Evicitions

Landlord and Tenant Notes

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

General Landlord/Tenant Law Basics

A lease is a contract where a lessor (Landlord) gives the right to a lessee (Tenant) to use and enjoy a thing (typically immovable property) in exchange for something of value.  The most common case is for a Landlord to rent commercial or residential property to a Tenant.  The contract of lease can be written or verbal, though it would be wise for both parties to have the terms and conditions reduced to writing to avoid confusion.  Common elements of a lease are an identification of the thing rented (residential address), the amount of rent to be paid (usually on a monthly basis) and the term of the lease (usually 6 months or a year.)  Landlords usually ask for a security deposit, too.

The Landlord has the obligation to deliver or make available the property to the Tenant, to maintain the property in a condition suitable for its intended use, and to protect the Tenant’s peaceful possession of the property.  That last requirement doesn’t mean a Landlord is bound to provide security for Tenants – it means the Landlord is to keep the title to the property clear so that a third party can’t force the Tenant to move.   Also, Landlords are required to make repairs except those for which the Tenant is responsible.  

The Tenant is obligated to pay the rent in accordance with the terms of the lease contract, to use the property prudently and for the purposes intended, and to return the property in the condition it was in originally, less reasonable wear and tear.  Part of using the property prudently is the requirement that Tenants repair damage to property caused by his fault or his guests or occupants to the extent it exceeds normal use.  

The failure of either the Landlord or the Tenant to fulfill his obligations entitles the other party to ask the court to dissolve the lease and assess damages.  However, the dissolution of leases is not favored by the law.  Normally, while Tenant’s failure to pay rent is an “active” breach of the lease entitles Landlord to seek dissolution, that right is subject to judicial control according to the circumstances.  If a Landlord accepts rent “late enough and long enough,” the Landlord will not be permitted to cancel the lease unless it gives prior notice that it intends to enforce the payment provisions in a strict manner.  This rule doesn’t hold true where the Landlord has made frequent and unsuccessful demands for the rent or where acceptance of tardy payments is because of unwilling and forced indulgence on the Landlord’s part.  There is no “self-help” allowed the Landlord (locking the doors, etc.) except in cases where the Tenant has abandoned the property.  Since abandonment is a question of fact, Landlords should proceed cautiously in the event they believe premises have been abandoned.

Landlords and Tenants are strongly encouraged to know your lease terms and conditions.  The lease is the “law between the parties” except in some items where general Civil Code Articles may apply.  Sometimes rental property is substantially impaired due to fire, flood, hurricanes, etc.  Generally, the lease terminates automatically if the property becomes unfit for the purposes intended through no fault of the Landlord or Tenant.

Do not call the Court and ask for legal advice or opinions as to what a lease means, or ask the court to comment on your “situation.”    

Remedies in the event of a breach of contract – Failure to pay rent

1.  When there has been a breach, the Landlord has several remedies, each of which is mutually exclusive:

A.  File a Rule for Eviction (also called Petition of Eviction) to gain possession of the premises.  The Rule for Eviction is a summary in nature, and usually, the hearing is held quickly.  The Landlord may also file a separate suit for any past due to rent and the rent that will accrue up through the point the Tenant has possessed the unit.  This is an ordinary action, must be served and answered, and takes longer to resolve.  

B.  Sue for accrued rentals and accelerate future rentals.  This means the Tenant maintains possession of the property, and the Landlord may enforce the judgment as to any other money judgment, ie, garnishments, seizures, etc.  However, the Tenant maintains possession of the unit.

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

2.  By and large, most residential rentals involve option A, without a separate suit for recovery of accrued rentals.  The Landlord must give a 5 day “Notice to Vacate”.  That is five business days, exclusive of holidays.  At the end of that period, if the tenant is still in possession, the Landlord may file a Petition of Eviction.  The Notice to Vacate requirement may be waived in writing, and that is usually the case in most Louisiana leases.  However, the waiver should be for the full five days - not some type of clause setting the time limit to 3 days, or 2 days, etc.  If Landlord gives Tenant some kind of notice that says “notice to vacate,” then Landlord has “waived the waiver” and is bound to wait the 5 days before a rule for eviction can be instituted.

3.  Acceptance of any rent from the Tenant after the Notice to Vacate is given vitiates the effect of the Notice to Vacate and maintains the Tenant in possession. (This doesn’t apply where the Notice to Vacate is given on grounds other than non-payment of rent.)

4.  Because, as mentioned above, the law disfavors cancellation, here are some practical examples of payment issues and ways of handling them:

A.  Rent is $500.  Tenant tenders $300 on the 5th of the month.  The landlord can accept the partial payment, and then proceed with a Petition for Possession because the balance of rent was not paid timely.  Meaning, acceptance of partial payments does not vitiate the Landlord’s ability to seek cancellation of lease where balance is not paid.

B.  No rent paid at all.  The rule for Eviction filed on 15th, Hearing set on 21st.  Tenant contacts Landlord or comes to the hearing with all money, including late fees and court costs.  The landlord may accept the money, and Rule is dismissed.

C.  No rent paid at all.  Rule filed on 15th, Hearing set on 21st.  Tenant is able to offer much of the rent but is short $150.  The landlord should not accept the money (unless he wants to dismiss its Rule) and should tell Tenant to appear in court.  The Court can issue a Stipulated or Consent Judgment on the day of a hearing in which the terms and conditions of payment are set forth in writing.  For example, the judgment  might say:

“Defendant agrees to pay $400 by 5:00 pm 10/21/06; otherwise, Writ of Possession is enforceable.  Further, the Defendant to pay $150 by 5:00 pm 10/24/06; otherwise, Writ of Possession is enforceable.”

