 4 Cir. 1988).

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Section 8 voucher housing. 42 U.S.C.§ 1437f(o)(7)(C); 24 C.F.R. §

982.310
Low income tax credit housing. Rev. Rul. 2004-82
§§ 202, 221, 236 multifamily projects. 24 C.F.R. § 247.3
Rural housing. 7 C.F.R. §3560.159. 119
The Louisiana appellate courts have not defined what constitutes “good
cause” for the eviction of a federally subsidized tenant.120 You should argue that
an isolated act of minor misconduct will not forfeit a lease. See 24 C.F.R. § 966.4
(public housing); 24 C.F.R. § 247.3(c) (§§ 202, 221, 236 multifamily projects); 24
C.F.R. §982.310 (d)(Section 8 voucher housing).
Other courts or HUD have held that the following do not constitute “good
cause” for eviction of a federally subsidized tenant:
Minor housekeeping problems
Unauthorized pets
Unauthorized guests
Noise from apartment
Profane language
Disrespect for management (assuming no threats of bodily harm)
Minor lease violations
Violations of unreasonable rules or policies
Late rent
Minor damages to property
Damages or misbehavior by children
Tenant negligence that results in damage to property (but gross
negligence could be problem)
Actions protected by law (free speech, reports to government
authorities)
Immoral behavior (adultery, unwed children)
Some reporting problems in lease application or recertification
(that don’t rise to level of fraud)
Minor crimes
Good faith mistakes by tenant
Behavior related to tenant’s mental or physical disabilities
Pest or bed bug infestation (HUD memo)
5.6.4.6 Equitable Discretion or “Judicial Control”
Evictions are subject to judicial control and may be denied even if a lease
violation exists. Carriere v Bank of Louisiana, 702 So.2d 648 (La. 1996); Newport-
Nichols Enterprises v. Grimes, Austin & Stark, Inc., 463 So.2d 111 (La. App. 3 Cir.
1985) (failure to obtain insurance). See also, La. Civ. Code art. 2013-24.
5.6.4.7 Rectification Clause
A lease may allow a tenant to cure a default or lease violation after notice by
the landlord. In such cases, failure to allow rectification would defeat the
119
See also, Caulder v. Durham Housing Authority, 433 F. 2d 998 (4th Cir. 1970), cert. denied 401 U.S. 1003 (1971).
120
Unpublished Louisiana appellate opinions have held that brief violations of no-pet rules do not constitute good cause
for eviction.

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eviction.121 The landlord must show a “notice to cure” before he has a right to
evict. This defense can be raised as an exception of prematurity or no cause of
action. In either case, the eviction should be dismissed since it can’t be cured by
amended pleadings.122
Without proof of a “notice to cure”, alleged lease violations are irrelevant.
Therefore, you should object to evidence on alleged violations unless the landlord
has first proved that a “notice to cure” was given and that violations occurred
thereafter.
5.6.4.8 Res Judicata and Issue Preclusion
Res judicata and issue preclusion apply to eviction lawsuits.123 If a tenant
wins on the merits of an eviction for a lease violation, all causes of action existing
at the time of the final judgment arising out of the transaction or occurrence that
is the subject matter of the litigation are extinguished and the judgment bars a
subsequent action on those causes of action. La. R. S. 13:4231 (2). Be sure to
insist on a signed written judgment if the judge dismisses an eviction lawsuit. A
notation of dismissal is insufficient to support a res judicata plea. 124 A second
suit barred by res judicata may give rise to a Fair Debt Collection Practice claim
if the landlord or its attorney acts as a “debt collector.”125

5.7 OTHER EVICTION RELATED ISSUES

5.7.1 Disaster Executive Orders
A Governor’s Executive Order may suspend all deadlines in the Civil Code
and Code of Civil Procedure. Thus, an Executive Order applies to the deadlines in
eviction suits and briefly delays the running of the time periods for notices to
vacate and rules for possession.
The delays required by an Executive Order, which orders a 15 day suspension
ending on Friday, September 12, are illustrated by the following examples:
Example 1–Notice to vacate issued
Rent due on September 1. Landlord files 5 day notice to vacate on September
2. The Executive Order suspends the running of the notice to vacate through Sun-
day, September 14. The 5 days would run from Monday, September 15 to Friday,
September 19. The first day that a landlord could file the rule for possession would
be Monday, September 22.
Example 2–Notice to Vacate waived
Rent due on September 1. Tenant waived notice to vacate in writing. Landlord
files and serves rule for possession on September 2. A rule can’t be heard until
the third day after service. This 3 day period can’t begin running until Monday,
September 15. Thus, Wednesday, September 17 would be the first day the rule
for possession could be heard.
121
See, D & D Investment v. First Bank, 831 So.2d 488 (La. App. 5 Cir. 2002); Shell Oil v. Siddiqui, 722 So.2d 1197 (5 Cir.
1998); Meraux & Nunez v. Houck, 13 So.2d 233 (La. 1943); Raintree Court Apts. v. Bailey, No. 98-C-1138 (La. App. 5
Cir. 1998).
122
La. Code Civ. Proc. art. 933 (A); Lichtentag v. Burns, 258 So.2d 21 (La. App. 4 Cir. 1972), writ denied 259 So.2d 916
(La. 1972).
123
Avenue Plaza LLC v. Falgoust, 676 So.2d 1077 (La. 1996); Housing Authority of New Orleans v. Riley, 691 So.2d 256 (La.
App. 4 Cir. 1997).
124
Brown v. Boudreaux, 21 So.2d 44 (La. 1945).
125
Montgomery v. Donnett, 2006 WL 293727 (S.D. Oh. 2006).

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5.7.2 Lease-Purchase Agreements and Bonds for Deed

5.7.2.1 Rights of bond for deed buyers
A bond for deed must be by authentic act or by act under private signature.126
But occupancy plus sworn admission by the seller can substitute for the lack of a
written agreement.127
A rule to evict may be used to evict the buyer in a bond for deed or lease-pur-
chase agreement. Bennett v. Hughes, 876 So.2d 862 (La. App. 4 Cir. 2004). A con-
tract may be a “bond for deed” even if it is styled as something else.128 The proper
interpretation of a contract is a legal issue subject to de novo review. Montz v.
Theard, 818 So.2d 181 (La. App. 1 Cir. 2002).
If an agreement is actually a “bond for deed”, the eviction can be defeated if
the seller did not comply with the statutory requirements for cancelling a bond
for deed. See La. R.S. 9: 2945; Thomas v. King, 813 So.2d 1127 (La. App. 2 Cir.
2002); Tabor v. Wolinski, 767 So.2d 972 (La. App.1 Cir. 2000).
R.S. 9: 2945 provides that a buyer has the right to cure a default within 45
days from the “mailing of the notice.” The notice must be by certified mail. Despite
the literal language of R.S. 9: 2945, it may be argued that the 45 days do not run
when the buyer never receives the certified mail notice. Courts have held that sim-
ilar language in other statutes means completion of service and that the right to
cancel is defeated if the non-receipt of the notice is shown.129
A Chapter 13 bankruptcy may be used to cure a default in a bond for deed and
pay arrearages.130 If a bankruptcy reorganization is the best remedy for the buyer,
it is important that the bankruptcy be filed before a judgment of possession or any
cancellation of the buyer’s interests. A final eviction judgment may result in the
loss of the § 362 bankruptcy automatic stay. Generally, a bankruptcy court can’t
revive rights that have been finally terminated under state law.131 Also, the vendor
may argue that the bond for deed is an executory contract or lease and that the
remedies are limited to assuming or rejecting the contract pursuant to 11 U.S.C. §
365. However, the bankruptcy court should allow the buyer to treat the bond for
deed as a secured debt that can be cured in a Chapter 13 bankruptcy.132
A failed bond for deed is subject to certain adjustments:
1. The purchaser is entitled to return of all monies paid on the purchase price;
and
2. The seller is entitled to the fair rental value for the buyer’s occupancy. Berth-
elot v. Le Investment, 866 So.2d 877 (La. App. 4 Cir. 2004).
A waiver of the purchaser’s right to return the monies paid violates public
policy and is unenforceable.133 Inclusion of such a waiver in a bond for deed con-
tract may constitute an unfair trade practice.134
126
Solet v. Brooks, 30 So.3d 96,100 (La. App. 1 Cir. 2009)
127
Upton v. Whitehead, 935 So.2d 746, 749 (La. App. 2 Cir. 2006).
128
See e.g., Bayou Fleet Partnership v. Phillip Family LLC, 976 So.2d 794 (La. App. 5 Cir. 2008); Tabor v. Wolinski, 767
So.2d 972 (La. App.1 Cir. 2000)(“lease-purchase agreement” was a bond for deed); Mooers v. Sosa, 798 So.2d 200 (La.
App. 5 Cir. 2001)(“affidavit” was a bond for deed).
129
Broadway v. All-Star Ins. Corp., 285 So.2d 536 (La. 1973); Manh An Bui v. Farmer’s Ins. Exchange , 68 So.3d 656 (La.
App. 1 Cir. 2011), writ denied 74 So.3d 212 (La. 2011).
130
In re Johnson, 75 B.R. 927 (Bankr. N.D. Ohio 1987); cf. In re Brown, 325 B.R. 169, 174 (Bankr. E.D. La. 2005); Auto
Leasing, L.L.C. v. Little, 392 B.R. 222 (W.D. La. 2008).
131
In re Valentin, 309 B.R. 715, 718, n. 3 (Bankr. E.D. Pa. 2004).
132
See footnote 128, supra.
133
Seals v. Sumrall, 887 So.2d 91, 96 (La. App. 1 Cir. 2004); Montz v. Theard, 818 So.2d 181, 187 (La. App. 1 Cir. 2002).
134
La. R.S. 51: 1403.

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A buyer may sue for specific performance of the bond for deed and con-
veyance of title upon prepayment or payment of the price in full. Lyons v. Pitts,
923 So.2d 962 (La. App. 2 Cir. 2006)(buyer had right to prepay bond for deed
where contract silent as to this issue).

5.7.2.2 How to determine if an agreement is a bond for deed

In a bond for deed, as defined by La. R.S. 9: 2941, the purchase price is paid
in installments and the seller agrees to transfer title on completion of the pay-
ments.135 Without a promise to transfer title, an agreement is not a “bond for
deed.”136 A contract requiring the buyer to obtain financing to pay off a mortgage
can be a bond for deed.137 An agreement can be a bond for deed even if it does not
comply with statutory protections for the bond for deed buyer.138 A document’s
title is not determinative of whether it is a bond for deed or another type of con-
tract.139 The presence of a final nominal payment or a balloon payment does not
prevent an agreement from being a bond for deed.140
By comparison, Civil Code art. 2620 defines an option to buy as a contract
whereby a party gives another the right to accept an offer to buy within a stipu-
lated time. Thus, a document giving a term and varying purchase prices for an
option to buy is not a bond for deed, but rather a lease with an option to buy.141
There is a 10 year limit on options to buy.142
5.7.3 Eviction of “posssessors” or usufructuaries
A possessor, whether in good faith or bad faith, may retain possession until
he is reimbursed for expenses and improvements which he is entitled to claim.
La. Civ. Code art. 592; Broussard v. Compton, 36 So.3d 376 (La. App. 3 Cir. 2010).
A usufructuary may retain possession until he is reimbursed for expenses
and advances he is entitled to claim from naked owner. La. Civ. Code art. 627;
Barnes v. Cloud, 82 So.3d 463 (La. App. 2 Cir. 2011). An exception of unauthorized
use of summary proceeding should be filed against a rule to evict a usufructuary.
Generally, a usufructuary does not occupy the property by permission or accom-
modation of the owner and would not be an “occupant” within the meaning of La.
Code Civ. Proc. art. 4704. Therefore, La. Code Civ. Proc. art. 4702 and 4735 would
not authorize the use of a rule for possession to summarily evict a usufructuary.143
5.7.4 Eviction and rent claims by co-owners
A co-owner has the right to use co-owned property without payment of rent
to other co- owners.144 An co-owner in exclusive possession may only be liable for
135
La. R.S. 9: 2941; H.J. Bergeron, Inc. v. Parker, 964 So.2d 1075, 1076 (La. App. 1 Cir. 2007); Lyons v. Pitts, 923 So.2d
962, 963 (La. App. 2 Cir. 2006)(agreement to give warranty deed sufficient for bond for deed to exist).
136
James v. Denham Springs Rent All, Inc., 2007 WL 4465620 (La. App. 1 Cir. 2007); Solet v. Brooks, 30 So.3d 96, 99-100
(La. App. 1 Cir. 2009); Bradstreet v. Kinchen, 10 So.3d 331, 336-37 (La. App. 4 Cir. 2009); Williams v. Adams, 2010 WL
4278275 (La. App. 1 Cir. 2010).
137
Cottingim v. Vliet, 19 So.3d 26, 31 (La. App. 4 Cir. 2009).
138
Montz v. Theard, 818 So.2d 181, 187 (La. App. 1 Cir. 2002).
139
Montz v. Theard, 818 So.2d 181, 187 (La. App. 1 Cir. 2002); Bayou Fleet Partnership v. Phillip Family, LLC, 976 So.2d
794, 796 (La. App. 5 Cir. 2008).
140
Cottingim v. Vliet, 19 So.3d 26, 31 (La. App. 4 Cir. 2009); Tabor v Wolinski, 767 So.2d 972, 974 (La. App. 1 Cir. 2000);
Bennett v. Hughes, 876 So.2d 862, 863-64 (La. App. 4 Cir. 2004).
141
Bayou Fleet Partnership v. Phillip Family, LLC, 93 So.3d 1112 (La. App. 5 Cir. 2012).
142
La. Civ. Code. art. 2628; Bubola v. Stutts, 2008 WL 4191020 (La. App. 1 Cir. 2008).
143
Cf. Millaud v. Millaud, 761 So.2d 44 (La. App. 4 Cir. 2000); Bond v. Green, 401 So.2d 639, n. 1 (La. App. 3 Cir 1981)(rule
to evict usufructuary had aspect of summary proceeding, but objection to use of summary proceeding was waived).
144
La. Civ. Code art. 802; McCarroll v. McCarroll, 701 So.2d 1280, 1289 (La. 1997).

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rent beginning on the date than another co-owner requests occupancy and has
been refused.145 A co-owner may not evict another co-owner who is authorized to
occupy the property as a co-owner.146

5.7.5 Suit for money and eviction

Money for damages or rent are not recoverable in a summary proceeding insti-
tuted by a rule for possession.147 In addition, service of process by tacking does
not subject a tenant to the requisite personal jurisdiction for entry of a money
judgment.148 However, a tenant should file an exception of unauthorized use of
summary proceedings to the rent claims. Garrett v. Cross, 935 So.2d 845 (La. App.
2 Cir. 2006)(judgment for rent upheld where tenant failed to file exception).

5.7.6 Sale or foreclosure of property

A lease does not bind or affect third parties unless (1) it is filed for registry
in the office of the parish recorder for the parish where the immovable is located,149
or (2) assumed in the act of sale or purchase agreement,150 or (3) the third party
is a creditor who foreclosed on the landlord. Also, an unrecorded lease may be
ratified when the new owner allows the tenant to remain and accepts rent for a
time. La. Civ. Code art. 1843.151 However, the tenant may have a damages action
against the original landlord if he sells the property to a third party who then
evicts prior to lease expiration. La. Civ. Code art. 2712.152
The Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220 note, requires
that at least 90 days written notice to vacate be given to tenant in foreclosed prop-
erty.153 This federal law requires the foreclosing party or successor in interest to
assume the leases of bona fide tenants, subject to a notice to vacate of at least 90
days or the duration of the lease, whichever is longer. This requirement even
applies to oral leases, month-to-month leases and unrecorded leases.154 A mis-
leading notice to vacate, e.g., a 5 day notice to vacate, may not be cured by the
mere passage of time.155 Most courts have held that the landlord’s successor in
interest (usually the foreclosing bank) bears the burden of proving that the tenant
is not a protected “bona fide tenant” as defined by the PTFA. Also, the PTFA
expressly states that tenants whose rents are reduced by a subsidy are protected
145
McCarroll v. McCarroll, supra at 1290.
146
Millaud v. Millaud, 761 So.2d 44 (La. App. 4 Cir. 2000) (jurisdiction lies with district court).
147
Friedman v. Hofchar, Inc., 424 So.2d 496, 499 (La. App. 5 Cir. 1982), writ denied 430 So.2d 74 (La. 1983); Himbola
Manor Apartments v. Allen , 315 So.2d 790 (La. App. 3 Cir. 1975); Manor v. Hall, 263 So.2d 22 (La. 1972).
148
Friedman v. Hofchar, Inc., 424 So.2d at 499-500
149
La. Civ. Code art. 2681, 2712, 1839. Prior rule codified at La. R.S. 9: 2721.
150
Means v. Comcast, Inc., 17 So.3d 1012, 1014 (La. App. 2 Cir. 2009); Restaurant Indigo v. Thompson, 733 So.2d 1271
(La. App. 4 Cir. 1999).
151
Means v. Comcast, Inc., 17 So.3d 1012, 1014-15 (La. App. 2 Cir. 2009).
152
The 2005 adoption of Civil Code art. 2712 makes it clear that the lessee has a damages action against the landlord
unless there was an agreement defeating the tenant’s rights. See also, Caballero Planting Co., Inc. v. Hymel, 713 So.2d
1277 (La. App. 1 Cir. 1998); High Plains Fuel Corp. v. Carto International Trading, Inc., 640 So.2d 609 (La. App. 1 Cir.
1994) writ denied 646 So.2d 402.
153
Bank of New York Mellon v. De Meo, 254 P.3d 1138 (Ariz. App. 2011); Curtis v. U.S. Bank National Ass’n, 50 A.3d 558
(Md. 2012); 12 U.S.C. § 5220 expires on December 31, 2014 unless extended. See Pub. L. No. 111-22, Div. A, tit. VII,
§§ 701-704, Stat. 1632, 1660-62 as amended by the Protecting Tenants at Foreclosure Extension and Clarification
Act, Pub. L. No. 111-203, tit. XIV, § 1484, 124 Stat. 1376, 2204.
154
Joel v. HSBC Bank N.A., 420 Fed. Appx. 928, 931 (11th Cir. 2011)(month-to-month tenant entitled to 90 days notice
under Protecting Tenants at Foreclosure Act).
155
Bank of New York Mellon v. De Meo, 254 P.3d 1138 (Ariz. App. 2011); Curtis v. U.S. Bank National Ass’n, 50 A.3d 558
(Md. 2012).

