The landlord’s duties to the tenant are to make necessary repairs, maintain the rental in a condition suitable for the intended purpose (i.e., habitation), and warrant the tenant’s peaceful possession.1  In some circumstances, a landlord’s failure to comply with these legal duties presents a defense to eviction and possibly a separate suit for damages.

• 1La. C.C. arts. 2682, 2684–2685, 2691–2702.

To avoid breaching the lease, a tenant must pay the rent in the amount and on the schedule agreed to in the lease, use the rental in accordance with the intended purpose (i.e., habitation), and return the unit in the same condition as at the start of the lease minus normal wear and tear.1

• 1La. C.C. arts. 2683, 2686–2690, 2703–2704.

Private landlords may set their own tenant screening and admissions requirements, provided that those requirements do not violate the Fair Housing Act.1  An increasing number of landlords and housing providers rely on reports generated by tenant screening companies to screen prospective tenants’ rental histories, credit reports, criminal backgrounds, and records of civil cases where the applicant is a party, such as eviction or debt collection cases.

• 1On the protections of the Fair Housing Act, see Section 13.

When a housing provider relies on an inaccurate tenant screening report to refuse to accept an applicant as a tenant, the applicant can take steps to dispute that report under the Fair Credit Reporting Act (FCRA).1  Housing providers must comply with FCRA’s adverse action requirements by furnishing the name, address, and telephone number of the tenant screening or consumer reporting agency to the applicant.2  Within 60 days of the denial of housing, applicants have the right to request a free copy of the screening or consumer file directly from the tenant screening company.3  Once the applicant has obtained the file from the tenant screening company, they may write a dispute letter asking the company to reinvestigate or delete inaccurate information. Upon receiving the dispute, the tenant screening company has 30 days to conduct a reinvestigation (and more time if the information was purchased from another consumer reporting agency).4  Once the applicant receives written notice of the reinvestigation’s outcome, complete with the updated file, the applicant may then request that the screening company notify the housing provider of any updates.5

Due to the time it takes to use the FRCA dispute process to correct inaccurate screening information, tenants will rarely succeed in reversing a landlord’s decision to refuse to rent the unit at issue. However, disputing inaccurate information may prevent the prospective tenant from being denied leases in the future.

• 115 U.S.C. § 1681, et seq.
• 215 U.S.C. § 1681m.
• 315 U.S.C. § 1681j(b).
• 415 U.S.C. § 1681i(a), (f).
• 515 U.S.C. § 1681i(a)(6), (l).

Many housing providers will deny an applicant if the tenant screening report shows a debt owed to a previous landlord. Under Louisiana law, rent and debts on an open account have a 3-year prescriptive period.1  Landlords frequently report inaccurate debts, often containing “junk” fees unsupported by the lease or the law, that can be challenged under the FCRA.

If the debt is still owed, a tenant’s only remedy is to pay the balance. If the debt has been sent to collections, it is often possible to negotiate a lower balance or payment plan directly with the collections agency. Collections agencies are especially amenable to negotiating lower debt balances during tax season.

• 1La. C.C. art. 3494.

The Fair Housing Act prohibits discrimination in the rental of housing based on race, color, religion, sex, disability, familial status or national origin.1  Although tenants with a criminal record are not among the FHA’s protected classes, an admissions policy may be discriminatory and prohibited by the Act if it has a disparate impact on a protected class.2

In 2016, HUD’s Office of General Counsel issued guidance on the relationship between the use of criminal records and the FHA. The guidance argues that criminal history-based housing restrictions may disproportionately impact racial minority groups since these groups are convicted and incarcerated at higher rates than the general population due to discrimination in the criminal legal system.3  The guidance concludes that the FHA prohibits blanket housing restrictions based on a tenant’s criminal history. Instead, owners should conduct an individualized assessment considering the time, nature, and extent of any conduct and to factors that might indicate a reasonable probability of favorable future conduct.4  Because the guidance is based on the FHA, it is applicable to both private and federally-subsidized landlords. Courts have positively cited the HUD analysis to support a disparate impact claim.5

If a landlord covered by the FHA refuses to rent to an applicant due to the applicant’s criminal history, the applicant should request an individualized assessment in writing. That request should include an explanation of why the criminal charges have no bearing on the applicant’s current conduct as a tenant and any mitigating circumstances surrounding the charge.