By this agreement, if Tenant does what he commits to do, he remains in possession.  If not, then the Landlord can evict him.

D.  A petition is filed on the 22nd, Hearing set on 28th.  Now our facts are later in the month.  At this point, if the Tenant is willing to pay the rent, late fee and court costs as in the examples above, it will not be held against the Landlord for still exercising the option of settling with the Tenant.  

E.  No rent paid at all.  Rule filed on 15th, Hearing set on 21st.  A couple of days before the hearing, the Tenant places some of the rent owed in Landlord’s dropbox.  The landlord is not willing to accept Tenant’s offer of payment.  A reasonable effort should be made by the Landlord to notify Tenant that partial payment is not acceptable.  If possible, give the payment back to Tenant, preferably with witnesses.  Worst case, bring the payment with you to court and explain the attempted payment to the court.

Landlords have asked: “Do I have to take accept their money?”  The answer is: “Sometimes yes, sometimes no.”   There is no real economic reason not to accept rent, late fees and court costs from Tenant, especially when couched in terms of a Consent Judgment.  Because the law disfavors dissolving the lease, and because it is subject to judicial control “according to the circumstances,” there should be no ironclad rule against accepting rent, late fees, and court costs, regardless of when it is offered.  Depending on the facts and circumstances, the court may order a short payment plan.  Landlords are sometimes laboring under the mistaken impression that because they’ve paid court costs, they feel they “deserve” or are entitled to a judgment of eviction.  Remember, you are paying to be heard and to have a fair hearing.  There may be some extenuating circumstances that merit giving the tenant additional time to pay what is owed.          

5.  Accepting any money after the Judgment is rendered renders the Judgment null (unless payment has been in accordance with some form of Consent Judgment referenced above.)  Accepting money after judgment has been issued does not create a pattern of accepting money late. 

Remedies for breach of contract – other breaches.

There are other ways a Tenant might breach his lease obligations.  For example, a tenant might try to run a business out of the residential property; disturb other tenants; threaten management or other tenants; commit crimes on-premises; remain in the rental property after the lease term expires.  The basic procedure is the same in that Landlord will need to give proper notice (if there is no waiver of the 5 day Notice requirement) and file a Rule for Eviction.  Of course, either party may elect to simply terminate a lease that is in a month to month term by giving proper and timely notice.  The receipt of government funds is not a defense to eviction actions.

Defenses and Tenant’s Rights

The most common complaint of Tenants is the failure of the Landlord to make repairs.  Tenants should understand the repair provisions of their lease agreements.  Typically, written leases provide the Landlord will make repairs to roofs, plumbing, electrical and HVAC systems.  The proper way to proceed is to give the Landlord written notice of what needs to be repaired, followed by a reasonable time to make the repair.  If the landlord fails to make a needed repair, Tenant can make the repair at his expense and withhold that amount from next month’s rent. Just as Tenants may not hold rent hostage for repairs, the Landlord can not hold failure to pay rent as an excuse not to make needed repairs.  The court will determine whether a repair was one the Landlord was bound to make or whether the damage was occasioned by the fault of the Tenant.  If the court finds the Landlord has unreasonably failed to make needed repairs, the court will consider some type of set-off in favor of the Tenant for Landlord’s failure to make the needed repairs.

The judgment of Eviction, Writ of Possession, and Appeal

If the court rules in favor of the Landlord, and no stipulated or consent agreements are made, then the Tenant will have 24 hours from the time/date of judgment to deliver the property back to the Landlord.  If the property is not delivered, the Landlord may request a Writ of Possession be issued and executed by the court.  This usually involves the appropriate parish constable to clear the property and return possession of that property to the Landlord.  In order to preserve the opportunity for appeal, Tenants should file an Answer to the Rule for Eviction.  The Answer should be in writing, under oath, and state affirmative defenses.  Tenants should consider contacting legal counsel in connection with an eviction proceeding.  

Other Procedures

A Landlord may file suit for past due rent, and couple it with a Writ of Seizure to enforce Landlord’s privilege.  This is a separate suit and proceeds more slowly than the Petition For Eviction.  All property seized must be stored at cost of Landlord until final judgment and Constable Sale.  Very often, when a Tenant can not afford to pay rent, he does not have items that are exempt from a seizure of a sufficient value to merit filing this type of action.  However, this option should be considered if the circumstances justify its use.

If premises are abandoned, the Landlord may re-take possession and re-let the property.  Extreme caution is recommended.  Some Landlords are conservative and go through the eviction procedures where the value of property remaining exceeds $100.  The court can not “recommend” what the Landlord should do under a given set of circumstances.  

Security Deposit

The security deposit is used as an offset against whatever the Tenant may owe the Landlord in the event of a breach of contract.  Although most written leases contain language that states that Tenant “forfeits” the security deposit if the Tenant fails to complete the term of the lease or abandons the lease, in reality, it is to be used as an offset against whatever amounts are owed to Owner.  Security Deposits are addressed in LSA-R.S. 9:3251 and it requires Landlord to returned to a Tenant within one month after the lease terminates, except a Landlord may retain any or all of the security deposit to remedy a default of the Tenant, such as the Tenant’s failure to return the property in its original condition less reasonable wear and tear.   Tenants are to provide Landlord with a forwarding address, and Landlords are to send an itemized statement of any amounts withheld from the deposit.   If a Tenant believes the Landlord has wrongfully withheld any portion of the deposit, he may sue Landlord and request attorney fees and costs.