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“bona fide tenants” even though they don’t pay fair market rent. A federal PTFA
defense is not a basis for removal of the eviction to federal court, rather it is a
state court eviction defense.156
Act 877 of 2004 enacts La. Code Civ. Proc. art. 2293 (B)(2)-(3) to require
the sheriff to serve a written notice of seizure on tenants and occupants when the
landlord’s property has been seized by a creditor. Act 127 of 2012 further extended
the notice requirement to property sold in executory process. The sheriff’s failure
to serve this notice shall prevent the purchaser of the property from using a La.
R.S. 13: 4346 ex parte writ of possession to evict or eject occupants or tenants.
However, the sheriff’s failure does not affect the rights of the purchaser or fore-
closing creditor to use the eviction procedures in La. Code Civ. Proc. art. 4701 et
seq., which require a 5 day notice to vacate and a rule of possession to evict an
art. 4704 “occupant,” (or the 90 day notice required by federal law).
5.7.7 Reconduction of Lease
A “reconducted lease” is a continuation of the lease under the same terms,
except that the fixed term in the old lease is voided and the reconducted lease is
considered to be month-to-month. La Civ. Code arts. 2721-24.157 In 2005, Civil
Code art. 2724 was amended to make it explicit in the Civil Code that all provisions
of the lease provisions, other than the term, continue in effect.158 Legal reconduc-
tion takes place when a fixed term lease expires, without opposition.159
The presumption of reconduction (when the lessee remains in possession of
the premises beyond the terms of the lease) is not to be used to force a contract
on parties who are unwilling to contract. Its purpose is merely to establish a rule
of evidence, or presumption, as to intent when contrary intent has not been
expressed. Therefore, any intent not to renew the lease on the same terms defeats
reconduction.160 For example, no reconduction takes place where the tenant and
landlord negotiate for a new lease prior to the expiration of the old lease, and
such negotiations involve terms which differ substantially from the old lease.161
5.7.8 Landlord’s seizure of tenant’s property for unpaid rent
La. Civil Code art. 2707-10 grant the landlord a privilege on the tenant’s prop-
erty located on the leased real estate to secure payment of rent and other lease
obligations. Occasionally, a landlord will seize a tenant’s property for unpaid rent.
However, a landlord may not use self-help to obtain possession of a tenant’s prop-
erty on the leased premises except where the tenant clearly abandoned the prem-
ises.162 Enforcement of a lessor’s privilege requires judicial process, e.g., a writ
of sequestration.163 Wrongful seizure will subject the landlord to damages and
156
Wells Fargo Bank v. Hines, 2012 WL 2467024 (E.D. Cal. 2012). However, a PFTA defense may arise as an issue in
bankruptcy if the landlord’s forecloser seeks to lift the stay in order to evict.
157
Mays v. Alley, 599 So.2d 459 (La. App. 2 Cir. 1992); Baronne Street, Ltd. v. Pisano, 526 So.2d 345 (La. App 4 Cir.
1988); Misse v. Dronet, 493 So.2d 271 (La. App. 3 Cir. 1986); King Plaza Inc. v. Richter, 303 So. 2d 504 (La. App. 2 Cir.
1974), writ denied 307 So.2d 370 (La. 1975). Prior rules codified at La. Civ. Code art. 2685, 2689.
158
Marie Moore, New Civil Code Lease Articles: New Words; New Rules; New Issues (2004).
159
See, Governor Claiborne Apartments, Inc. v. Attaldo, 235 So.2d 574 (La. 1970); Torco Oil Co. v. Grif-Dun Group, Inc., 617
So.2d 102 (La. App. 4 Cir. 1993).
160
Misse v. Dronet, 493 So.2d 271 (La. App. 3 Cir. 1986).
161
Divincenti v. Redondo, 486 So.2d 959 (La. App. 1 Cir. 1986).
162
Bunuel of New Orleans, Inc. v. Cigali, 348 So.2d 993 (La. App. 4 Cir. 1977).
163
La. Civil Code art. 2707, Official Revision Comment (d). The landlord does not have to post security for a writ of seques-
tration. La. Code Civ. Proc. art. 3575.

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attorney fees.164 Seizure of property exempt under La. R.S. 13: 3881 is a wrongful
seizure.165 Most of a tenant’s property will be exempt from seizure under La. R.
S. 13: 3881. Thus, a landlord who seizes property will often be liable for wrongful
seizure.166
5.7.9 Unpaid Rent and Attorney Fees
Generally, an obligation to pay rent is barred by a 3 year prescription, not a
10 year prescription for breach of contract. Starns v. Emmons, 538 So.2d 275 (La.
1989).
A landlord has a duty to mitigate damages when a tenant prematurely ter-
minates a lease. La. Civ. Code art. 2002; La. R.S. 9:3260; Easterling v. Halter
Marine, Inc., 470 So.2d 221 (La. App. 4 Cir. 1985).
If the landlord terminates the lease, it forfeits the right to future rent under
the lease. 1001 Harimaw Court East, LLC v. Blo, Inc., 66 So3d 1131, 1133 (La.
App. 5 Cir. 2011). Lease provisions purporting to grant the landlord a right to
future rentals after eviction or termination of the lease are unenforceable. Id.
La. R. S. 9:3534 (A) authorizes the award of attorney fees against a tenant
in a suit for rent due under an oral lease. An incorrect statement of the amount
due may be a defense to the attorney fee claim. Cf. Dutel v. Succession of Touzet,
649 So.2d 1084 (La. App. 4 Cir. 1995).
Attorneys or collection agencies who attempt to collect debts for landlords
are subject to the Fair Debt Collection Practices Act. See Romea v. Heiberger Asso-
ciates, 163 F. 3d 111 (2d Cir. 1998).
5.7.10 Unenforceable Lease Provisions
These lease provisions are unenforceable:
1. Waiver of repair of/or liability for serious defects in residential lease. La. Civ.
Code art. 2699 (3); Shubert v. Tonti Development Corp., 30 So.3d 977, 985-86
(La. App. 5 Cir. 2009), writ denied 31 So.3d 393 (La. 2010).167
2. Waiver of warranty of peaceable possession. Entergy Louisiana, Inc. v.
Kennedy, 859 So.2d 74 (La. App. 1 Cir. 2003), writ denied 858 So.2d 430 (La.
2003).
3. Waiver of minimum notice to terminate lease. La. Civ. Code art. 2718, 2728-
29.168
4. Waiver of rights under rent deposit statute. La. R.S. 9: 3254.
5. Right to rent if eviction remedy elected. United States Leasing Corp. v. Keiler,
290 So.2d 427 (La. App. 4 Cir. 1974).
6. Waivers of liability for intentional or gross fault. La. Civ. Code art. 2004.
7. Certain prohibited lease provisions in public and subsidized housing. See e.g.,
24 C.F.R. § 966.6 (public housing); 7 C.F.R. § 3560.156(d)(rural housing).
164
La. Code Civ. Proc. art. 3506; Horacek v. Watson, 86 So.3d 766 (La. App. 3 Cir. 2012).
165
Girgis v. Macaluso Realty Co., Inc., 778 So.2d 1210 (La. App. 4 Cir. 2001); Belle v. Chase, 468 So.2d 744 (La. App. 5 Cir.
1985); Oubre v. Hinchman, 365 So.2d 17 (La. App. 4 Cir. 1978).
166
Oubre v. Hinchman, 365 So.2d 17 (La. App. 4 Cir. 1978).
167
There is a distinction between liability for defects and who has the obligation to make repairs. Compare, Stuckey v.
Riverstone Residential SC, LP, 21 So.3d 970 (La. App. 1 Cir. 2009), writ denied 24 So.3d 873 (La. 2010).
168
However, the 5 day notice to vacate required by La. Code Civ. Proc. art. 4701 may be waived for private tenants.

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8. Any contract made in violation of the Louisiana Unfair Trade Practices Law.
See La. R.S. 51: 1403.169
9. Forfeiture or penalty clauses in bonds for deed that purport to forfeit the
funds paid by the purchaser if the bond for deed is cancelled.170
Other provisions may be unenforceable if their object or cause is to circum-
vent the law or public policy. La. Civ. Code art. 1968; Bach Investment Co. v. Phillip,
722 So.2d 122, 1223 (La. App. 5 Cir. 1998).
5.7.11 Tenant’s Lease Cancellation Rights
Generally, absent contrary agreement, a month-to-month tenant may cancel
his lease by giving the landlord written notice 10 days prior to the end of the cur-
rent rental month. La. Code Civ. art. 2728. Tenants with fixed term leases may
only cancel for reasons provided in the lease, Civil Code or other applicable laws.
La. Civ. Code art. 2718.
Lease cancellation is not favored in Louisiana and, prior to 2005, could only
be judicially ordered. This means that a canceling tenant runs the risk that his
lease termination may ultimately be held invalid by a judge and thereby subject him
to liability for rent. Act 821 of 2004 enacted Civil Code article 2719 to provide for
extra-judicial means for canceling a contract, including a lease. A tenant who wants
to extra-judicially cancel a lease should follow the procedures in Civil Code articles
2015 and 1991. However, according to the Revision Comments to article 2719, the
tenant is still at risk that a court could find that the cancellation was improper.
Grounds for a tenant to cancel his lease may include:
• Landlord’s failure to maintain the apartment in a habitable condition. Free-
man v. G.T.S. Corp., 363 So.2d 1247 (La. App. 4 Cir. 1978).
• Landlord’s failure to make necessary repairs, depending on each party’s fault
or responsibility, the length of repair period and the extent of the loss of use.
La. Civ. Code art. 2693, 2719.
• Landlord’s failure to maintain tenant in peaceable possession. Essen Devel-
opment v. Marr, 687 So.2d 98 (La. App. 1 Cir. 1995) (other tenant’s barking
dog rendered premises uninhabitable).
• Landlord’s substantial violation of lease. La. Civ. Code art. 2719.
• Fraudulent misrepresentations about neighborhood safety. Borne v. Edwards,
612 So.2d 219 (La. App. 4 Cir. 1992).
• Destruction of premises by fire or flood. La. Civ. Code art. 2693, 2714-15.
• Verbal agreement (despite written term lease) allowing tenant to cancel at
any time. Harper v. Gorman, 694 So.2d 1094 (La. App. 5 Cir. 1997).
• Certain military orders to relocate. La. R.S. 9:3261; 50 U.S.C. §500.
• Tenant’s disability which requires early termination. Samuelson v. Mid-
Atlantic Realty Co., 947 F. Supp. 756 (D. Del. 1996). Early termination may
be an appropriate remedy for other violations of the Fair Housing Act. If a
disabled tenant can no longer use the apartment because it has become inac-
cessible, the landlord should allow early termination as an accommodation.
• Some federally subsidized housing programs may allow early termination for
various grounds, e.g., loss of job, severe illness, victim of domestic violence.
169
A lease with a clause that is prohibited by La. R.S. 51: 1403 may be unenforceable in its entirety or in part. See e.g.,
Baierd v. McTaggart, 629 N.W.2d 277 (Wis. 2001). An unlawful clause may be a deceptive trade practice. Simpson v.
MSA of Myrtle Beach, Inc., 644 S.E.2d 663, 671 (S.C. 2007), cert. denied 552 U.S. 990 (2007).
170
Seals v. Sumrall, 887 So.2d 91, 96 (La. App. 1 Cir. 2004).

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6. LOCKOUTS AND UTILITY TERMINATIONS

6.1 NONJUDICIAL EVICTIONS UNDER ACT 821 OF 2004?
Civil Code article 2719, enacted by Act 821 of 2004, appears to authorize
nonjudicial eviction of tenants for alleged failure to perform lease or codal obliga-
tions.171 Article 2719 states that a party may obtain dissolution of the lease pur-
suant to Civil Code articles 2013-2024. In particular, articles 2015-17 provide a
mechanism for extra-judicial dissolution of contracts. However, a Louisiana Law
Institute attorney who was on the committee to revise the lease code assured the
author that the revised lease code does not authorize nonjudicial evictions. In
addition, since 2005, courts have continued to hold that judicial process is
required for evictions.172
For extra-judicial dissolution for a party’s failure to perform, article 2015
requires that the other party serve a notice to perform, with a warning that, unless
performance is rendered within that time, the contract shall be deemed dissolved.
The time for performance allowed by the notice must be reasonable. The notice
to perform must comply with Civil Code article 1991.
Any extra-judicial dissolution of a lease would be at the initiating party’s own
risk. Revision Comment b, Civ. Code art. 2719. Revision Comment c notes that under
Civil Code article 2014, a contract may not be dissolved when the obligor has ren-
dered a substantial part of the performance and the part not rendered does not sub-
stantially impair the obligee’s interest. Comment c further states that prior
jurisprudence on judicial dissolution of leases would be relevant for judging the pro-
priety of extra-judicial dissolutions of lease. A landlord is liable for damages for a
judicial dissolution that is reversed on devolutive appeal.173 Presumably, a landlord
would also be liable for damages for an extra-judicial eviction that is later declared
improper. Thus, a landlord would be foolish to evict a tenant by extra-judicial means.
This new law could result in an increase in extra-judicial evictions, which
are already a serious social evil. A tenant who is extra-judicially evicted may have
to resort to injunctions, declaratory judgment and damage actions to regain pos-
session and to recover property that is thrown out.

6.2 LAW PRIOR TO 2005

Prior to 2005, a landlord could only evict a tenant through judicial process.
See, e.g., Richard v. Broussard, 495 So.2d 1291, n.1 at 1293 (La. 1986). Lock-outs,
removal of the tenant’s property, utility terminations or otherwise rendering the
premises uninhabitable or inaccessible, are prohibited. The landlord cannot disturb
the possession of the tenant in any way without first resorting to the judicial process.
Weber v. McMilian, 285 So 2d 349, 351 (La. App. 4 Cir. 1973), writ denied 288 So.2d
357 (La. 1974). An eviction judgment after a self-help eviction does not cure the
wrongful eviction. Pelleteri v. Caspian Group, 851 So.2d 1230 (La. App. 4 Cir. 2003).
Even if the rent is overdue, a landlord cannot exclude the tenant from the apart-
ment or terminate utilities without resort to the judicial process. Holmes v. DiLeo,
184 So. 356 (Orl. App. 1938); Vogt v. Jannarelli, 198 So. 421 (Orl. App. 1940).
171
Note that 24 C.F.R § 966.6 prohibits housing authority lease provisions that waive judicial eviction proceedings.
172
See e.g., Horacek v. Watson, 86 So.2d 766 (La. App. 3 Cir. 2012); Platinum City LLC v. Boudreaux, 81 So.3d 780 (La.
App. 3 Cir. 2011).
173
Mangelle v. Abadie, 19 So. 670 (La. 1896).

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Self-help or nonjudicial eviction is permissible if the landlord can prove that

the tenant abandoned the premises.174 Ringham v. Computerage of New Orleans,
Inc., 539 So.2d 864 (La. App. 4 Cir. 1989) (tenant having loaded the contents of
part of the leased premises onto a moving van, and moving the contents from the
remainder of the premises amounted to abandonment of the premises); Porter v.
Johnson, 369 So.2d 1141, (La. App. 1979) writ denied 371 So.2d 615 (where vari-
ous items of considerable value were left at a leased camp, there was no aban-
donment); Bunel of New Orleans, lnc. v. Cigali, 348 So.2d 993 (La. App. 4 Cir.
1977), cert. den., 350 So.2d 1210 (La. 1977) (where leased premises were empty
and there was no response to the landlord’s notices, the landlord could assume
the premises were abandoned). A landlord may be liable if the wrongful eviction
preceded the completion of the act of abandonment. Mansur v. Cox, 898 So.2d 446
(La. App. 1 Cir. 2004).

6.3 DISASTERS AND WRONGFUL EVICTION

In the post-Katrina context, a court has found that a landlord was not liable
for wrongful eviction where a natural disaster rendered the apartment uninhabit-
able and the landlord disposed of the tenant’s property after good faith efforts to
contact him.175

6.4 REMEDIES FOR WRONGFUL EVICTION

A tenant can enjoin or recover damages for a landlord’s nonjudicial eviction
or termination of utility services prior to a final eviction judgment. 176 Failure to
comply with the statutory procedures for judicial eviction constitutes wrongful
eviction and subjects the landlord to damages.177 Damages for wrongful eviction
may be recoverable even if a landlord executes an eviction judgment that is sub-
sequently reversed on devolutive appeal.178
Damages for wrongful eviction may include mental anguish, humiliation,
embarrassment, inconvenience, loss or detention of personal property, physical
suffering, or loss of use of the apartment.179 A wrongful eviction may sound in
tort and contract. Wrongful eviction has been held to constitute a bad faith viola-
tion of an obligation that subjects a landlord to both foreseeable and unforeseeable
damages.180 A wrongful eviction may constitute an unfair trade practice in viola-
tion of La. R.S. 51: 1401 et seq.181
174
Another exception may be if the lease has expired and the lease expressly waived any notice to vacate. Crawley v.
Coastal Bridge Co., Inc., 871 So.2d 1271 (La. App. 5 Cir. 2004), writ denied 883 So.2d 1036 (La. 2004).
175
Strickland v. Gordon, 33 So.2d 368 (La. App. 4 Cir. 2010).
176
See, Kite v. Gus Kaplan, Inc., 708 So.2d 473 (La. App. 3 Cir. 1998); Gennings v. Newton, 567 So. 2d 637 (La. App. 4 Cir.
1990); Weber v. Bon March Pharmacy, 378 So.2d 520 (La. App. 4 Cir. 1979), writ denied 381 So.2d 1220 (La. 1980);
Vogt v. Jannarelli, 198 So. 421 (Orl. App. 1940).
177
White v. Board of Supervisors of Southern University, 365 So.2d 583 (La. App. 1 Cir. 1978) (lock-out); Buchanan v. Daspit,
245 So. 2d 506 (La. App. 3 Cir. 1971) (illegal entry and removal of property); Robinson v. Bonhaye, 195 So. 365 (Orl.
App. 1940) (removal of windows and doors).
178
See, e.g., Mangelle v. Abadie, 19 So. 670 (La. 1896); New Orleans Hat Attack, Inc. v. N.Y. Life Insurance Co., 665 So.2d
1186 (La. App. 4 Cir. 1995); see also Smith v. Shirley, 815 So.2d 980 (La. App. 3 Cir. 2002) writ denied 816 So.2d 308
(La. 2002).
179
See, e.g., Kite v. Gus Kaplan, Inc., 708 So.2d 473 (La. App. 3 Cir. 1998); Gennings v. Newton, 567 So.2d 637 (La. App. 4
Cir. 1990); Navratil v. Smart, 400 So.2d 268 (La. App. 1 Cir. 1981), writ denied 405 So.2d 320 (La.1981).
180
La. Civ. Code art. 1997; Smith v. Shirley, 815 So.2d 980 (La. App. 3 Cir. 2002) writ denied 816 So.2d 308 (La. 2002).
181
Mosley & Mosley Builders v. Landin, Ltd, 389 S.E.2d 576 (N.C. App. 1990). Louisiana courts have held that self-help
repossessions without judicial process are unfair trade practices. See e.g., Tyler v. Rapid Cash, L.L.C., 930 So.2d 1135
(La. App. 2 Cir. 2006); but see Pelleteri v. Caspian Group, 851 So.2d 1230 (La. App. 4 Cir. 2003)(found without expla-
nation that the wrongful eviction, on the facts of this case, was not an unfair trade practice).