• 142 U.S.C. § 3601, et seq. For additional discussion of the FHA, see Section 13.
• 2Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 576 U.S. 519 (2015).
• 3U.S. Dep’t of Hous. & Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (2016).
• 4Id.
• 5Conn. Fair Hous. Ctr. v. CoreLogic Rental Prop. Sols., LLC, 369 F. Supp. 3d 362 (D. Conn. 2019) (denying defendant’s motion to dismiss where the housing provider denied an applicant based on a single arrest record); Fortune Soc’y v. Sandcastle Towers, 388 F. Supp. 3d 145 (E.D.N.Y. 2019) (denying a defendant’s motion for summary judgment where housing provider banned admission to any individuals who had ever had a felony conviction).

Where an admissions denial is based on activity related to a disability or addiction (for example, a drug or behavioral-health related conviction), a landlord covered by the Fair Housing Act must consider a reasonable accommodation request for admission.1  Drug and alcohol addiction constitutes a disability under the Fair Housing Act so long as the individual is not currently using.2

Under Louisiana state law, a covered landlord may not deny an applicant admission based on activity directly related to domestic abuse or sexual assault.3  The applicant must provide requisite documentation and otherwise qualify to enter into the lease agreement.4

• 1For a more extensive discussion of reasonable accommodations under the FHA, see Section 13.5.2.
• 224 C.F.R. § 100.201(a)(2). The Fair Housing Act requires housing providers to take into consideration the rehabilitation of a person with a substance use disorder. United States v. S. Mgmt. Corp., 955 F.2d 914, 918 (4th Cir. 1992) (“Someone who as a medical matter will always have a craving for narcotics, but who has been able to control that craving for some (undefined) period of time, must not be denied access to housing on the basis of that craving and its attendant dangers.”).
• 3La. R.S. 9:3261.2(D)(1)(a). For a more complete discussion of LAVAWA, see Section 1.7.
• 4La. R.S. 9:3261.2(D)(1)(a).

In 2021, Louisiana passed limited and largely unenforceable protections for tenants who may have evictions, criminal convictions, or other adverse information on their records.1  Under current law, a lessor may not charge an application fee unless, prior to accepting payment, the lessor gives written notice of: (1) the amount of the fee; (2) whether the lessor considers credit scores, employment history, criminal history, or eviction records; and (3) the applicant’s right to share a statement of 200 words or less explaining that the applicant has experienced financial hardship due to a state or federally declared disaster.2  Tenants do not have a cause of action to enforce this law, but may be able to make a complaint to the Attorney General’s consumer protection division.3

• 1La. R.S. 9:3258.1.
• 2La. R.S. 9:3258.1(A).
• 3La. R.S. 9:3258.1(D).

If a lease has a fixed term, it automatically terminates by the arrival of the term.1  However, the lease may contain an option to extend the term or renew the lease; if the option is exercised, the lease continues subject to the provision of the option.2  If a lease with a fixed term terminates but the landlord does not issue a notice to vacate or make other objections and the tenant has remained in possession for the required period of time (typically a week), then the lease is reconducted.3  For most residential leases, the term of a reconducted lease is month to month.4

If the original lease did not have a fixed term or a lease with a fixed term has been reconducted, the lease term is month to month.5  Either party can terminate such a lease by written notice 10 days before the end of the month.6  However, if there was an original written lease, you should always check the notice requirement for nonrenewal because the terms of the original lease apply on a month-to-month basis and most written leases require 30 days’ notice.

• 1La. C.C. art. 2679.
• 2La. C.C. art. 2725.
• 3La. C.C. art. 2721.
• 4La. C.C. art. 2723.
• 5La. C.C. art. 2680.
• 6La. C.C. arts. 2727–2729.

There are two grounds for eviction: (1) “no cause”, i.e., the expiration of the lease; and (2) “for cause”, i.e., a violation of the lease, including nonpayment of rent. “No cause” evictions are evictions where the landlord wishes to take possession of the unit due to no fault of the tenant and most commonly involve 10-day terminations of month-to-month leases. In “for cause” evictions, the landlord is generally seeking possession of the unit due to some alleged contractual breach by the tenant.

The grounds for eviction must appear in the Rule for Possession and the Notice to Vacate, if there is one.1  Identifying the ground for eviction is important because some defenses apply to all evictions, while others are specific to the type of eviction.

• 1La. C.C. art. 4731(A); La. State Museum v. Mayberry, 348 So.2d 1274 (La. App. 4 Cir. 1977).

Generally, absent contrary agreement, a month-to-month tenant may terminate the lease by giving the landlord written notice 10 days prior to the end of the current rental month, unless the lease requires a longer notice period.1  At the end of a year-term lease, the required minimum notice period is 30 days.2  Tenants with fixed-term leases may only terminate the lease prior to the expiration of the term for reasons provided in the lease, the Civil Code, or other applicable laws.3

If a landlord fails to perform (i.e., fails to fulfill the obligations required by the Civil Code), a tenant may be able to terminate a lease extrajudicially in accordance with the rules applicable to contracts in general.4  These rules require that the tenant demand that the landlord fulfill the obligations under the lease within a reasonable time5  and that the tenant place the landlord in default, generally by written notice.6  Under limited circumstances a tenant may terminate a lease without notice to perform.7  Because unilateral dissolution of a contract is undertaken at the dissolving party’s own risk and because a lease cannot be dissolved for minor violations of the lease, a court may still side with a landlord who maintains that the requirements for extrajudicial dissolution were not satisfied (i.e., the landlord did not fail to perform and/or the procedures for notice and placing in default were not followed). As such, extrajudicial dissolution of a lease by a tenant puts the tenant at risk of a suit for rent due under the remainder of the lease. More commonly, a landlord will report a debt straight to a collection agency without suing and include an “early termination fee” or other penalty that may be inappropriate or illegal under the circumstances. Landlords have an obligation to mitigate their damages when a tenant terminates their lease early.8

Grounds for a tenant to dissolve a lease may include:

• Landlord’s failure to maintain the apartment in a habitable condition.9
• 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.10
• Landlord’s failure to maintain tenant in peaceable possession.11
• Landlord’s substantial violation of lease.12
• Fraudulent misrepresentations about neighborhood safety.13

In addition to landlord breach, a tenant may terminate a lease early for the following reasons:

• Total destruction of premises by fire, flood, or other force majeure.14
• Partial destruction or substantial impairment of use by fire, flood, or other force majeure.15
• Verbal agreement (despite written term lease) allowing tenant to cancel at any time.16
• Certain military orders to relocate.17
• Tenant’s disability which requires early termination.18
• Domestic violence or sexual assault.19