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Tenants with fixed term leases, and federally subsidized tenants could be
entitled to large damage awards for wrongful evictions. For example, a tenant
with a fixed term lease, who has made leasehold improvements may be entitled
to damages in the amount of the value of the improvements, pro rated over the
remainder of the lease term.182 A federally subsidized tenant should be entitled
to damages in the amount of the rental subsidy from the date of the wrongful evic-
tion until he is actually restored to subsidized housing.183 Each person in the
household could have a cause of of action for damages.184 Damages should be
proven with sufficient specificity.185
In New Orleans, tenants may be entitled to notice of a landlord’s termination
of the landlord’s water account under the consent judgment in the class action.
Mathieu v. Brehm, U.S.D.C. No. 74-1521 (E.D. La. 1975). The Sewerage &
Water Board may be liable for damages if it fails to give the required notice.

7. REPAIR AND DEDUCT: CIVIL CODE ARTICLE 2694

7.1 USES
The Louisiana Civil Code provides that if the landlord does not make neces-
sary repairs to the premises after reasonable notice, the tenant can make the
repairs himself and deduct their cost from the rent due. La. Civ. Code art. 2694.
The repair and deduct provision may be used by tenant:
• to effectuate necessary repairs to the leased premises;
• as an affirmative defense to an eviction for non-payment of rent. Lake Forest,
Inc. v. Katz & Besthoff No. 9, Inc. , 391 So.2d 1286 (La. App. 4 Cir.1980);
Cameron v. Krantz, 299 So.2d 919 (La. App. 3 Cir. 1974); Evans v. Does, 283
So.2d 804, 807 (La. App. 2d Cir. 1973); Leggio v. Manion, 172 So.2d 748
(La. App. 4 Cir. 1965);
• as a defense or set-off to an ordinary action for rent. Brignac v. Boisdore, 288
So.2d 31 (La. 1973) aff’g 272 So.2d 463 (La. App. 4 Cir. 1973); Degrey v.
Fox, 205 So.2d 849 (La. App. 4 Cir. 1968)
The tenant must comply with the requirements of article 2694 in order to
use these remedies and defenses.

7.2 CHECKLIST OF ARTICLE 2694 REQUIREMENTS

Prior to 2005, article 2694 of the Louisiana Civil Code stated:
If the lessor does not make the necessary repairs in the man-
ner required in the preceding article, the lessee may call on
him to make them. If he refuses or neglects to make them,
the lessee may himself cause them to be made, and deduct the
price from the rent due, on proving that the repairs were in-
dispensable, and that the price which he has paid was just and
reasonable.
182
See, e.g. Provenzano v. Populis, 428 So.2d 556 (La. App. 4 Cir. 1983); Leake v. Hardie, 245 So.2d 729 (La. App. 4 Cir.
1971); Knapp v. Guerin, 81 So. 302 (La. 1919).
183
See, Goler v. Metropolitan Apartments, Inc., 260 S.E. 2d 146 (N.C. App. 1979), cert. denied 265 So. 2d 395 (N.C. 1980).
184
Cf. Pizanne v. A.V.Dufor, 112 So.2d 733 (Orl. App. 1959).
185
Platinum City LLC v. Boudreaux, 81 So.3d 780 (La. App. 3 Cir. 2011); Gennings v. Newton, 567 So. 2d 637, 642-43 (La.
App. 4 Cir. 1990).

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Act 821 of 2004 amended article 2694 to read as follows:

If the lessor fails to perform his obligation to make necessary
repairs within a reasonable time after demand by the lessee,
the lessee may cause them to be made. The lessee may demand
immediate reimbursement of the amount expended for the repair
or apply that amount to the payment of rent, but only to the
extent that the repair was necessary and the expended amount
was reasonable. (emphasis added).
The 2004 amendment restates article 2694 with the modifications of “rea-
sonable time”, “immediate reimbursement”, deletion of “due” from “rent due” and
the substitution of “necessary” for “indispensable.” The most significant change
appears to be the “immediate reimbursement” clause. This change may allow a
tenant to be paid for repairs that are greater than the rent due and to immediately
demand and sue for reimbursement.186 Also, the 2004 amendments broadened the
landlord’s repair obligations.
In summary, the requirements for the use of the “repair and deduct” remedy
or defense are:
(1) the repairs must be those that the landlord was obligated to make;
(2) the tenant must call on the landlord to make repairs;
(3) the landlord must refuse or fail to make these repairs after reasonable notice
and demand;
(4) the tenant must then make the repairs;
(5) the cost of the repair is applied to the payment of rent;
(6) proof that the repairs were necessary;
(7) proof that the price paid for the repairs was reasonable.
Although the Code specifically permits the tenant to make repairs first and
then deduct the cost, the Louisiana Supreme Court has held that a tenant may
reverse the order of these actions. Rhodes v. Jackson, 109 So. 46 (La. 1926). The
normal repair and deduct remedy would be of limited value to tenants with mini-
mal excess cash if the law required them to perform and pay for the repairs before
subtracting the cost from their rent.
Once the landlord has refused or neglected to correct a defect, the tenant
may begin to withhold rent in anticipation of the expense of repair. Rhodes, supra.
The tenant must intend to devote the sums withheld to the repair of the premises,
and he must begin to remedy the defect within a reasonable time.187

7.3 ANALYSIS OF ARTICLE 2694 REQUIREMENTS

7.3.1 Repair Obligations and Warranties
Act 821 of 2004 changes and simplifies the language of Code articles relative
to repair obligations and waiver. However, the revision comments state that the
new articles have the same philosophy as the prior law.
186
One purpose of this 2005 amendment to Civil Code art. 2694 was to permit tenants with little time left on their leases
to seek immediate reimbursement from their landlords for expensive repairs made at the landlord’s expense. Marie
Moore, New Civil Code Lease Articles: New Words; New Rules; New Issues (2004).
187
Leggio v. Manion, 172 So.2d 748 (La. App. 4 Cir. 1965); New Hope Gardens, Ltd. v. Lattin, 530 So.2d 1207 (La. App. 2
Cir. 1988).

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Civil Code art. 2684 requires the landlord to deliver the leased property in
“good condition suitable for the purpose for which it was leased.” Previously, the
Code had required the property to be delivered in “good condition and free from
any repairs.”
Civil Code articles 2691 and 2692 define the repair obligations for the land-
lord and tenant during the lease. The landlord must make most repairs. The land-
lord must make all repairs that become necessary to maintain the thing in a
condition suitable for the purpose for which it was leased, except those for which
the tenant is responsible.188
Civil Code art. 2687 and 2692 limit the tenant’s repair duties to (1) deterio-
ration from the tenant’s use that exceeds normal wear and tear and (2) damages
caused by anyone who is on the premises with the tenant’s consent. In addition,
Civil Code article 2688 requires a tenant to notify the landlord when the premises
are damaged or require repairs. Failure to notify the landlord makes the tenant
liable for damages sustained as a result.189
Prior to the 2005 amendments, the Civil Code made the tenant responsible
for necessary repairs to windows, shutters, partitions, doors, window glass
(unless caused by hail storm or other inevitable accident), locks and hinges. Under
the current Civil Code, a tenant would not be responsible for these repairs unless
he or someone under his control damaged them or there was an agreement shifting
the repair obligation.
Residential tenants cannot waive a landlord’s warranty as to (1) defects that
affect health and safety and (2) defects of which the tenant did not know, but the
landlord knew or should have known about. La. Civ. Code art. 2699. This statu-
tory prohibition against waiver is new and was not recognized in prior jurispru-
dence. Other waivers are effective only if in clear and unambiguous language that
is brought to the tenant’s attention. La. Civ. Code art. 2699.190
Except as otherwise provided by Civil Code art. 2699, a landlord and tenant
can broaden or restrict their repair obligations by agreement.191 Hence, a landlord
could limit a tenant’s Article 2694 remedy by contractually shifting the obligations
for many repairs to the tenant.
There are some methods for circumventing contracts that purport to relieve
the landlord of his repair obligations under the Civil Code. First, it must be empha-
sized that it is the landlord’s duty to deliver the premises in good condition. La.
Civ. Code art. 2684. If possible, argue that the defect existed at the commence-
ment of the lease, and that the contractual clause concerning repair obligations
is not applicable.192 The tenant is not responsible for repairs that were necessary
prior to the inception of the lease. Wolf v. Walker, 342 So.2d 1122, 1123 (La. App.
4 Cir. 1976). For subsidized tenants, waivers of the landlord’s repair obligations
may be overridden by the HUD tenancy addendum.
188
The tenant’s repairs are exclusive and should be strictly construed. Brunies v. Police Jury of Parish of Jefferson, 110
So.2d 732, 735 (La. 1959).
189
Compare The French Eighth v. Watts, 514 So.2d 553 (La. App. 4 Cir. 1987)(excess water bills from running toilet) with
Hebert v. Neyrey, 432 So.2d 396 (La. App. 1 Cir. 1983) rev’d 445 So.2d 1165 (La. 1984).
190
For a pre-2005 case on the necessity of bringing waiver to tenant’s attention, see Equilease Corporation v. Hill, 290
So.2d 423 (La. App. 4 Cir. 1974).
191
Cf., Brunies v. Police Jury of Parish of Jefferson, 110 So. 2d 732 (La. 1959).
192
See, e.g. Houma Oil Co. Inc. v. McKey , 395 So. 2d 828 (La. App. 1 Cir. 1981), writ denied 401 So. 2d 356 (La. 1981);
Barrow v. Culver Bros. Garage, 78 So.2d 69 (La. App. 2 Cir. 1955); Vignes v. Barbara, 5 So.2d 656 (Orl. App. 1942).

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In addition, a lease provision requiring the tenant to make all necessary

repairs is not a valid disclaimer of the landlord’s statutory warranty obligation to
the tenant against all vices and defects of the leased property which may prevent
its use. Pylate v. Inabet, 458 So.2d 1378 (La. App. 2 Cir. 1984) (defective sewage
system is covered by landlord’s obligation).
The burden of proving such a contract is on the landlord. The courts are
generally willing to strictly construe any contract which modifies codal obligations
and shifts severely onerous repair obligations to the tenant.193 If you can defeat
the contract provision, the Civil Code will govern the repair duties of the landlord
and tenant. Also, note that an alleged waiver of tenant’s rights under Articles
2684, 2691 and 2696-98 must be brought to the tenant’s attention, or explained
to him.194
Where a landlord fails to accomplish repairs specifically set out in the lease,
the tenant is entitled to have the repairs made himself and apply the amount of
the repair to the payment of rent.
7.3.2 Adequate Notice And Demand on Landlord
Proper notice and demand for the necessary repairs is absolutely essential
to the perfection of a remedy or defense under Article 2694. See, Larsen v. Otalvano
, 391 So.2d 1378 (La. App. 4 Cir. 1980). The problem of “adequate notice” should
be handled carefully because the jurisprudence has not been clear.
If there is a written lease provision on the method of notice, that provision
will govern the issue of whether adequate notice was given. See Brignac v. Bois-
dore , 272 So.2d 463, 465 (La. App. 4 Cir. 1973), aff’d 288 So.2d 31 (La. 1974).
For example, in Calderon v. Johnson, 453 So.2d 615 (La. App. 1 Cir. 1984), the
court held that although the landlord failed to receive notice of the repairs made
by the tenant, that the tenant complied with the terms of the lease by mailing the
notice, under a term of the lease stating that “notices shall be served by mailing
of such notice.”
In the absence of a written lease provision or other agreement, one must
decide on (1) the type of notice, (2) whom to notify, and (3) the length of delay
before conducting repairs. Apparently, oral or written notice can be sufficient. 195
However, there can be serious proof problems with oral notice. The tenant has
the burden of proving adequate notice and demand. Contradictory testimony by
the landlord and tenant on the issue of notice, where the credibility of neither is
attacked, may require a decision in favor of the landlord.196
Hence, one should use a method of notice which will insure independent evi-
dence that notice was given. Written notice by the tenant’s attorney is certainly
one method. See Dickert v. Ruiz, 231 So.2d 633 (La. App. 4 Cir. 1970). Competent
evidence of the mailing and receipt of the letter will be required. See, e.g. DiRosa
v. Bosworth, 225 So.2d 42 (La. App. 4 Cir. 1969), writ refused 227 So.2d 591 (La.
1969).
193
See, e.g., Clofort v. Matmoor, Inc., 370 So.2d 1305 (La. App. 4 Cir. 1979); see also Wolf v. Walker, 342 So.2d 1122 (La.
App. 4 Cir. 1976);Brunies v. Police Jury of Parish of Jefferson, 110 So.2d 732 (La. 1959).
194
See Equilease Corporation v. Hill, 290 So.2d 423 (La. App. 4 Cir. 1974).
195
See, Rhodes v. Jackson , 109 So. 46, 48 (La. 1926); Freeman v. G.T.S. Corp., 363 So.2d 1247 (La. App. 4 Cir. 1978);
Dikert v. Ruiz, 231 So.2d 633 (La. App. 4 Cir. 1970).
196
Johnson v. Johnson, 296 So.2d 470, 471-72 ( La. App. 2 Cir. 1974), writ refused 300 So.2d 183 (1974); May v. Schepis,
147 So. 717 (La. App. 2 Cir. 1933).

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Correction orders issued by a city’s division of housing improvements do not

satisfy the tenant’s contractual obligation to give the landlord written notice of
defects in order to recover the cost of repairs. Lee v. Badon, 487 So.2d 118 (La.
App. 4 Cir. 1986).
The tenant should attempt to make a demand for repairs directly on the land-
lord. There are several cases which seem to require direct contact with the land-
lord. Teekell v. Drewett, 103 So.2d 525 (La. App. 2 Cir. 1958); Ellis v. Brenner, 34
So. 2d 633 (La. App. 2 Cir. 1948). To avoid the harsh consequences of Teekell
and Ellis, the tenant should pursue all available methods of directly placing the
landlord in default. There may be some duty to investigate alternative methods
of giving the landlord direct notice of the required repairs. See, e.g. Giraud v. Clark,
354 So.2d 752 (La. App. 4 Cir. 1978).
Teekell and Ellis exacerbate the problem of notifying an absent or inaccessible
landlord. The better rule is that the tenant be required to take reasonable steps
to notify the landlord. See, Barrow v. Culver Bros. Garage, 78 So.2d 69 (La. App.
2 Cir. 1955).
It should be noted that many rent collection agents only have a limited mandate
(or power of attorney) from the landlord. This limited mandate may only authorize
the agent to collect rent, and not to make repairs. The agent may not even forward
a demand for repairs to the landlord. To be on the safe side, one should contact
both the agent and landlord. In a case where only the agent was notified, it can be
argued that notice to the agent constituted notice to the principal.197
Article 2694 does not indicate how long a tenant must wait before commenc-
ing repairs after proper demand on the landlord. However, it is clear that the
landlord must be given a reasonable period in which to make the repairs. 198 The
determination of “reasonable period” is essentially factual and will depend on the
individual circumstances of each case. Presumably, a “reasonable period” would
vary according to the nature of the defect. 199
In Davilla v. Jones, the Louisiana Supreme Court found that a commercial
landlord’s failure to repair substantial water leakage in the roof and walls, within
2 weeks of the tenant’s demand, did not justify the use of the repair and deduct
remedy.200 The court found that the high cost of repairs ($30,000+), and the busi-
ness need to obtain additional bids, justified the landlord’s delay in making the
repairs. As such, there is a danger that courts will interpret Davilla to require a
waiting period of more than 2 weeks before a tenant can make the repairs under
Article 2694.
7.3.3 Application to Rent
The amount of repairs can be applied to the payment of rent. La. Civ. Code
art. 2694. Under the pre-2005 law, deductions were limited to rent due after the
landlord was properly put in default.201 However, the new law deleted the term
“deduct from the rent due” from the language in art. 2694.
197
Office Equipment, Inc. v. Hyde, 145 So.2d 86 (La. App. 4 Cir. 1962); see also Freeman v. G.T.S. Corp., 363 So.2d 1247,
1248-49 (La. App. 4 Cir. 1978).
198
New Hope Gardens, Ltd. v. Lattin, 530 So.2d 1207 (La. App. 2d Cir. 1988); Davilla v. Jones, supra; cf., Leggio v. Manion,
172 So. 2d 748, 750 (La. App. 4 Cir. 1965).
199
See, e.g. Barrow v. Culver Bros. Garage, 78 So 2d 69 (La. App. 2 Cir. 1955).
200
Davilla v. Jones, 436 So.2d 507 (La. 1983).
201
Mullen v. Kerlec, 40 So. 46 (La. 1905). See also, Rhodes v. Jackson, 109 So. 46 (La. 1926).