• 1La. C.C. art. 2728.
• 2Id.
• 3La. C.C. art. 2718.
• 4La. C.C. art. 2719.
• 5La. C.C. art. 2015.
• 6La. C.C. art. 1991 (identifying methods of placing an obligor in default).
• 7
• 8La. C.C. art. 2002.
• 9Freeman v. G.T.S. Corp., 363 So. 2d 1247 (La. App. 4 Cir. 1978).
• 10La. C.C. arts. 2693, 2719.
• 11Essen Dev. v. Marr, 95-1344 (La. App. 1 Cir. 11/30/95), 687 So. 2d 98 (other tenant’s barking dog rendered premises uninhabitable).
• 12La. C.C. art. 2719.
• 13Borne v. Edwards, 612 So. 2d 219 (La. App. 4 Cir. 1992).
• 14La. C.C. art. 2714
• 15La. C.C. arts. 2693, 2715; Bossier Ctr., Inc. v. Palais Royal, Inc., 385 So. 2d 886, 890 (La. App. 2 Cir. 1980). But see Eubanks v. McDowell, 460 So. 2d 42, 44 (La. App. 1 Cir. 1984) (finding that flood damage that took 4 days to repair was “mere injury” and not “partial destruction.”).
• 16Harper v. Gorman, 96-513 (La. App. 5 Cir. 04/29/97), 694 So. 2d 1094.
• 17La. R.S. 9:3261; 50 U.S.C. § 500.
• 1842 U.S.C. § 3604(f)(3)(b) (requiring reasonable accommodation of tenant’s disability); Samuelson v. Mid-Atl. Realty Co., 947 F. Supp. 756 (D. Del. 1996). If a disabled tenant can no longer use the apartment because it has become inaccessible, the landlord should allow early termination as an accommodation.
• 19La. R.S. 9:3261.1 (domestic violence); La. R.S. 3261.2 (sexual assault); 34 U.S.C. § 12491 (Violence Against Women Act; applies only to federally subsidized tenancies). Note that the Louisiana statutes do not apply to all dwellings.

Some notable principles of lease analysis are:

• Uncertain or ambiguous lease provisions must be construed against the drafter (typically the landlord) and in favor of maintenance of the lease.1
• Oral modifications or the parties’ course of conduct can change a written lease.2
• If the lease does not govern a particular problem, then Louisiana Civil Code arts. 2668-2744 or other applicable laws will govern.
• The lease provision may be unenforceable or prohibited if it violates the law or public policy.3
• If a lease contains conflicting provisions, ordinary principles of contract interpretation may be used to resolve the conflict.

• 1New Orleans Minority Bus. Ctr., Ltd. v. Duong, 97-CV-0894 (La. App. 4 Cir. 11/19/97), 703 So. 2d 157, 158.
• 2Karno v. Joseph Fein Caterer, Inc., 2002-1269 (La. App. 4 Cir. 4/16/03), 846 So. 2d 105, 107–08; Quigley v. T.L. James & Co., 595 So. 2d 1235, 1238 (La. App. 5 Cir. 1992) (finding question of material fact regarding existence of oral modification and holding that the “proponent of an oral amendment must show that there was an oral agreement and meeting of the minds between the lessor and lessee as to the alleged modification”).
• 3La. C.C. art. 1968. For examples of unenforceable lease provisions, see Section 1.5.2.

Some lease provisions are unenforceable:

• Waiver of repair of/or liability for serious defects in residential lease.1
• Waiver of warranty of peaceable possession.2
• Waiver of minimum notice to terminate lease when one or both parties have reserved the right to terminate the lease before the end of the term.3
• Waiver of rights under rent deposit statute.4
• Any clause allowing landlord to collect future rent due under the lease after electing to terminate the lease.5
• Waivers of liability for intentional or gross fault that causes damage, and waiver of liability for physical injury.6
• Any contract made in violation of the Louisiana Unfair Trade Practices and Consumer Protection Law.7
• 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.8

Other provisions may be unenforceable if their object or cause is to circumvent the law or public policy.9

• 1La. C.C. art. 2699(3); Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So. 3d 977, 985–86. However, note the exception to liability under Article 2699 if the lessee has assumed responsibility for defect in the leased premises, found in La. R.S. 9:3221. See Stuckey v. Riverstone Residential SC, LP, 2008-1770 (La. App. 1 Cir. 08/05/09); 21 So. 3d 970.
• 2Entergy La., Inc. v. Kennedy, 2003-0166 (La. App. 1 Cir. 07/02/03), 859 So. 2d 74.
• 3La. C.C. arts. 2718, 2728–2729. However, the 5-day notice to vacate required by La. C.C.P. art. 4701 may be waived for private tenants.
• 4La. R.S. 9:3254.
• 5U.S. Leasing Corp. v. Keiler, 290 So. 2d 427, 430 (La. App. 4 Cir. 1974). But see 745 Olive St., L.L.C. v. Optimal Wellness, LLC, 54,778 (La. App. 2 Cir. 11/16/22), 351 So. 3d 890, 895 (holding that landlord was not precluded from suing for future rent when the lessee abandoned the rental and the landlord changed the locks and attempted to re-lease the premises).
• 6La. C.C. art. 2004.
• 7See La. R.S. 51:1403.
• 8Seals v. Sumrall, 2003-0873 (La. App. 1 Cir. 09/17/04), 887 So. 2d 91, 96.
• 9See La. C.C. art. 1968; Bach Inv. Co. v. Philip, 98-667 (La. App. 5 Cir. 12/16/98), 722 So. 2d 1222, 1223.

• Timely tender of rent constitutes payment of rent, which defeats eviction for nonpayment of rent even if landlord refuses to accept rent.1
• A tenant may not be evicted for paying late or partial rent if there is a custom of accepting late or partial payment. In this situation, the landlord is deemed to have waived the 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.2  Nevertheless, some cases hold that no custom of late payment is established if the landlord has made frequent and unsuccessful demands for punctual payment or where acceptance of late payments results from the landlord’s unwilling indulgence.3
• A Section 8 Housing Choice Voucher program tenant cannot be evicted for a public housing authority’s failure to pay the government’s portion of the rent if the tenant paid the tenant portion of the rent.4
• Tenant is not afforded an opportunity to cure lease violation per rectification clause in lease or law.5  This can be raised as an affirmative defense in addition to a prematurity exception, i.e., even if lease violation occurred, lease violation does not place tenant in default due to lack of opportunity to cure. Read the lease carefully, as some cure clauses only appear in the default section applicable to lease violations other than nonpayment.
• Tenant’s rent payment was improperly imputed to a different debt (such as a back balance instead of the current month).6  It is important to advise tenants to always mark on their rent payment or money order what it should be used for (e.g., “Rent, May 2022”).
• Eviction automatically stayed by bankruptcy filing, until stay lifted.7
• The Bankruptcy Code may prohibit Public Housing Authority from evicting a subsidized tenant for non-payment of pre-petition rent debt.8
• Rent being charged constitutes illegal post-disaster price gouging.9
• A tenant may use the repair-and-deduct provisions of La. C.C. art. 2694 as an affirmative defense to an eviction for nonpayment of rent.10  Eviction for nonpayment is improper where lessor prevented tenant from exercising rights under Article 2694 and making repairs.11
• Tenant is entitled to an abatement of rent if displaced from all or part of their home during repairs under La. C.C. art. 2693.12