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If the tenant has a long term lease, he has a right to make deductions for
repairs up to the amount due under the lease.202 Under the new Article 2694, a
tenant may immediately sue for reimbursement of repair costs in excess of the
rent. As a practical matter, a tenant with a month-to- month lease is probably lim-
ited to making repairs which do not exceed the monthly rent. Evan v. Does, 283
So.2d 804, 808 (La. App. 2 Cir. 1973). A landlord may respond to a repair and
deduct remedy by issuing a 10 day notice to terminate a month-to-month lease.
Louisiana does not have a statutory prohibition against retaliatory evictions.
7.3.4 Proof That Repairs Were Necessary And That Price Was
Reasonable
Finally, the tenant must be able to prove (1) that the repairs made were nec-
essary and (2) that the price of the repairs was reasonable. The “necessity of the
repairs” should be established through the testimony of a qualified person. See,
e.g. Scott v. Davis , 56 So.2d 187 (Orl. App. 1952) (production of receipted bill for
automobile repairs, allegedly necessitated as the result of a collision, is not alone
sufficient proof; there must be testimony); Ermis v. Government Employees Insurance
Co, 305 So.2d 620 (La. App. 4 Cir. 1975) (damage claim based on bill for medical
expenses from a clinic was not proven where no doctor from the clinic testified).
How much evidence is required to prove that the price of the repairs was rea-
sonable? The courts are split on this issue. The actual price of the repairs should
be provable by testimony of payment, corroborated by introduction into evidence
of the bills paid, and identification of them as expenses incurred because of the
landlord’s default.203
However, the tenant must also prove that the price paid for repairs was rea-
sonable. The reasonableness of the price should be proved through the testimony
of a person qualified and knowledgeable in the assessment of the values of repairs.204
It may be difficult, if not impossible, to obtain this quality of evidence for an eviction
defense. In that event, the only alternative is to produce the best available evidence
or secure a continuance. See Coleman v. Victor, 326 So.2d 344, 348-49 (La. 1976),
which suggests that the Louisiana Supreme Court may be willing to reject inflexible
evidentiary rules commonly used by some Courts of Appeal.205
If a repairman cannot be obtained for the trial, you should attempt to intro-
duce other competent testimony on the nature of the defects, the amount of time
spent on the repairs, and the costs of the labor and materials. You can attempt to
introduce any estimates on the repair work. However, these estimates are ordi-
narily inadmissible as hearsay.206 Such estimates can probably be admitted with-
out objection in those evictions which are prosecuted by a non-attorney.
202
Heirs of Merilh v. Pan American Films, 200 So.2d 398, 402 (La. App. 4 Cir. 1967); writ refused, 203 So.2d 88 (La. 1967);
Lorenzon v. Woods, 1 McGloin 373 (Orl App. 1881); see also Cameron v. Krantz, 299 So.2d 919, 923 (La. App. 3 Cir.
1974).
203
See, e.g. Dickert v. Ruiz, 231 So.2d 633 (La. App. 4 Cir. 1970); Trinity Universal Insurance Company v. Normand, 220
So.2d 583, 586 (La. App. 3 Cir. 1969). But see Ducote v. Allstate Insurance Company, 242 So.2d 103 , 107 (La. App. 1
Cir. 1970), writ refused 243 So.2d 532 (La. 1971) and Vezinat v. Marix, 217 So.2d 416, 421 (La. App. 1 Cir. 1968) where
it was held that a party’s testimony alone is insufficient to establish a claim for damages. See also Freeman v. G.T.S.
Corp., 363 So.2d 1247, 1251 (La. App. 4 Cir. 1978).
204
See, e.g., Ducote v. Allstate Insurance Co., 242 So.2d 103(La. App. 1 Cir. 1970), writ refused 243 So.2d 532 (La. 1971)
supra; Vezinat v. Marix, 217 So.2d 416 (La. App. 1 Cir. 1968).
205
See, e.g. Dickert v. Ruiz, 231 So.2d 633 (La. App. 4 Cir. 1970); Lambert v. Allstate Insurance Company, 195 So.2d 698,
700-01 (La. App. 1 Cir. 1967).
206
Thompson v. Simmons, 499 So.2d 517 (La. App. 2 Cir. 1986), writ denied 501 So.2d 772; Ordonez v. Maryland Casualty
Company, 312 So.2d 875 (La. App. 4 Cir. 1975); Dikert v. Ruiz, 231 So.2d 633 (La. App. 4 Cir. 1970).

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Finally, note that a tenant should be able to make a rent deduction for the
value of his own labor, if properly proved. See, e.g., Lambert v. Allstate Insurance
Company, 195 So.2d 698 (La. App. 1 Cir. 1967); Kopsco v. Allelo, 32 So.2d 99 (1
Cir. 1947). Again, the value of the tenant’s own repair work must be supported
by competent testimony on the number of hours worked and the monetary value
thereof. Lambert, supra at 700. The tenant should not make a claim greater than
the price that a professional would have charged. See, e.g., Kopsco, supra.

7.4 PLEADING REQUIREMENTS FOR AN ARTICLE 2694 DEFENSE

All of the elements of an article 2694 defense should be pleaded. Several
courts have strictly enforced the pleading requirements for an article 2694
defense. See, e.g. Miami Truck & Motor Leasing Co. v. Dairyman, Inc., 263 So.2d
110, 112 (La. App. 1 Cir. 1972); Duchein v. Ben Roumain, Inc., 176 So. 696 (La.
App. 1 Cir. 1937).

7.5 ALTERNATIVE REMEDIES IN THE EVENT OF FAILURE

UNDER ARTICLE 2694
7.5.1 The Defense of Good Faith
If the tenant fails to prove one or more elements of an article 2694 defense,
he should avoid cancellation of the lease for nonpayment of rent by convincing
the trial court that he acted in good faith. Plunkett v. D & L Family Pharmacy,
562 So.2d 1048, 1052 (La. App. 3 Cir. 1990)(eviction for withholding rent under
art. 2694 reversed when tenant acted in good faith); Brewer v. Forest Gravel Co.,
135 So. 372 (La. 1931). Good faith has been found where the tenant, relying on
counsel’s advice, refused to pay more. Brewer, supra at 373.
7.5.2 The Right to Remove Improvements or to Be Reimbursed
What are the remedies of a tenant who is evicted before recouping the value
of his improvements in rent? The tenant has the right to remove the improvements
provided he restores the thing to its prior condition. La. Civ. Code art. 2695(1).207
Civil Code article 2694 expressly authorizes the tenant to sue for reimbursement.
The tenant’s right to sue for reimbursement is not terminated by his breach or
abandonment of the lease.208
7.5.3 Damages
The landlord may be sued for damages for failure to maintain the apartment
in habitable condition. See next section.

8. TENANT DAMAGE CLAIMS

Tenant damage claims may be ex delictu or ex contractu. Potter v. First Federal
S & L, 615 So.2d 318 (La. 1993). Prescription is 1 year for torts and 10 years for
contracts. Always file within 1 year if you can. The courts may classify what you
think is a contractual claim as a tort claim and apply a 1 year prescription. See
e.g., Saylor v. Villcar Realty, LLC, 999 So.2d 61 (La. App. 4 Cir. 2008).
207
Riggs v. Lawton, 93 So.2d 543 (La. 1957); Leake v. Hardie, 245 So.2d 729 (La. App. 4 Cir. 1971); Pylate v. Inabet, 458
So.2d 1378 (La. App. 2 Cir.1984).
208
Leake v. Hardie, 245 So.2d 729 (La. App. 4 Cir. 1971).

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8.1 WARRANTY OF HABITABILITY

The landlord must deliver the premises to the tenant in good condition, and
free from any repairs. La. Civ. Code art. 2684.209 A tenant may sue and recover
damages from a landlord for violations of the warranty of habitability, i.e., failure
to maintain apartment in good condition. 210 Assumption of risk is not a defense
to a warranty of habitability lawsuit.211 However, under current law, a tenant’s
damage claim may be reduced if the tenant failed to notify the landlord of a defect
that the landlord did not know about. La. Civ. Code art. 2697, 2688. Written notice
of the defects is not required where the landlord had actual notice.212
Unlike tenants in many states, Louisiana tenants may not use the landlord’s
violation of the warranty of habitability as an offset to their rent obligation. Evans
v. Does, 283 So.2d 804 (La. App. 2 Cir. 1973). However, conventional public hous-
ing tenants have the remedy of rent abatement, which is an extinguishment of the
rent obligation. See 24 C.F.R.§ 966.4(h); HANO v. Wilson, 503 So.2d 565 (La. App.
4 Cir. 1987).
Courts are very reluctant to find a waiver of habitability. In the commercial
leasing context, a court has held that the warranty of fitness may be waived only
if clear and unequivocal language is used.213 Another court has held that although
a tenant accepts leased premises “as is”, he is still entitled to the implied warranty
of fitness afforded him by law.214 Residential tenants may not waive defects that
affect health and safety. La. Civ. Code art. 2699 (3).
If you intend to prove a housing code violation as part of a warranty of hab-
itability lawsuit, you should introduce a certified copy of the ordinance into evi-
dence. Cantelupe v. City of Bossier, 322 So.2d 344 (La. App. 2 Cir. 1975).

8.2 PEACEABLE POSSESSION

Failure to maintain a tenant in peaceable possession gives rise to a breach
of contract. It may also give rise to a negligence claim if the landlord should have
known of the disturbance. La. Civ. Code. art. 2682, 2700-01.215 Executory process
and an order of seizure and sale is a disturbance of peaceable possession if there
is an order to vacate or denial of tenant’s access.216 Landlords have an obligation
to prevent their other tenants from disturbing a tenant’s peaceable possession.217
The warranty of peaceable possession may not be waived.218

8.3 UNFAIR TRADE PRACTICES ACT

The Louisiana Unfair Trade Practices and Consumer Protection Law (LUTP),
La. R. S. 51:1401 et. seq. may apply to leasing of residential property. LUTP pro-
209
Prior law codified at Civil Code art. 2693.
210
See Ganheart v. Executive House Apts., 671 So.2d 525 (La. App. 4 Cir. 1996), writ denied 678 So.2d 554; Gennings v.
Newton, 567 So.2d 637 (La. App. 4 Cir. 1990); Smith v. Castro Brothers Corp., 443 So.2d 660 (La. App. 4 Cir. 1983),
writ denied 446 So.2d 1229, 1231 (La. 1984); see also La. Civ. Code art. 2682, 2684, 2691, 2696-99.
211
Smith v. Castro Brothers Corp., 443 So.2d 660 (La. App. 4 Cir. 1983), writ denied 446 So.2d 1229, 1231 (La. 1984)
212
Ganheart v. Executive House Apts., 671 So.2d 525 (La. App. 4 Cir. 1996), writ denied 678 So.2d 554
213
Pylate v. Inabet, 458 So.2d 1378 (La. App. 2 Cir. 1984).
214
Moity v. Guillory, 430 So.2d 1243 (La. App. 1 Cir. 1983), writ denied 437 So. 2d 1148 (La. 1983).
215
Prior law codified at Civil Code art. 2692. Potter v. First Federal S & L, 615 So.2d 318 (La. 1993); Walters v. Greer, 726
So.2d 1094 (La. App. 2 Cir. 1999)(landlord liable for damages).
216
Plater v. Ironwood Land Co., L.L.C., 889 So.2d 475 (La. App. 2 Cir. 2004).
217
See e.g., La. Civ. Code art. 2700-01; Essen Development v. Marr, 687 So.2d 98 (La. App. 1 Cir. 1995).
218
La. Civ. Code art. 2682(3); Entergy Louisiana, Inc. v. Kennedy, 859 So.2d 74 (La. App. 1 Cir. 2003), writ denied 858
So.2d 430 (La. 2003).

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hibits “unfair and deceptive” acts or practices in the conduct of any trade or com-
merce. La. R. S. 51:1405(A). The definition of “trade or commerce” includes the
sale or distribution of any services and any property, corporeal or incorporeal,
immovable or movable, and any other article or thing of value. La. R. S. 51:1402
(9). Suits, with unfair trade practices claims, should be filed within one year of the
unfair practice since these claims are subject to a one year peremption exception.219
At a minimum, the victim of an unfair trade practice may recover actual dam-
ages and attorney’s fees. Knowing use of unfair or deceptive trade practices after
notice by the attorney general subjects the violator to treble damages. McFadden
v. Import One, Inc., 56 So.3d 1212 (La. App. 3 Cir. 2011).
There is a dearth of Louisiana jurisprudence on unfair trade practices in the
landlord-tenant context. A lessee’s failure to remove equipment at the end of the
lease has been held to be an unfair trade practice. Doland v. ACM Gaming Co., 921
So.2d 196, 202 (La. App. 3 Cir. 2005).
Louisiana courts have held that interpretations of the federal courts and the
Federal Trade Commission relative to 15 U.S.C.§ 45 should be considered to
adjudge the scope and application of LUTP.220 15 U.S.C.§ 45 has been interpreted
to apply to various aspects of the leasing transaction.221 In addition, it should
be noted that LUTP is identical or virtually identical to the unfair trade practices
laws of many other states. Court decisions of other states on statutes identical,
or similar to those of Louisiana are persuasive authority.222 Many states with
identical or similar unfair trade practices laws have held them applicable to unfair
or deceptive acts committed in the leasing of residential property.223
A practice is unfair when it offends established public policy, and when the
practice is immoral, unethical, oppressive, unscrupulous or substantially injurious
to customers. F.T.C. v. Sperry Hutchinson Co., 405 U.S. 233 (1972); Risk Man-
agement, LLC v. Moss, 40 So.3d 176, 184- 85 (La. App. 5 Cir. 2010) writ denied 44
So.3d 683 (La. 2010). A practice is deceptive when it involves fraud, deceit or
misrepresentation. Moss, supra at 185. Other state courts have held a variety of
landlord abuses to be unfair or deceptive trade practices:
• lock-out 224
• disconnection of utilities to evict225
• demand for money not owed under threat of eviction 226
• deceptive eviction notice 227
• routine filing of groundless evictions to collect debts 228
219
The courts of appeal have held that unfair trade practice claims are barred by a one year peremption. The Louisiana
Supreme Court has not ruled on this issue.
220
Moore v. Goodyear Tire and Rubber Co., 364 So.2d 630, 633 (La. App. 2 Cir. 1978); Guste v. Demars, 330 So. 2d 123 (La.
App. 1 Cir. 1976).
221
See, e.g. , In the Matter of Hallmark Group Companies, Inc., 84 F.T.C. 1 (1974); LaPeyre v. F.T.C., 366 F. 2d 117 (5th Cir.
1966), aff’d. in part 65 F.T.C. 799.
222
Fontenot v. New York Life Insurance Co., 357 So.2d 1185 (La. App. 3 Cir. 1978), writ denied 359 So.2d 622 (La. 1978).
223
See, e.g., Commonwealth v. Monumental Properties. 329 A.2d 812 (Pa. 1974). Commonwealth v. DeCotis, 316 N. E. 2d
48 (Mass. 1994); Commonwealth v. Isaacs, 577 S.W. 2d 617 (Ky. 1979).
224
Mosley & Mosley Builders v. Landin, Ltd, 389 S.E.2d 576 (N.C. App. 1990); Dadonna v. Liberty Mobile Home Sales, Inc.,
550 A.2d 1061, 1068 (Conn. 1988).
225
Shepard v. Bonita Vista Props. LP, 664 S.E.2d 388 (N.C. App. 2008) aff’d 675 S.E.2d 332 (N.C. 2009).
226
Stringer v. Perales, 2003 WL 1848594 (Tex. App. 1 Dist. 2003).
227
Atkinson v. Rosenthal, 598 N.E.2d 666 (Mass. App. 1992).
228
Travieso v. Gutman, Mintz, Baker & Sonnenfeldt, 1995 U.S. Dist. Lexis 17804 (E.D. N.Y. 1995).

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• retaliatory eviction229
• violation of warranty of habitability230
• failure to repair
For more examples of the application of unfair trade practice laws to land-
lord-tenant practices, see National Consumer Law Center, Unfair and Deceptive Acts
and Practices § 8.2 (8th ed. 2012). Note that some unfair trade practices may also
violate the Federal Fair Debt Collection Practices Act if conducted by the land-
lord’s attorney or a third party collector.

8.4 FEDERAL FAIR DEBT COLLECTION PRACTICES ACT

The federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., does
not apply to landlords who are attempting to collect from their own tenants. How-
ever, it does apply to attorneys and collection agencies who attempt to collect
debts for landlords.231 Some unfair debt collection practices are:
• Demand for payment of amounts not due232
• Suit for eviction and rent barred by res judicata233
• Utility shutoffs and lockouts seeking to force a tenant to pay rent234
• Seizure of tenant’s property without valid lien235
• Telephone or phone harassment, entry of premises to collect rent236
• Assertion of false claims as reason for withholding security deposit237

8.5 FEDERAL FAIR CREDIT REPORTING ACT

Denial of a lease because of a credit report or a tenant screening report is
adverse action under the Fair Credit Reporting Act. See Cotto v. Jenney, 721 F.
Supp. 5 (D. Mass. 1989). The tenant must be given notice of the adverse action
and an opportunity to dispute inaccurate or incomplete information.

8.6 INVASION OF PRIVACY AND TRESPASS

A landlord can be liable for unlawful entering of the tenant’s apartment. See,
Pizanie v. A. V. Dufour, 112 So.2d 733 (Orl. App. 1959); Lindsey v. Zibilich , 153
So. 341 (Orl. App. 1934).

8.7 PROPERTY DAMAGE

A tenant may recover damage to personal property which is caused by the
landlord’s negligence, lease violation, or vices and defects in the premises. Green
v. Hodges Stockyard, Inc., 522 So.2d 435 (La. App. 4 Cir. 1989) (corrosive damage
to vending machines caused by a hole on the premises); Wilson v. Pou, 436 So.
2d 599 (La. App. 4 Cir. 1983) (mildew damage due to air conditioning malfunc-
tion); Daspit v. Swann, 436 So. 2d 606 (La. App. 1 Cir. 1983) (fire damage due to
electrical malfunction).
229
Kendig v. Kendall Construction Co., 317 So.2d 138 (Fla. App. 1975).
230
Haddad v. Gonzalez, 576 N.E..2d 658 (Mass. 1991).
231
Goldstein v. Hutton Ingram, 374 F.3d 56 (2d Cir. 2004)(attorney’s 3 day notice demanding rent or departure); Romea v.
Heiberger Associates, 163 F. 3d 111 (2d Cir. 1998)(rent demand notice by attorney as predicate to eviction).
232
McGrath v. Mishara, 434 N.E.2d 1215 (Mass. 1982); Hodges v. Sasil Corp., 915 S.2d 1 (N.J. 2007).
233
Montgomery v. Donnett, 2006 WL 293727 (S.D. Oh. 2006).
234
In re Aponte, 82 B.R. 738 (Bankr. E.D. Pa. 1988).
235
Clarkson v. DeCaceres, 105 B.R. 266 (Bankr. E.D. Pa.1989).
236
Clarkson v. DeCaceres, 105 B.R. 266 (Bankr. E.D. Pa.1989).
237
Kraus v. Trinity Mgmt Servs., 67 Cal. Rptr.2d 210 (Cal. App. 1997).

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8.8 THIRD PARTY CRIMES

A landlord who provides substandard security may be liable for injuries
caused by a third party criminal. Veazey v. Elmwood Plantation Associates, 650
So.2d 712 (La. 1994); see also Wallmuth v. Rapides Parish School Bd., 813 So.2d
341 (La. 2002) (Veazey essentially reaffirmed after the 1996 amendments to com-
parative fault).

9. HOUSING DISCRIMINATION
9.1 INTRODUCTION
The federal Fair Housing Act is codified at 42 U.S.C. §§ 3601-3619 and 3631.
§§ 3604-3606 and 3617 contain the substantive prohibitions of the Act. A key
provision, § 3604(a), makes it unlawful to “refuse to sell or rent after the making
of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise
make unavailable or deny, a dwelling to any person because of race, color, religion,
sex, familial status, or national origin.” § 3604(f)(1) also bans handicap discrim-
ination. The phrase, “otherwise make unavailable or deny” has been broadly con-
strued to include numerous housing practices unspecified in § 3604(a), e.g.,
redlining, steering, exclusionary zoning, etc. HUD regulations implementing the
Act are codified at 24 C.F.R. § 100 et seq. The courts must generally defer to
HUD’s interpretations of the Act.238
42 U.S.C. §§ 1981 and 1982 also outlaw private and public racial discrimi-
nation in housing. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). They even
apply to housing that is exempt under the Fair Housing Act. The Louisiana Open
Housing Act, La. R.S. 51:2601 et seq., also prohibits housing discrimination. It is
virtually identical to the FHA. Some advantages to filing in state court under the
Open Housing Act would be an automatic lis pendens bar to subsequent eviction
lawsuits and avoidance of res judicata, Anti-Injunction Act and Rooker-Feldman
issues.239 On the other hand, the Open Housing Act does not have a body of case
law interpreting it . Also, the Open Housing Act has an attorney’s fee provision
that might be interpreted as “loser pays” rather than the FHA standard that limits
attorney fees to losing plaintiffs whose lawsuits were frivolous.

9.2 PROPERTIES COVERED BY FAIR HOUSING ACT

9.9.2.1 Dwellings
The Fair Housing Act prohibits discrimination in transactions involving
“dwellings.” 42 U.S.C. § 3602(b). “Dwelling” includes any building occupied or
intended to be occupied as a residence.
The courts have held the following properties, in addition to houses and
apartments, to be dwellings:
a. Mobile home parks. United States v. Warwick Mobile Home Estates, 537 F.2d
1148 (4th Cir. 1976).
b. Trailer courts. Stewart v. Furton, 774 F.2d 706 (6th Cir. 1985).
c. Condominiums. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir.
1979).
238
Chevron USA v. National Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984); Trafficante v. Metropolitan Life
Insurance Co., 409 U.S. 205, 210 (1972).
239
Also, a state court lawsuit that only pleads a state law claim may defeat removal to federal court.

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d. Summer homes. United States v. Columbus Country Club, 915 F.2d 877 (3d
Cir. 1990), cert. denied 501 U.S. 1205.
e. Motel providing long-term shelter to homeless. Red Bull Associates v. Best
Western International, 686 F. Supp. 447 (S.D. N.Y. 1988); but see, Johnson v.
Dixon, 786 F. Supp. 1 (D.D.C. 1991).
f. Home for AIDS patients. Baxter v. City of Belleville, Illinois, 720 F. Supp. 720
(S.D. Ill. 1989).
g. Group homes. House Rep. 100-711, p. 24, 100th Cong., 2d Sess. (1988).
h. Shelters and transitional housing. Doe v. City of Butler, Pa., 892 F. 2d 315
(3d Cir. 1989).
i. Timeshares. Louisiana ACORN Fair Housing v. Quarter House, 952 F. Supp.
352 (E.D. La. 1997).
Boarding houses, dormitories and all other facilities whose occupants remain
for more than a brief period are presumably covered as “dwellings” under the Act.
9.2.2 Exempted Dwellings
a. Owner’s direct sale or rental of his single family home. § 3603(b)(1). A four-
plex is not a ‘‘single family home.” Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003).
The § 3603(b)(1) exemption only applies to § 3604(a), (b), (d)-(f). Also, the
exemption has numerous exceptions. See e.g., Dillon v. AFBIC Development
Corp., 597 F.2d 556, 561 (5th Cir. 1979). An owner’s broker is not exempt.
b. Owner-occupied buildings with no more than 4 units. § 3603(b)(2).
c. Housing for “older persons” as to prohibition against familial discrimination.
3607(b)(2)-(3). Other forms of discrimination are, however, prohibited.
d. Religious organizations’ noncommercial dwellings.
e. Private clubs’ incidental noncommercial lodgings.
A defendant must plead and prove a FHA exemption as an affirmative
defense. United States v. Columbus Country Club, 915 F. 2d 877, 885 (3d Cir. 1990),
cert. denied 501 U.S. 1205. Exemptions are strictly construed. Singleton v. Gen-
dason, 545 F. 2d 1224, 1227 (9th Cir. 1976). Note: A landlord exempted under
§ 3603 is still liable for racial discrimination under 42 U.S.C. §§ 1981-82.

9.3 PROHIBITED BASES OF DISCRIMINATION

9.3.1 Race or color.
9.9.3.2 National origin.
Espinoza v. Hillwood Square Mut. Ass’n, 522 F. Supp. 559 (E.D. Va. 1981)
(Mexicans); cf. Cutting v. Mazzey, 724 F.2d 259 (1st Cir. 1984) (Italians).
9.3.3 Religion.
9.3.4 Sex or Sex Harassment
9.3.5 Handicap
The constitutionality of the FHA’s prohibition of handicap discrimination has
been upheld by the courts. See Groome Resources Ltd. v. Parish of Jefferson, 234
F.3d 192 (5th Cir. 2000). Every legal services housing advocate should read the
July 1999 Clearinghouse Review article, Using Reasonable Accommodations to Pre-
serve Rights of Tenants with Disabilities.240
240
33 Clearinghouse Rev. 131 (July-Aug.1999). The article can be obtained from www.povertylaw.org. See also the Bazelon
Center fact sheets on housing discrimination at www.probono.net/la.

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a. Definition: (1) a physical or mental impairment which substantially limits

one or more major life activities; (2) a record of having such impairment, or
(3) being regarded as having such an impairment. Definition is virtually iden-
tical to § 504 of the Rehabilitation Act definition. Congress intended inter-
pretations that are consistent with interpretation under § 504. Note: List
of “major life activities” in 24 C.F.R. 100.201 is not all-inclusive. United States
v. Borough of Audobon, 797 F. Supp. 353 (D.N.J. 1991) aff’d 968 F. 2d 14 (3d
Cir. 1992).
b. Exceptions: Transvestites and current illegal users of a controlled sub-
stance are excepted from the definition of “handicap.” Drug addiction is a
“handicap” if not accompanied by current illegal use.
c. Examples: Covered handicaps include alcoholism, AIDS, high blood pres-
sure, emotional problems, mental illness or retardation, learning disabilities,
cancer, epilepsy, cerebral palsy and many disabilities associated with old age.
See e.g., Cason v. Rochester Housing Authority, 748 F. Supp. 1002 (W.D. N.Y.
1990) (elderly); Oxford House Inc. v. Town of Babylon, 819 F. Supp. 1179 (E.D.
N.Y. 1993 )(recovering alcoholics and drug addicts); United States v. Southern
Management Corp., 955 F. 2d 914 (4 Cir. 1992) (former addicts).
d. Persons commonly “regarded as having an impairment” are the elderly, for-
mer substance abusers and HIV-positive persons.
e. The handicap discrimination provisions also protect persons residing or asso-
ciating with the handicapped, e.g., parents, children, spouses, roommates, etc.
f. Basic Prohibitions: “Handicap” was added to all FHA prohibitions except
3604(a) and 3604(b). For the handicapped, the 3604(a)-(b) prohibitions are
found in 3604(f)(1)-(2) with modifications to allow restriction of occupancy
to the handicapped.
g. Modifications Required: Handicapped tenants must be allowed, at their
own expense, to make any reasonable modifications necessary for full enjoy-
ment of premises, i.e., the unit, lobbies, main entrances, common areas, etc.
24 C.F.R. § 100.201. Landlord does not have absolute right to reject modi-
fications but may condition approval of unit modification on restoration agree-
ment.
h. Accommodation required: Housing providers must make reasonable accom-
modations in rules, policies, practices or services necessary to afford hand-
icapped persons “equal opportunity to use and enjoy a dwelling.” This means
“feasible practical modifications” and is derived from case law and regula-
tions interpreting § 504 of the Rehabilitation Act. Thus, the accommodation
must be made unless it imposes an undue financial or administrative burden
or requires a fundamental alteration in the nature of the provider’s program.
HUD and the Department of Justice have issued a joint statement on reason-
able accommodations that provides helpful guidance.241
i. Examples of required accommodations include (1) allowing seeing eye dog
for blind tenant, (2) reserving parking place for mobility-impaired tenant, (3)
waiving rules to allow handicapped tenant to have nontenant do his laundry.
241
Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable
Accommodations under the Fair Housing Act (May 17, 2004).

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9.3.6 Familial Status

a. Definition: “Familial status” is defined as one or more individuals under the
age of 18 living with a parent, a person having legal custody, or the designee
of such parent or legal custodian. The definition includes a person who is
pregnant or about to obtain custody of a minor.
b. Basic Prohibitions: All FHA prohibitions apply to familial status discrimi-
nation subject to the exemption for housing for older persons.
c. Occupancy Standards: 42 U.S.C. § 3607(b)(1) allows providers to comply
with “reasonable” local, state or federal occupancy standards. HUD has
declined to define “reasonable.” A “totality of circumstances” analysis is
generally applied to an occupancy standard. A trailer park’s “3 person per
unit” and an apartment complex’s one person/one bedroom, two person/two
bedroom restrictions have been held to violate the FHA. HUD v. Mountain
Side Mobile Estates, FH-FL Rptr. 25,492-93 (HUD Secy 1993); United States
v. Badgett, 976 F.2d 1176 (8th Cir. 1992). Badgett referred to HUD’s rule of
thumb that occupancy limits of two persons per bedroom are presumptively
reasonable. HUD has provided guidance by memorandum that indicates fac-
tors which may warrant deviation from the two person per bedroom standard
such as size and configuration of the bedroom and unit.
d. Discriminatory Effects: Familial status discrimination may apply to prac-
tices that have a disproportionate impact on families with children. Note:
This could play a large role in familial status discrimination litigation.
e. Exemption: Housing for “older persons” is exempted from the FHA prohi-
bitions against familial status discrimination. 42 U.S.C. § 3607(b)(1)-(3).
Detailed HUD regulations on this exemption are found at 24 C.F.R. § 100.300.

9.4 DISCRIMINATORY PRACTICES

1. Refusal to rent or negotiate. HUD v. Pheasant Ridge, HUD ALJ 05-94-0845-
8 (10/25/96), FH-FL Rptr. ¶ 25,123 (Section 8 landlord assessed $50,452
damages for failure to rent to mentally ill siblings).
2. False representation of availability.
3. Discriminatory terms, conditions, services:
• Refusal to allow early lease termination to disabled tenant. Samuelson v.
Mid-Atlantic Realty Co. 947 F. Supp. 756 (D.Del. 1996).
• Higher security deposits. 24 C.F.R. § 100.203(a).
• Discriminatory maintenance or delays in repairs. 24 C.F.R. § 65(b)(2).
• No children policy. Betsey v. Turtle Creek Associates, 736 F.2d 983 (4th Cir.
1984)
4. Eviction:
• Eviction of minorities for late payment of rent discriminatory if landlord
has not evicted other tenants who paid late. Khamaja v. Wyatt, 494
F.Supp. 302, 303 (W.D.N.Y. 1980)
• Whites cannot be evicted for associating with blacks. Woods-Drake v.
Lundy, 667 F. 2d 1198, 1201 (5th Cir. 1982); Bill v. Hodges, 628 F.2d 844
(4th Cir. 1980)(§1982 also prohibits such evictions).

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• Eviction because of request to have foster children. Gorski v. Troy, 929

F.2d 1183 (7th Cir. 1991).
5. Steering. Zuch v. Hussey, 394 F. Supp. 1028 (E.D.Mich. 1975), aff’d in relevant
part 547 F. 2d 1168 (6th Cir. 1977).
6. Retaliation
7. Coercion, intimidation, threats, interference.
8. Discriminatory advertising.
9. Rehabilitation of housing development. Brown v. Artery Organization, 654 F.
Supp. 1106 (D.D.C. 1987).
10. Government’s failure to seek subsidized housing. United States v. City of
Parma, 661 F. 2d 562, 575 (6th Cir. 1981) cert. denied 456 U.S. 926.
11. Brokerage services. United States v. Balistrieri, 981 F. 2d 916 (7th Cir. 1992),
cert. denied 510 U.S. 812 (real estate agent showed black apt. seekers fewer
units).
12. Poorer municipal services. Campbell v. City of Berwyn, 815 F. Supp. 1138
(N.D.Ill. 1993); cf. Hawkins v. Town of Shaw, Mississippi, 437 F. 2d 1286 (5th
Cir. 1971) aff’d on rehearing en banc 461 F. 2d 1171 (5th Cir. 1972); United
Farm Workers of Fla. Housing Project v. City of Delray Beach, 493 F. 2d 799
(5th Cir. 1974); but see Vercher v. Harrisburg Housing Authority, 454 F. Supp.
423 (M.D.Pa. 1978).

9.5 EXAMPLES OF DISCRIMINATORY PRACTICES

This section provides more examples of specific discriminatory practices by
type of discrimination:
9.5.1 Familial Status Discrimination
a. Eviction of families of four from two bedroom apartments. HUD v. Den-
ton, FH-FL Rptr. 25,024 (HUD ALJ 1992).
b. Policy prohibiting one adult/one child in one bedroom and one
adult/three children in two bedrooms. Glover v. Crestwood Lake Section
1 Holding Corp., 746 F. Supp. 301 (S.D.N.Y. 1990).
c. Refusal to rent one bedroom apartment to parent and child. HUD v.
Properties Unlimited, FH-FL Rptr. 25009 (HUD ALJ 1991).
d. Policy of no more than 4 persons in 3 bedroom unit. Hillcroft Partners v.
Cm’n on Human Rights, 205 Conn. 324 (1987).
e. Children of certain ages cannot be banned. HUD v. Edelstein, FH-FL
Rptr. 25237-39 (HUD ALJ 1991) aff’d 978 F.2d 1258 (6th Cir. 1992).
f. Limitations based on number of children are illegal. HUD v. Kelly, FH-
FL Rptr. 25357-58 (HUD ALJ 1992) aff’d 3 F. 3d 951 (6th Cir. 1993);
HUD v. Edelstein, supra. However, “reasonable” occupancy standards
are allowed.
g. Families with children cannot be segregated within a complex. 24 C.F.R.
100.70 (c)(4).
h. Occupancy restriction of 2 persons per unit. Fair Housing Council v.
Ayres, No. SACV 93-149 (C.D.Cal, June 16, 1994), 1994 WL 278535.

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i. Increase in rent or security deposit based on number of children. HUD

v. Alfaya, No. HUD ALJ 09-89-0766-1.
j. Apartment rule prohibiting children from playing in common areas. 24
C.F.R. 100.65 (b)(4).
k. Rules restricting children from using pool at certain times. HUD v.
Lerner, No. HUD ALJ 09-89-1172-1 (7-20-90); HUD v. Paradise Gardens,
FH-FL Rptr. 25388-91 (HUD ALJ 1992).
l. Refusal to rent home because of concerns that property would pose dan-
ger to children. United States v. Grishman, 818 F. Supp. 21 (D.Me. 1993).
m. Oral statement that indicates preference or discrimination based on
familial status. White v. HUD, 475 F.3d 898 (7th Cir. 2007).
9.5.2 Handicap Discrimination
a. Inquiries about handicap or nature/severity. 24 C.F.R. § 100.202(c);
Cason v. Rochester Housing Authority, 748 F. Supp. 1002 (W.D.N.Y.
1990)(PHA can’t inquire into applicant’s ability to live independently).
b. Eviction of mentally ill tenant without making reasonable efforts to
accommodate. Roe v. Sugar Mill Associates, 820 F. Supp. 636 (D.N.H.
1993); Citywide Associates v. Renfield, 564 N.E. 2d 1003 (Mass. 1991).
c. Eviction of mentally ill tenants for criminal activity without individual-
ized assessment of whether reasonable accommodations would accept-
ably minimize risk to others. Boston Housing Authority v. Bridgewaters,
898 N.E.2d 848 (Mass. 2009)(housing authority must show that no rea-
sonable accommodation would minimize risk mentally ill tenant poses
to others); Housing Authority of City of Camden v. Williams, 2011 WL
1261109 (N.J. App. 2011); but see Housing Authority of the City of Lake
Charles v. Pappion, 540 So.2d 567 (La. App. 3 Cir. 1989)(§ 504 case).
d. Termination of Section 8 tenant with dementia for failure to report
receipt of Social Security income. Cf. Bush v. Mulligan, 869 N.Y.S.2d 569
(N.Y. A.D. 2008)(termination reversed without citation to Fair Housing
Act, § 504 or ADA).
e. Eviction for fire hazards without helping tenant get rid of problem.
Schuell Investment Co. v. Anderson, 386 N.W. 2d 249 (Minn. App. 1986).
f. Eviction of elderly or disabled tenants for poor housekeeping. Rutland
Court Owners, Inc. v. Taylor, 997 A.2d 706 (D.C. 2010)(mentally disabled
tenant must be given more time to clean); Cordrey v. Housing Authority
of Holyoke, 14 Clearinghouse Rev. 1191 (May 1981).
g. Discriminatory treatment of mentally ill applicants. Doe v. Housing
Authority of Pittsburgh, 17 Clearinghouse Rev. 463 (Aug./Sept. 1983).
h. Refusal to rent to disabled tenant unless she signed hold harmless
agreement–a requirement not made of the non-disabled. HUD v. Com-
munity Homes-Western Village, HUD ALJ 10-90-0049-1 (7-10-91).
i. No pets rule as to mentally disabled tenant who needed companionship
of dog. Majors v. Housing Authority of the County of Dekalb, Georgia, 652
F. 2d 454 (5th Cir. 1981); Whittier Terrace Associates v. Hampshire, 532
N.E. 2d 712 (Mass. App. 1989).

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j. Refusal to waive guest fees for medical care required by handicapped

tenant. United States v. California Mobile Home Park Management, No.
92-55568 (9th Cir., July 18, 1994).
k. Refusal to give a disabled coop resident a ground floor parking space.
Shapiro v. Cadman Towers, Inc., 51 F. 3d 328 (2d Cir. 1995) (prelim. inj.
grt’d).
l. Refusal to allow tenant with emphysema to have an air conditioner.
Aegean Investors v. Walker, 27 Clearinghouse Rev. 808 (Nov. 1993).
m. HUD’s refusal to transfer disabled Section 8 tenants to housing for the
disabled. Lidder v. Cisneros, 823 F.Supp. 164 (S.D.N.Y.) (HUD’s motion
to dismiss denied).
n. Refusal to rent or negotiate. HUD v. Pheasant Ridge, HUD ALJ 05-94-
0845-8 (10/25/96), FH-FL Rptr. ¶ 25,123 (Section 8 landlord assessed
$50,452 damages for failure to rent to mentally ill siblings).
o. Refusal to allow an indigent person with AIDS to reside in an apartment
rented for him by his financially qualified mother. Giebeler v. M & B
Associates, 343 F.3d 1143 (9th Cir. 2003).
9.5.3 Sex Discrimination
a. Refusal to rent to single women or working mothers. Morehead v. Lewis,
432 F. Supp. 674 (N.D.Ill. 1977) aff’d 594 F. 2d 867 (7th Cir. 1979).
b. Discounting woman’s income in evaluating family’s ability to pay for hous-
ing. Normal v. St. Louis Concrete Pipe Co., 447 F. Supp. 624 (E.D.Mo.
1978).
c. Discounting alimony or child support payments. United States v. Reece,
457 F. Supp. 43 (D.Mont. 1978).
d. Sex harassment. Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010); United
States v. Presidio Investments, Ltd., 4 F. 3d 805 (9th Cir. 1993); Honce v.
Vigil, 1 F. 3d 1085 (10th Cir. 1993); Gaellhammer v. Lewallen, 1 FH-FL
Rptr. 15472 (N.D. Ohio 1983) aff’d 770 F. 2d 167 (6th Cir. 1985)(couple
evicted because wife refused sex with landlord); Chomicki v. Wittekind,
381 N.W.2d 561 (Wis. App. 1985)(female tenant evicted after refusing
landlord’s demand for sex); Greiger v. Sheets, 689 F. Supp. 835 (N.D.Ill.
1988)(landlord damaged property, refused repairs after female tenant
refused sex); Genere v. Massahusetts Cm’n Against Discrimination, 524
N.E.2d 84 (Mass. 1988)(landlord made offensive sexual comments, but
never demanded sex or threatened adverse action). See also proposed
24 CFR § 100.500 at 65 Fed. Reg. 67666 (Nov. 13, 2000).
Note: Both “quid pro quo” and “hostile environment” sexual harass-
ment are actionable.
e. Eviction of domestic violence victim. Lewis v. North End Village, No.
2:07-cv-10757 (E.D. Mich. 2/26/08); Bouley v. Young-Sabourin, 394
F.Supp.2d 675 (D.Vt. 2005).
9.5.4 Racial Discrimination
a. Delayed action on minority couple’s apartment application. Davis v.
Mansards, 597 F. Supp. 334 (N.D.Ind. 1984).
b. Refusal to show available apartments. Bradley v. John M. Brabham
Agency, Inc., 463 F. Supp. 27 (D.S.C. 1978).

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c. “Grudging” sales techniques. United States v. Pelzer Realty Co., Inc., 484
F. 2d 438 (5th Cir. 1973) cert. denied 416 U.S. 936.
d. Showing blacks fewer units, quoting them higher rents and later dates
of availability. United States v. Balestrieri, 981 F. 2d 916 (7th Cir. 1992),
cert. denied 510 U.S. 812.
e. Requirements that minority applicants be approved or recommended by
current tenants or other neighbors. Robinson v. 12 Lofts Realty, Inc.,
610 F. 2d 1032 (2d Cir. 1979); Grant v. Smith, 574 F. 2d 252 (5th Cir.
1978).
f. Sales person’s influence of customer’s decision on racial grounds. Zuck
v. Hussey, 394 F.Supp. 1028 (E.D. Mich. 1975) aff’d 547 F.2d 1168 (6th
Cir. 1977).
g. Refusal to amend zoning ordinance to allow construction of multifamily
housing outside of urban renewal area. Huntington Branch, NAACP v.
Town of Huntington, 844 F.2d 926 (2d Cir.) aff’d per curiam 488 U.S. 15
(1988).
h. Closing private road to black neighbor but allowing whites to use it.
Evans v. Tubbe, 657 F.2d 661 (5th Cir 1981).
i. Providing poorer services over time period when white tenants being
replaced by black tenants. Concerned Tenants Ass’n v. Indian Trails Apts.,
496 F.Supp. 522 (N.D. Ill. 1980).
j. Substandard conditions in housing projects. Durrett v. Housing Authority
of the City of Providence, 896 F.2d 600 (1st Cir. 1990).
k. Poorer municipal services for blacks. Campbell v. City of Berwyn, 815
F.Supp. 1138 (N.D. Ill. 1993), cf. United Farm Workers of Florida Housing
Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974).
l. False representation of unavailability. Havens Realty Co. v. Coleman, 455
U.S. 363 (1982).
m. Vandalism of new black resident’s property by white neighbor. 42 USC
§ 3617; Stackhouse v. DeSatter, 620 F.Supp. 208 (N.D. Ill. 1985); see also
Sofarelli v. Pinellas Cty., 931 F. 2d 718 (11th Cir. 1991)(neighbors’
threats, obscenities, spitting).
n. Intimidation tactics by local resident to discourage Jews from moving
into town. LeBlanc-Steinberg v. Fletcher, 781 F.Supp. 261 (S.D.N.Y. 1991).
o. Neighbor’s verbal harassment of a Hmong who was inspecting next door
house as a prospective tenant. 42 USC § 3617; HUD v. Weber, FH-FL
Rpts 25041.
p. Operation of segregated public housing and Section 8 housing programs
in metropolitan area. Walker v. HUD, 912 F.2d 819 (5th Cir. 1990).
q. Failure of PHA to locate replacement units in white areas. Christian
Community Action, Inc. v. City of New Haven, Clearinghouse No. 52,438
(D.Conn. 1999).
r. Refusal of apartment complex to accept Section 8 applicants. Bronson
v. Crestwood Lake Apts., 724 F.Supp. 148 (S.D. N.Y. 1989); but see Salute
v. Stratford Greens Garden Apts., 136 F. 3d 293 (2d Cir. 1998)(2-1)(FHA
not violated by refusal to accept Section 8 tenants).

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9.6 PROCEDURE
9.6.1 Jurisdiction
Private plaintiff may bring lawsuit pursuant to 42 U.S.C. § 3613 in any appro-
priate United States district court or state court of general jurisdiction. A federal
court may hear related state law claims under supplemental jurisdiction. 28
U.S.C. § 1367(a).

9.6.2 Statute of Limitations

Private civil actions under 42 U.S.C. § 3613 must be filed not later than 2
years after the occurrence or termination of the discriminatory practice. 42 U.S.C.
§ 3613(a)(1)(A). HUD administrative complaints may interrupt or toll the statute
of limitations. The U.S. Supreme Court has held that claims under 42 U.S.C. §§
1981 are subject to the 4 year statute of limitation in 28 U.S.C. § 1658. Jones v.
R.R. Donnelly & Sons, 541 U.S. 369 (2004). Claims under 42 U.S.C. § 1982 are
subject to a one year statute of limitations. See Goodman v. Lukens Steel Co., 482
U.S. 656, 660-62 (1987); Bradley v. Carydale Enterprises, 707 F. Supp. 217, 220
(E.D. Va. 1989). Claims under the Louisiana Open Housing Act are subject to a
2 year statute of limitations. La. R.S. 51:2613.242

9.6.3 Standing to Sue

Standing to sue depends on the substantive law involved. Plaintiffs under the
FHA have standing if they are injured in any way by the FHA violation and may
even assert third party rights. Plaintiffs have been granted standing under the
FHA for being deprived of the social and professional benefits of living in an inte-
grated society. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109 (1979).

9.6.4 Jury Trials

FHA plaintiffs are entitled to jury trials in federal lawsuits for damages. Cur-
tis v. Loether, 415 U.S. 189, 192 (1974). Jury trials are also available for 42 U.S.C.
§§ 1981-82 actions. Thronson v. Meisels, 800 F.2d 136 (7th Cir. 1986).

9.6.5 Interlocutory Injunction

Rule 65 of the FRCP governs temporary restraining orders. Preliminary
injunctions may be consolidated with the trial on the merits. Evidence received
at the preliminary injunction becomes part of record and need not be repeated at
trial. You should, however, take steps to preserve your jury trial. Discriminatory
housing practices constitute irreparable injury. Gresham v. Windrush Partners, Inc.,
730 F.2d 1417, 1423-24 (11th Cir. 1984).
The Anti-Injunction Act bars federal courts from enjoining an already filed
state court action except in certain cases. The courts are divided over whether
the Anti-Injunction Act applies to FHA claims. Compare Casa Marie, Inc. v. Supe-
rior Court of Puerto Rico, 988 F. 2d 252 (1st Cir. 1993) with Oxford House, Inc. v.
City of Albany, 819 F. Supp. 1168 (N.D.N.Y. 1993). Note, however, the Anti-Injunc-
242
Many subsidized housing leases will have a contract provision whereby the landlord agrees not to unlawfully discrim-
inate. Contract claims are subject to a 10 year statute of limitations in Louisiana. However, the courts will probably
apply the shorter statute of limitations for fair housing act violations (1, 2 or 4 years as applicable), torts (1 year) and
crimes of violence (2 years). See e.g., Sterling v. Urban Property Co., 562 So.2d 1120 (La. App. 4 Cir. 1990).

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tion Act would not apply if the defendant is a “state actor” subject to suit under
42 U.S.C. § 1983. But, abstention under Younger v. Harris, 401 U.S. 37, may bar
the federal injunction.243

9.6.6 Rule 68 Offers

Note that Marek v. Chesney, 473 U.S. 1 (1980), may not apply to attorney fees
in cases brought under the FHA. Id. at 23-27 (Brennan, J., dissenting).

9.6.7 Issue Preclusion

Res judicata and collateral estoppel issues may arise when the landlord has
obtained an eviction judgment. In Miller v. Hartwood Apts., 689 F.2d 1239 (5th
Cir. 1982), the court held that a Mississippi eviction court judgment did not bar
the federal court litigation of a § 1983 claim since these tenants’ constitutional
claims could not have been litigated in the eviction lawsuit.244 Note that while
tenants’ damage claims cannot be litigated in eviction lawsuits, discrimination
can be asserted as a defense to possession in Louisiana. Mascaro v. Hudson, 496
So.2d 428 (La. App. 4 Cir. 1986). Failure to raise damage claims as a reconven-
tional demand to an eviction brought as an ordinary action could, however, act as
res judicata. Lafreniere Park Foundation v. Broussard, 221 F.3d 804 (5th Cir. 2000).
To avoid issue preclusion problems, you should file a housing discrimination
lawsuit before the landlord files an eviction lawsuit and obtain a state court lis
pendens or federal court injunction against any eviction.245

9.6.8 Rooker/Feldman Doctrine

The Rooker/Feldman doctrine deprives a federal court from jurisdiction to
review state court judgments in cases brought by state-court losers complaining
of injuries caused by a state court judgment rendered before the federal suit began.
Rooker-Feldman does not apply to fair housing discrimination claims based on
conduct that predates the state court judgment.246 However, some courts, includ-
ing the Fifth Circuit, may apply Rooker/Feldman more broadly to bar actions that
require review of validity of a state court eviction judgment.247

9.7 PROVING A VIOLATION

1. Overview: There are 2 types of claims under the FHA: (1) disparate treat-
ment and (2) discriminatory impact or effect. The proof required depends on
the type of claim.
243
For examples of housing cases (non-FHA) where tenants have defeated Younger v. Harris abstention, see Kemp v.
Chicago Housing Authority, 2010 WL 2927417 (N.D. Ill. 2010)(termination of public housing assistance); Ayers v. Phila.
Housing Authority, 908 F.2d 1184, 1195, n. 21 (3d Cir. 1990)(due process); McNeill v. New York City Housing Authority,
719 F. Supp. 233, 255 ( S.D.N.Y. 1989)(procedures for terminating rent subsidy).
244
Where a state court procedure permits counterclaims for equitable or monetary relief in an eviction, the eviction judg-
ment may constitute res judicata. See e.g., Poindexter v. Allegheny County Housing Authority, 329 Fed Appx. 347 (3d
Cir. 2009).
245
Caveat: It can be difficult to obtain appellate review of the second court’s improper denial of a lis pendens exception
in a summary eviction proceeding. If the second court does not allow a brief period to apply for supervisory writs, you
may be unlawfully forced to litigate the trial on the merits in the second court. A denial of lis pendens may be reviewed
by supervisory writs. Dean v. Delacroix Corp., 853 So.2d 769 (La. App. 4 Cir. 2003).
246
Poindexter v. Allegheny County Housing Authority, 329 Fed Appx. 347 (3d Cir. 2009); Long v. Shore Bank Development
Corp., 182 F.3d 548 (7th Cir. 1999).
247
See e.g., Illinois Central R. Co. v. Guy, 682 F.3d 381, 390-91 (5th Cir. 2012); Babalola v. B.Y. Equities, Inc., 63 Fed. Appx.
534 (2d Cir. 2003); Chambers v. Habitat Co., 215 F.3d 1329 (7th Cir. 2000).

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2. Disparate Treatment (or Intentional Discrimination)

a. Pretext cases
This claim involves the housing provider treating a protected person dif-
ferently. The issue is the provider’s intent. The provider usually claims
that there was a legitimate nondiscriminatory reason for his action. Evi-
dence of discriminatory intent may be either direct or circumstantial.
Cases based on circumstantial evidence are guided by the “prima
facie” concept. See e.g. HUD ex rel Herron v. Blackwell, 908 F.2d 864,
870-71 (11th Cir. 1990). To establish a prima facie case of disparate
treatment, the plaintiff who has been denied housing must show:
(1) he is a member of a protected class
(2) he applied for248 and was qualified to rent/purchase the unit.249
(3) he was rejected by the defendant
(4) the housing opportunity remained available thereafter.250
The defendant must then show a legitimate nondiscriminatory rea-
son for the adverse action. If this burden is met, the plaintiff must show
that the “legitimate reasons were a pretext” for discrimination. Pretext
may be proven with “testing” evidence. Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982).
For information on testing services that may be available in your
area, contact the Greater New Orleans Fair Housing Action Center, Ph.
(504) 596-2100.
b. Mixed Motive Cases
Mixed motive cases involve housing decisions that are based only in
part on a prohibited motive. All of the courts of appeals have held that
the FHA is violated even if race is just one of the motivating factors.251
See e.g., Payne v. Bracher, 582 F.2d 17, 18 (5th Cir. 1978). In Price Water-
house v. Hopkins, the Supreme Court held that a Title VII defendant could
win if it could prove that the same decision would have been made if it
had not taken race into account.252 The Civil Rights Act of 1991 partially
overruled the Price Waterhouse standard for “mixed motive” Title VII
cases; however, the Price Waterhouse standard still applies to Title VIII
Fair Housing Act cases. See HUD v. Denton, FH-FL Rptr. 25,024 (HUD
ALJ 1992).253
3. Discriminatory Effect
The courts of appeals have unanimously held that the FHA covers practices
that simply produce discriminating effect. See e.g. United Stated v. Mitchell,
580 F.2d 789, 791-92 (5th Cir. 1978). There have been 2 types of discrimi-
248
An application may be unnecessary under the futile gesture doctrine. Punchback v. Armistead Homes Group, 907 F.2d
1447 (4th Cir. 1990).
249
Plaintiff should be financially qualified for the unit.
250
Testers can be used to prove this element.
251
However, it is possible that the Fair Housing Act no longer allows for mixed motive discrimination claims. See Gross
v. FBL Financial Services, 557 U.S. 167 (2009)(no mixed motive claims for ADEA).
252
490 U.S. 228 (1989).
253
For more on mixed motive cases, see C. Giles, Shaking Price Waterhouse: Suggestions for a More Workable Approach to
Title VIII Mixed Motive Disparate Treatment Discriminatory Cases, 37 Ind. L. Rev. 815 (2004).

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natory effect cases: (1) perpetuation of segregation (Town of Huntington) and

(2) discriminatory impact (Betsey v. Turtle Creek Associates). The Supreme
Court has never ruled on the issue of whether discriminatory effect is action-
able under the FHA. Huntington Branch, NAACP v. Town of Huntington, 844
F.2d 926 (2d Cir.) aff’d 488 U.S. 15 (1988)(4-4).254 A good example of a dis-
criminatory effects case is Betsey v. Turtle Creek Associates, 736 F.2d 983 (4th
Cir. 1984) where a “no children” policy was found to have a discriminatory
effect on minorities.
The key to proving a disparate impact claim is evidence that the defen-
dant’s practice has a greater impact on the protected class than others. Proof
of a prima facie case of disparate impact shifts the burden to the defendant
to justify the challenged practice.
The courts of appeals have stated the defendant’s burden differently.
Huntington said that there must be legitimate justifications with no less dis-
criminatory alternative available. Betsey v. Turtle Creek Associates, 736 F.2d
983 (4th Cir. 1984) held that the defendant must show business necessity.
It is, however, possible that defendant could now argue for the Wards Cove
(490 U.S. 642) Title VII defense of “justification that serves its legitimate
goals in a significant way.”
Note: Housing discrimination claims based solely on 42 USC § 1982
appear to be limited to discriminatory intent cases. Proof is generally gov-
erned by the same standards that apply in a FHA case.

9.8 RELIEF
9.8.1 Actual Damages
Tort principles apply to FHA damage suits. Curtis v. Loether, 415 U.S. 189
(1974). Damages vary from the nominal to $500,000 or more. Data on damages
in FHA cases can be found at www.fairhousing.com. Generally, the major compo-
nents of actual damages in FHA cases are humiliation, embarrassment and emo-
tional distress. For a discussion of damage awards, see Maximizing Damage
Awards in a Fair Housing Case, 26 John Marshall L.R. No. 1 (1993).
9.8.2 Punitive Damages
The 1988 amendments to the FHA eliminated the $1,000 cap for punitive
damages. The 5th Circuit upheld a $55,000 punitive damages award where the
actual damages were only $500. Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003). The
8th Circuit recently used a multiplier of 4 in a sex harassment case. Quigley v. Win-
ter, 598 F.3d 938 (8th Cir. 2010). The major Supreme Court case on punitive dam-
ages in civil rights cases is Smith v. Wade, 461 U.S. 30 (1983). At least 4 circuits
have held that the Smith v. Wade standard for punitive damages applies to FHA
claims. Lincoln v. Case, supra.
9.8.3 Equitable Relief
Under § 3613, the court may grant permanent and interlocutory injunctions.
The courts are divided over whether the Anti-Injunction Act bars FHA injunctions
of state court actions in progress. Compare Casa Marie, Inc. v. Superior Court of
254
In 2011, the U.S. Supreme Court granted certiorari to review this issue. Magner v. Gallagher, 132 S.Ct. 548 (2011).
However, the case has been dismissed. 132 S.Ct. 1306 (2012). At the time of publication, the Court has granted cer-
tiorari in another case presenting this issue. Township of Mt. Holly, New Jersey v. Mt. Holly Gardens Citizens in Action,
2012 WL 5289462 (2012).

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Puerto Rico, 988 F. 2d 252 (1st Cir. 1993) with Oxford House, Inc. v. City of Albany,
819 F. Supp. 1168 (N.D.N.Y. 1993). Given these uncertainties, it may be preferable
to sue in state district court when a FHA plaintiff faces a state court summary
eviction lawsuit.255 Lis pendens should bar the eviction action and force the liti-
gation of said issues in the housing discrimination lawsuit.
9.8.4 Attorney’s Fees
The 1988 FHA Amendments strengthened the attorney’s fee provision and
made it virtually identical to 42 U.S.C. § 1988. See 42 U.S.C. § 3613(a). Attorney’s
fees are also available under the Louisiana Open Housing Act. Note, however,
that Act 687 of 1999 amended the LOHA to provide attorney’s fees to both the
prevailing plaintiff and defendant. Although, the sponsors of Act 687 said that
their intent was to adopt the same attorney’s fees standard as the FHA, it is pos-
sible that the courts will use a “loser pays” standard rather than the “frivolous”
standard used in FHA cases.

10. SECURITY DEPOSITS

10.1 SUMMARY OF RENT DEPOSIT RETURN ACT
The Rent Deposit Return Act, La. R. S. 9:3251 et. seq., requires a landlord
to return a tenant’s deposit, minus any portion which is necessary to remedy a
tenant’s default, or to remedy unreasonable wear to the premises, within one
month of the termination of the lease.
If any portion of the deposit is retained, the landlord must furnish the tenant
an itemized statement accounting for the retained proceeds and giving the reason
therefor, within one month after the tenancy terminates. The tenant must give
the landlord a forwarding address to which the itemized statement may be sent.
If the landlord transfers his interest in the apartment during the lease term,
he must transfer the security deposit to his successor in interest in order to be
relieved of further liability with respect to the security deposit.
The statutory procedure created by La. R.S. 9:3251(A) for the return of secu-
rity deposits does not apply if the tenant abandons the premises without giving
the required notice or abandons it prior to the termination of the lease. La. R.S.
9:3251(C). Presumably, midterm cancellation of the lease for legal cause would
relieve the tenant from the notice requirements of R.S. 9:3251 (C).
Willful failure to comply with the Rent Deposit Return Act subjects the land-
lord to an additional penalty of $200 (or actual damages if greater) and attorney’s
fees. The $200 penalty is in addition to the security deposit refund. See La. R. S.
9:3252 (A). Miller v. Ecung, 676 So.2d 656 (La. App. 3 Cir. 1996) ($1,000 in attor-
ney’s fees); Vinson v. Henley, 864 So.2d 894 (La. App. 2 Cir. 2004) (additional
$1,250 attorney’s fees for appeal). Note that some small claims courts may deny
attorney’s fee to a prevailing tenant or award an unreasonably low amount.
10.2 PRE-LITIGATION PLANNING
A tenant who seeks the return of a security deposit should always (1) give a
timely notice of lease termination, (2) make a written demand for return of the
deposit and (3) retain proof of the notice and demand.
255
Note that a different situation would be presented if you also had a 42 U.S.C. § 1983 action against a governmental
FHA defendant since a 1983 action is a recognized exception to the Anti-Injunction Act. But, you should also consider
whether Younger v. Harris abstention applies.

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Under La. R. S. 9:3251, a tenant must give the landlord notice of his intent
to terminate the tenancy, as required by the lease or law. The lease (or other
agreement) will normally govern the amount and type of notice. Saladino v. Rault
Petroleum Corp., 436 So.2d 714 (La. App. 4 Cir. 1983). In the absence of a lease
provision (or other agreement) as to the required notice, Louisiana Civil Code arti-
cle 2728 requires that the tenant give 10 days written notice of termination prior
to the end of the current rental month. Thus, as a matter of course, the tenant
should be advised to give timely notice of termination in writing and to retain a
copy for proof at trial.
In order to maximize leverage for negotiation and litigation of a security
deposit claim, a written demand for the refund should always be made on the land-
lord upon termination of the tenancy. This demand should include a “forwarding
address” to which the landlord’s itemized accounting of the damages and retained
security deposit may be sent.
The written demand for refund will provide a basis for the court to impose
an additional $200 penalty plus attorney’s fees on the landlord if he fails to remit
within 30 days after the written demand. La. R. S. 9:3252-53. Several courts
have held that the failure to make a written demand for refund bars the tenant
from recovering the $200 penalty and attorney’s fees from the landlord.256

10.3 MAJOR ISSUES IN LITIGATION

10.3.1 Introduction
The common issues in security deposit litigation involve the various landlord
defenses and whether the tenant is entitled to the additional $200 penalty.
10.3.2 Landlord Defenses
10.3.2.1 Adequacy of Tenant’s Notice of Termination
A tenant must give the landlord timely notice of termination as required by
the lease or law. Notice by mail should be sufficient unless otherwise precluded
by the lease. Moore v. Drexel Homes, Inc., 293 So.2d 500 (La. App. 4 Cir. 1974),
writ denied 295 So.2d 812 (La. 1974). Testimony by the tenant (or the mailer),
that he personally mailed the notice, postage prepaid, properly addressed, and
that the letter was not returned, creates a presumption that the landlord received
the notice. See, e.g. Moore, supra at 502-04.
Prior to the enactment of La. R. S. 9:3251(C), an inadequate notice of termi-
nation was merely viewed as a breach of a lease obligation. It would not preclude
recovery of a security deposit unless the landlord incurred actual damage from
such default. See, e.g., Garb v. Clayton-Kent Builders, Inc., 307 So.2d 813, 814-15
(La. App. 1 Cir. 1975) (failure to give 30 day notice required by lease did not forfeit
security deposit). However, the courts generally interpret La. R. S. 9:3251(C) to
bar recovery of a security deposit if the tenant did not provide proper notice of
termination. Low v. Bologna, 11 So.3d 1246 (La. App. 1 Cir. 2009); Mays v. Alley,
599 So.2d 459 (La. App. 2 Cir. 1992).257 In Bologna, the court found that the ten-
256
Maxie v. Juban Lumber Company, 444 So.2d 181 (La. App. 1 Cir. 1983); Trapani v. Morgan, 426 So.2d 285 (La. App. 4
Cir. 1983), writ denied 433 So.2d 165 (La. 1983).
257
See, R. Hersbergen, Developments in the Law, 1980-81: Consumer Protection, 42 La. L. Rev. 513, 535 (1982). If it can
be argued that La. R. S. 9:3251 does not supersede the tenant’s underlying contractual cause of action, then failure to
give the landlord proper notice would only render the statutory cause of action under La. R. S. 9:3251(A) -52 inappli-
cable and would not bar recovery of the security deposit under the contractual cause of action.

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ants gave notice in December, but that it only terminated the lease for January.
Since the tenants vacated in December, the court declined to order the refund of
their security deposit. However, the court applied it as a credit toward the unpaid
January rent.
Timeliness, form (written vs. oral) and method of service or delivery are the
most common grounds for challenging the adequacy of a tenant’s notice of termi-
nation. An arguably defective not ice of termination may be overcome in certain
circumstances. For example, waiver of a notice requirement or mutual cancel-
lation of the lease, if provable, should remove any La. R. S. 9:3251(C) bar to
recovery.258 Presumably, midterm cancellation of the lease for legal cause, e.g.,
violation of the warranty of habitability or constructive eviction, would also relieve
the tenant from the notice requirements of La. R. S. 9:3251(C). Cf. Nash v.
LaFontaine, 407 So.2d 783 (La. App. 4 Cir. 1981); see also La. Civ. Code art. 2714-
19. Surrender of possession to the landlord at “the time at which the notice of ter-
mination shall be given under Article 2728” shall constitute sufficient notice. See
La. Civ. Code art. 2729. Thus, for example, if a month-to-month tenant surrenders
possession 10 calendar days before the end of the rental month, the surrender
shall constitute adequate notice.
10.3.2.2 Abandonment
Abandonment of the apartment prior to lease expiration may be argued as a
defense to a security deposit lawsuit. Hood v. Ashby Partnership, 446 So. 2d 1347
(La. App. 1 Cir. 1984) (court said that the statute simply required a tenant to
abide by the lease terms). In Curtis v. Katz, 349 So.2d 362 (La. App. 4 Cir. 1977),
writ denied 351 So.2d 179 (La. 1977), the court held that living at a new apartment
prior to the expiration of the lease did not constitute abandonment where the ten-
ant retained the key, and kept some property at the old apartment until the lease
expired. The court defined “abandonment” as the voluntary relinquishment of the
apartment with the intent of terminating possession, and without vesting owner-
ship in any other person. Curtis v. Katz, supra at 363. See also, Preen v. LeRuth,
430 So.2d 825 (La. App. 5 Cir. 1983). Where a tenant gives the landlord notice
of his intention to terminate the lease, but leaves the premises prior to the termi-
nation, and fails to pay rent for the remainder of the lease period, the tenant is
not entitled to the return of his security deposit. Borne v. Wilander, 509 So.2d 572
(La. App. 3 Cir. 1987).
What if a tenant places a deposit, but does not move in? In Barnes v. Smith,
2007 WL 142920 (La. App. 2 Cir. 2007), the landlord testified that she had a policy
of retaining half the deposit if tenants changed their minds and did not move in.
The tenant disputed any discussion of this policy. The court treated the case as a
R.S. 9: 3251 security deposit case and ordered the return of entire deposit upon
finding that the landlord failed to prove any damages when the tenants placed
their deposit on Saturday, changed their minds on Monday, and the apartment
was not available to anyone until Friday.
258
Cf., Bradwell v. Carter, 299 So. 2d 853 (La. App. 1 Cir. 1974) (waiver of time requirement for notice); Cantelli v. Tonti ,
297 So.2d 766, 768 (La. App. 4 Cir. 1974) (midterm cancellation of lease); Audrey Apartments v. Kornegay,. 255 So.2d
792, 793 (La. App. 4 Cir. 1972); Calix v. Whitson, 306 So.2d 62, 64 (La. App. 4 Cir. 1974) (subsequent oral agreement
to terminate at any time upon notice and payment of pro rata rent); see also La. Civ. Code arts. 1983, 2045-46.

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10.3.2.3 Rent Due

If the tenant did not vacate by the lease expiration date, the landlord will
claim an additional month’s rent as an offset on the theory that the lease has
reconducted for one month. Ball v. Fellom, 406 So.2d 781 (La. App. 4 Cir. 1981).
The landlord would have the burden of proving reconduction in this situation.
Talambas v. Louisiana State Bd. of Education, 401 So.2d 1051 (La. App. 3 Cir. 1981).
Occupancy of the apartment for one week or less after the expiration of the lease
would not constitute reconduction.259 A tenant’s continued occupancy after lease
termination would presumably entitle the landlord to the fair market rental value
of the actual holdover period under an unjust enrichment theory.
The landlord should not be able to claim rent for the period after a tenant
vacates the apartment pursuant to an eviction notice or after the issuance of a
notice to vacate. Sciacca v. Ives, 952 So.2d 762 (La. App. 4 Cir. 2007); McGrew v.
Milford, 255 So.2d 619 (La. App. 4 Cir. 1971). Landlords also claim an additional
month’s rent if the tenant does not return the keys prior to the lease expiration
date. See. e.g., Simkin v. Vinci, 215 So.2d 404 (La. App. 4 Cir. 1968).

10.3.2.4 Damages to Premises

A landlord may retain the portion of the security deposit which is reason-
ably necessary to remedy unreasonable wear to the premises. La. R. S. 9:3251(A);
see also La. Civ. Code art. 2683(3).260 The tenant is not responsible for reasonable
wear, pre-existing damage, damage that was not his fault, or repairs that are the
landlord’s responsibility. See generally, Provosty v. Guss, 350 So. 2d 1239 (La.
App. 4 Cir. 1977) (tenant not liable for certain cleaning, replastering and painting,
a broken cabinet drawer, grease spots on the carpet, and dents in the threshold
of the apartment); Lugo v. Vest, 336 So.2d 972 (La. App. 4 Cir. 1976)(tenant not
liable for replacement of a few light bulbs or the patching of a couple of small
holes in the screens). “Reasonable wear and tear” is a factual determination for
the trial court. Provosty v. Guss, supra; Lugo v. Vest, supra.
A landlord’s defense that a carpet had to be replaced due to damage from the
tenant’s smoking was rejected based on the tenant’s evidence that the smoke dam-
age could be repaired for $50. The court ordered the deposit, minus $50, refunded
to the tenant. Vinson v. Henley, 864 So.2d 894 (La. App. 2 Cir. 2004).
The doctrine of res ipsa loquitur cannot be used to prove that the damage
was caused by the tenant’s negligence. Calix v. Whitson, 306 So.2d 62 (La. App.
4 Cir. 1977). Once the landlord has established proof of damage, the tenant has
the burden of showing that the damages occurred prior to the lease’s commence-
ment or occurred without his fault during the lease. Daigle v. Melancon, 442 So.2d
657 (La. App. 1 Cir. 1983). The burden then shifts back to the landlord to show
that the damage was caused by the fault of the tenant.261
259
Ball v. Fellom, 406 So.2d 781 (La. App. 4 Cir. 1981); Misse v. Dronet, 493 So.2d 271 (La. App. 3 Cir. 1986); Baronne
Street Ltd. v. Pisano, 526 So. 2d 345 (La. App. 4 Cir. 1988).
260
The inventory rule in prior Civil Code article 2720 (Rev. 1984) has been deleted in the 2004 revisions to Civil Code
articles on lease. The new Code articles that are relevant to rent deposits are articles 2683 and 2692. They eliminate
any reference to inventory and presumption of receipt of premises in good condition.
261
Perroncel v. Judge Roy Bean’s Saloon, Inc., 405 So.2d 626 (La. App. 3 Cir. 1981), rev’d on other grounds 410 So.2d 745
(La. 1982) (statement of burden of proof specifically upheld by Supreme Court); cf., Speirer v. McIntosh, 342 So.2d 238
(La. App. 4 Cir. 1977); Diaz v. Edward Levy Metals, Inc., 384 So.2d 581 (La. App. 4 Cir. 1980) (there must be a showing
of some fault on tenant’s part).

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10.3.3 Adequacy of Landlord’s Itemization

La. R. S. 9:3251 requires that the landlord provide a written itemization
which includes (1) an accounting for the retained proceeds and (2) a statement of
reasons.262 An oral explanation or itemization will not suffice absent exceptional
circumstances such as “bad faith” litigation.263 If the landlord’s itemization is
found to lack specificity, there will be a “willful failure” under La. R.S. 9:3252,
and penalties will be appropriate.264 An adequate itemization must include a cat-
egorical specification which reasonably apprises the tenant of the nature of the
elements of wear and tear, separately lists each aspect of wear and tear, and
relates the damage to “unreasonable wear”.265
The landlord’s written itemization must be sent to the tenant or his duly author-
ized agent. Altazin v. Pirello, 391 So.2d 1267 (La. App. 1 Cir. 1980). Noncompliance
with the written itemization requirement subjects the landlord to the additional
$200 penalty and fees. Nwokolo v. Torrey, 726 So.2d 1055 (La. App. 2 Cir. 1999).
A bona fide dispute as to the security deposit, or lease obligations, will not
exculpate the landlord from strict compliance with the written itemization require-
ment.266 Specious or unjustified reasons for retaining a deposit, regardless of their
specificity, can never satisfy La. R. S. 9:3251. Altazin v. Pirello, 391 So.2d 1267
(La. App. 1 Cir. 1980); Calix v. Whitson, 306 So. 2d 62 (La. App. 4 Cir. 1974).
10.3.4 Amount of Tenant’s Recovery
A tenant is entitled to his security deposit, and an additional statutory
penalty of $200 or actual damages and attorney’s fees if the landlord willfully fails
to comply with the Rent Deposit Return Act. La. R. S. 9:3252.267
The 1st and 4th Circuits have held that failure to make a written demand for
refund bars the tenant from recovering the $200 statutory penalty and attorney’s
fees.268 This holding is unsupported by the statutory language of La. R. Stat.
9:3252 and contravenes prior jurisprudence. Properly construed, La. R. S. 9:3252
only creates a conclusive presumption that the landlord’s failure to remit after a
written demand for a refund, constitutes the “willful failure” which triggers the
statutory penalty. La. R. S. 9:3252 conditions the statutory penalty on willful
non-compliance with La. R. S. 9:3251 (duty to return deposit and provide written
itemization). It does not limit the statutory penalty to cases where the tenant has
made a written demand for a refund.269 Nonetheless, it would behoove the tenant
to make a written demand for refund in order to ensure the landlord’s liability for
the $200 statutory penalty.
262
O’Brien v. Becker, 332 So.2d 563 (La. App. 4 Cir. 1976).
263
Ball v. Fellom, 406 So.2d 781 (La. App. 4 Cir. 1981); Flynn v. Central Realty of Louisiana, Inc., 338 So.2d 774 (La. App.
4 Cir. 1976), writ denied 341 So.2d 417 (La. 1977).
264
See, e.g. Woodery v. Smith, 527 So.2d 389, writ denied 532 So.2d 178 (La. App. 4 Cir. 1988); O’Brien v. Becker, supra
(no itemization, and the receipts, primarily for painting materials, could not be considered “unusual wear” after four
years of occupancy); Provosty v. Guss, 350 So. 2d 1239 (La. App. 4 Cir. 1977) (sufficient specificity); Garb v. Clayton-
Kent Builders, 307 So.2d 813 (La. App. 1 Cir. 1975) (landlord’s written statement that he was retaining a tenant’s $50
deposit to “clean and vacuum the apartment” was held to be sufficient).
265
See Woodery v. Smith, supra; Note, 37 La. L. Rev. 458 (1977); but see, Garb v. Clayton-Kent Builders, supra at 815.
266
Trapani v. Morgan , 426 So.2d 285, 291 (La. App. 4 Cir. 1983), writ denied 433 So.2d 165 (La. 1983); Ball v. Fellom
406 So.2d 781, 783 (La. App. 4 Cir. 1981); Altazin v. Pirello, 391 So.2d 1267 (La. App. 1 Cir. 1980).
267
See e.g., Cantelli v. Tonti, 297 So.2d 766, 769 (La. App. 4 Cir. 1974); Nwokolo v. Torrey, 726 So.2d 1055 (La. App. 1999).
268
Maxie v. Juban Lumber Company 444 So. 2d 181 (La. App. 1 Cir. 1983); Trapani v. Morgan, 426 So.2d 285 (La. App. 4
Cir. 1983), writ denied 433 So.2d 165 (La. 1983).
269
Cf. Ball v. Fellom, 406 So.2d 781, 783 (La. App. 4 Cir. 1981); Altazin v. Pirello, 391 So. 2d 1267 (La. App. 1 Cir.
1980); Curtis v. Katz, 349 So.2d 362 (La. App. 4 Cir. 1977), writ denied 351 So.2d 179 (La. 1977); Provosty v. Guss, 350
So.2d 1239 (La. App. 4 Cir. 1977).

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The landlord can be liable for the $200 statutory penalty if his retention of
any portion of the security deposit is unjustified. See, e.g., Lugo v. Vest, 336 So.2d
972 (La. App. 1 Cir. 1976) ($72.30 of $100 deposit withheld for replacement of a
few light bulbs and for patching a couple of small holes in the screen). However,
in Provosty v. Guss, supra, a landlord who properly retained less than one-third of
the security deposit escaped the statutory penalty imposed by La. R. S. 9:3252.
As previously indicated, a landlord who does not provide a timely itemization can
be liable for the statutory penalty even if he had a valid dispute as to the amount
that is returnable. See, e.g., Altazin v. Pirello, 391 So.2d 1267 (La. App. 1 Cir.
1980).

10.4 MISCELLANEOUS ISSUES

10.4.1 Venue
A security deposit lawsuit may be filed in the parish in which the landlord
is domiciled or in the parish where the property is situated. La. R. S. 9:3252 (B).
10.4.2 Prescription
Security deposit claims are not governed by any specific prescription statute.
Presumably, they are only limited by the 10 year prescriptive period established
for claims based on contracts or a personal action. See La. Civ. Code art. 3499.
10.4.3 Burden of Proof
A security deposit is the tenant’s property. Matter of Universal Sec. and Pro-
tection Service, Inc., 223 B.R. 88, 93 (E.D. La. 1998). cf. La. Civ. Code art. 2926.
Therefore, the burden of proof is on the landlord to show cause for the retention
of the tenant’s deposit (property).
10.4.4 Security deposit claims against bankrupt landlord
In a Chapter 13 bankruptcy, the tenant’s security deposit claim should be a
priority claim. Guarracino v. Hoffman, 246 B.R. 130 (D. Mass. 2000). Generally,
all priority claims must be paid in a Chapter 13 bankruptcy. A tenant should con-
sider filing an objection to a Chapter 13 plan if it proposes to pay him less than
100% of his claim.
In a Chapter 7 bankruptcy, the tenant should argue that the security deposit
is not part of the landlord’s bankruptcy estate and that the deposit belongs to the
tenant. Matter of Universal Sec. and Protection Service, Inc., 223 B.R. 88, 93 (Bankr.
E.D. La. 1998). If the security deposit no longer exists, the tenant should file a
proof of claim. This may be filed without the payment of any court costs. A chapter
7 bankruptcy will discharge the debt. However, it is possible that a tenant’s judg-
ment lien, if any, will survive the bankruptcy.

11. INTERNET RESEARCH

The primary legal services websites for housing advocates are:
Louisiana ProBono.net www.probono.net/la
Clearinghouse Review www.povertylaw.org
National Housing Law Project www.nhlp.org
National Consumer Law Center www.consumerlaw.org

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Helpful government websites for housing advocates include:

HUD Laws www.hudclips.org
HUD www.hud.gov
USDA Rural Housing www.rurdev.usda.gov
Fair housing cases and information can be found at:
National Fair Housing Advocate www.fairhousing.com

12. OTHER TREATISES OR PUBLICATIONS

G. Armstrong, Louisiana Landlord and Tenant Law
V. Palmer, The Civil Law of Lease in Louisiana
R. Schoshinski, American Law of Landlord and Tenant
J. Relman, Housing Discrimination Practice Manual
R. Schwemm, Housing Discrimination: Law and Litigation
National Housing Law Project, HUD Housing Programs, (4d ed.2012)
National Housing Law Project, Housing Law Bulletin,
back issues on-line at nhlp.org

13. SAMPLE EVICTION ANSWER

_____________________ COURT FOR THE PARISH OF _________________
STATE OF LOUISIANA

CASE NO. ____________________

______________________________________________
Petitioner (or Plaintiff)

vs.

______________________________________________
Defendant

SWORN ANSWER TO RULE FOR POSSESSION

1. My name is ___________________________. I am a defendant in this Rule.
2. I admit my domicile and deny all other allegations in the Rule for Possession.
3. Petitioner (or Plaintiff) is not entitled to possession of my apartment or home
for the reasons checked below:
Tenancy Not Properly Terminated and/or Rule Not Properly Brought
4.  No Notice to Vacate was sent to me.
5.  The Notice to Vacate was untimely. A longer notice period is required to
end my lease.

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6.  I am a bona fide tenant, whose lease may not be terminated by Petitioner

under the Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220 note,
except on 90 days advance written notice or the duration of my lease,


whichever is longer.
7. The Notice to Vacate was not served in the manner required by the lease


or law.
8. The Notice to Vacate and/or Rule for Possession are too vague for me to
respond to. They do not state sufficient grounds to terminate the lease.
La. Code Civ. Proc. art. 4731; Louisiana State Museum v. Mayberry, 348


So.2d 1274 (La. App. 4 Cir. 1977).
9. The Rule for Possession and the Notice to Vacate state inconsistent rea-


sons for eviction.
10. The Rule for Possession was filed before the Notice to Vacate ran out.
Thus, the Rule for Possession must be dismissed. La. Code Civ. Proc. art.
4701, 4731; Lichtentag v. Burns, 258 So.2d 211 (La. App. 4 Cir. 1972);


Owens v. Munson, 2009 WL 3454307 (La. App. 1 Cir. 2009).
11. The Rule for Possession was not served on me in the way the law
requires. La. Code Civ. Proc. art. 4732. [Note: Rules for Possession on
the Eastbank of Orleans Parish must be served by mail in addition to tack-
ing service. Sylvester v. Detweiler, U.S.D.C. No. 84-3399 (E.D. La. 1985)


(class action judgment)].
12. I am living temporarily outside of Louisiana due to a recent natural dis-
aster. I have not abandoned my apartment. The Rule for Possession must
be served on me through the Long-Arm Statute, La. R.S. 13: 3204. Also,
no trial can be held on the Rule for Possession until 30 days after service


of the Rule. La. R.S. 13: 3205. Therefore, the Rule must be re-set for trial.
13. My lease requires a Notice to Cure before an eviction can be brought. The


landlord did not give a Notice to Cure before filing this Rule for Possession.
14. The landlord accepted or held rent from me after the Notice to Vacate.


Adams v. Dividend, Inc., 447 So.2d 80, 83 (La. App. 4 Cir. 1984).
15. I have a lease that has not ended. I cannot be evicted for “no cause” before


the end of my lease. La. Civil Code art. 1983, 2678, 2728.
16. The person who filed the Rule for Possession is not my landlord or the


owner and cannot legally file this Rule.
17. I am a co-owner of the premises and cannot be evicted by this Court or


the plaintiff.
18. I own a usufruct over the property in question. The Petitioner may not
seek a termination of my usufruct by a Rule for Possession or summary


proceeding.
19. I am a possessor or usufructuary of the property in question. I have made
the following improvements or paid the following expenses for this prop-
erty: ______________________________________________________.
Under the law, I have the right to retain possession of this property until
I am fully reimbursed by the Petitioner for my improvements and/or
expenses. See Civil Code art. 592 (possessor) or Civil Code art. 627
(usufructuaries).

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20.  My lease has a mediation or arbitration clause and this clause has not
been complied with prior to the filing of this eviction lawsuit. Therefore,
the suit is premature and must be dismissed.
Eviction for Non-Payment of Rent Should Not Be Granted in My Case
21.  I paid the rent owed or offered to pay the rent on time or within the grace
period or custom for payment of rent. Cantrell v. Collins, 984 So.2d 738,
740-41 (La. App. 1 Cir. 2008); Adams v. Dividend, Inc., 447 So.2d 80, 83

22.  The rent claimed is not owed because my apartment was partially
(La. App. 4 Cir. 1984).

destroyed or substantially impaired by a recent natural disaster or fire.

23.  I do not owe the rent because my landlord is making repairs to my apart-
La. Civil Code art. 2715.

ment which entitle me to a reduction or abatement of rent. La. Civil Code

24.  The rent claimed is not owed because I properly or in good faith made
art. 2693.

repairs to the apartment. These repairs were made under the tenant’s

25.  The rent claimed is not owed because the landlord does not have the right
“repair and deduct” remedy provided by La. Civil Code art. 2694.

to increase the rent:

1. My lease does not allow him to increase the rent.
2. My landlord’s increase of the rent was untimely and therefore inef-
fective for the period claimed.
3. The increase violates the Louisiana price gouging statute, La. R.S.

26.  My lease states that I must be given a notice to cure or correct an

29: 732 et seq.

untimely payment of rent. My landlord did not give me this notice.

27.  This Court has equitable discretion not to terminate my lease for non-pay-
ment of rent. My alleged non-payment of rent was not willful or in bad
faith. I am willing to make the landlord whole by paying the landlord the
rent owed as determined by the courts. Under the equities and circum-
stances of my case, this Court should not terminate my lease for the non-
payment of rent alleged by my landlord. [See e.g, Porter v. Miller, 782 So.2d
1123 (La. App. 3 Cir. 2001); La. Civil Code art. 2013].
Special Rent Liability Defenses for Public and Subsidized Housing

28.  My apartment is either:

Tenants Only

 public housing, or
 subsidized housing,
and termination of tenancy is governed by federal laws for these pro-
grams.
29.  The housing authority is responsible for its share of the rent. I am only
responsible for my share of the rent. I cannot be evicted for its failure to
pay the rent when I have paid or offered to pay my share of the rent. 24
CFR § 982.310 (b).

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30.  The housing authority stopped payments of rent to the landlord because
repairs were not made. In this case, the landlord cannot evict for a prob-


lem that his negligence created.
31. The landlord has charged me rent in excess of the amount allowed by the


housing authority/agency, federal law or my lease.
32. I am a public housing tenant. The housing authority has failed to repair
serious defects in my apartment within the required time after my notice
of the defects to the housing authority. Therefore, my rent is abated or
extinguished under federal law. [Housing Authority of New Orleans v. Wil-
son, 503 So.2d 565 (La. App. 4 Cir. 1987)].
Other Defenses for Public and Subsidized Tenants Only

a.  The landlord did not terminate my tenancy as required by the lease,
33. I am a tenant in public or subsidized housing and:

b.  I am a Section 8 tenant and the landlord did not provide a copy of

program rules or federal law.

the Notice to Vacate to the public housing agency. 24 CFR §

c.  The landlord does not have good cause to evict me or refuse to renew
982.310(e).

d.  The landlord did not give me my right to a grievance hearing or

my lease as required by my lease, program rules or federal law.

e.  I am a public housing tenant and the grievance decision on my pro-

conference as required by the lease, program rules or federal law.

f.  I am a public housing tenant and the housing authority failed to

posed eviction was in my favor. Thus, my eviction is barred.

respond to my discovery requests as required by 42 U.S.C. §

1437d(e)(7) and 24 C.F.R. §966.4 (a). For this reason, the housing

g.  Domestic violence was committed against me and federal law, 42

authority is barred from proceeding with this eviction at this time.

U.S.C. § 3604(b), 42 U.S.C. § 1437f (c)(9), or 42 U.S.C. §

1437f(o)(7)(D)(i). prohibits my eviction for domestic violence com-
mitted against me.
Defenses to Alleged Lease Violations–All Tenants
34.  I did not commit the lease violations claimed by the landlord. The landlord
has failed to prove that I did things that were serious enough to end my


lease.
35. Evictions are subject to judicial control and may be denied even if a lease
violation is proved. [Carriere v. Bank of Louisiana, 702 So.2d 648 (La.
1996); Ergon v. Allen, 593 So.2d 438 (La. App. 2 Cir. 1992)]. Under the
circumstances of my case, this Court should exercise its equitable discre-
tion not to terminate my lease.
Other Defenses
36.  The landlord may only evict for total destruction of the premises by a nat-
ural disaster or fire. My apartment is only partially destroyed. Thus, the
landlord may not evict me for this reason. La. Civil Code art. 2714-15.

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37.  This eviction is in violation of a disaster-related Governor’s Executive

Order or rule issued by the Supreme Court under La. R.S. 29: 721 et seq.
in that minimum legal delays for evictions were suspended by the Exec-


utive Order or Supreme Court rule.
38. I filed for bankruptcy on _______________________. A bankruptcy stay
order prohibits my landlord from seeking my eviction at this time. A copy


of the bankruptcy order is attached.
39. I have a bond for deed for the premises. I have not been given my 45 day
notice to cure. Thus, this eviction is barred. La. R.S. 9: 2945; Thomas v.


King, 813 So.2d 1127 (La. App. 2 Cir. 2002).
40. I have a bond for deed for the premises. An agreement between the parties
requires that termination of the bond for deed or eviction be resolved by


arbitration. Therefore, this judicial eviction must be dismissed or stayed.
41. The landlord/owner cannot sue me for rent or damages in this Rule for


Possession.
42. This eviction is barred by res judicata and should be dismissed with prej-
udice. The Petitioner sued me for eviction in a prior lawsuit based on the
same facts and claims. A copy of the judgment in the prior lawsuit dis-
missing or denying the eviction is attached. I further request that the
court take judicial notice of the prior judgment and lawsuit in its records


and admit a copy of the judgment into evidence herein.
43. In addition to any of the defenses checked above, my landlord should be
denied possession of my apartment for the following reasons (state the
reasons below):
Relief Requested
Defendant requests that this Court:
1. Dismiss the Rule for Possession at Petitioner’s costs, and
2. Grant all other relief that is just and proper.

_______________________________________
Defendant or Defendant’s Attorney
Address:

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 LANDLORD-TENANT LAW

VERIFICATION
STATE OF LOUISIANA
PARISH OF ________________________

BEFORE ME, the undersigned Notary, personally came and appeared the
Defendant, _____________________________, who after being duly sworn, did
say that s/he has read the foregoing Answer (or had it read to her/him) and all of
the allegations of fact therein are true and correct to the best of her/his informa-
tion and belief.

_______________________________________
Defendant’s Signature Only

Sworn to and subscribed before me this ______

day of ___________________________, 20___.

_______________________________________
NOTARY PUBLIC
No.
My commission is for life.

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LANDLORD-TENANT LAW

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