• 1La. C.C. art. 1869; Cantrell v. Collins, 2007-1192 (La. App. 1 Cir. 02/08/08), 984 So. 2d 738; Adams v. Dividend, Inc., 447 So. 2d 80, 83 (La. App. 4 Cir. 1984); Herman Invs., Inc. v. Lighthouse Club, Inc., 378 So. 2d 515, 516 (La. App. 4 Cir. 1979); Saxton v. Para Rubber Co. of La., 118 So. 64, 65–65 (La. 1928).
• 2Versailles Arms Apartments v. Pete, 545 So. 2d 1193, 1195 (La. App. 4 Cir. 1989); Hous. Auth. v. Allen, 486 So. 2d 1064, 1065 (La. App. 2d Cir. 1986); Hous. Auth. of St. John the Baptist Par. v. Sheperd, 447 So. 2d 1232, 1235 (La. App. 5th Cir. 1984); Grace Apartments v. Hill, 428 So. 2d 862, 863 (La. App. 1 Cir. 1983) (custom of accepting partial rent); KM, Inc. v. Weil Cleaners, Inc., 50,209 (La. App. 2 Cir. 1/13/16), 185 So. 3d 112, 118; Jones v. Paul, 254 So. 2d 915, 917 (La. App. 1 Cir. 1971) (custom created even where landlord was not pleased to accept late rent, but presented no evidence of protest). But see Ryan v. Doucet, 21-32 (La. App. 5 Cir. 8/25/21), 327 So. 3d 577, 586 (custom did not defeat eviction where no lease payments made for 8 years); Maestri v. Nall, 145 So. 128 (Orl. App. 1937) (delay in payment beyond the customary payment date may defeat the custom defense).
• 3Shank-Jewella v. Diamond Gallery, 535 So. 2d 1207 (La. App. 2 Cir. 1988) (acceptance of late payments involuntary); Himbola Manor Apartments v. Allen, 315 So. 2d 790, 793 (La. App. 3 Cir. 1975) (custom did not defeat eviction where acquiescence was unwilling and forced).
• 424 C.F.R § 982.310(b).
• 5Second Zion Baptist Church #1 v. Jones, 2017-0926 (La. App. 4 Cir. 4/18/18), 245 So. 3d 9, 14; Shell Oil v. Siddiqui, 98-CA-496 (La. App. 5 Cir. 12/16/98), 722 So. 2d 1197; Sands v. McConnell, 426 So. 2d 218, 219 (La. Ct. App. 1982); Ford v. Indep. Bakers Supply, Inc., 385 So. 2d 580, 581 (La. Ct. App. 1980). But see Lobell v. Rosenberg, 2015-0247 (La. 10/14/15), 186 So. 3d 83, 89 (where lease contained a 30-day opportunity to cure, the notice of violation did not specifically need to give formal notice of the cure period).
• 6See La. C.C. arts. 1864–1867.
• 711 U.S.C. § 362(a); In re Burch, 401 B.R. 153 (Bankr. E.D. Pa. 2008).
• 811 U.S.C. § 525; In re Stoltz, 315 F.3d 80, 89 (2d Cir. 2002) (finding that eviction of public housing tenant for pre-petition rent debt would revoke a protected government grant in violation of 11 U.S.C. § 525(a)). Contra Hous. Auth. v. Eason, 2009-992 (La. 6/26/09), 12 So. 3d 970, rev’g 2008-0525 (La. App. 4 Cir. 3/4/09) (declining to follow Stoltz); In re Valentin, 309 B.R. 715 (Bankr. E.D. Pa. 2004) (finding that 11 U.S.C. § 525(a) prohibits Housing Authority from barring future participation in the public housing program based on discharged rent debt, but does not bar eviction for nonpayment).
• 9La. R.S. 29:732, et seq.
• 10Evans v. Does, 283 So. 2d 804, 807 (La. App. 2 Cir. 1973).
• 11Lake Forest, Inc. v. Katz & Besthoff No. 9 Inc., 391 So. 2d 1286 (La. App. 4 Cir. 1980). A detailed discussion of the requirements for proper utilization of the repair-and-deduct remedy is provided in Section 11.3.
• 12See Section 11.2.2 for additional discussion of abatement.

Although risky in practice, abatement may be an affirmative defense to an eviction for nonpayment of rent when a unit has been rendered partially or completely uninhabitable.1

In NOLA East, LLC v. Sims, the tenant was evicted for nonpayment from an apartment with holes, faulty plumbing, and decayed interior surfaces.2  At trial, the tenant attempted to argue that he was entitled to an abatement as an affirmative defense based on La. C.C. art. 2693. The Fourth Circuit Court of Appeal held that the trial court erred in denying the tenant the right to argue his abatement defense at trial and then in denying tenant a new trial to argue the defense.

Sims was decided by a five-judge panel over the dissent of Judge Lobrano, who argued that habitability-related defenses did not relieve the tenant of the obligation to pay rent.3  The majority opinion makes it clear that habitability issues could constitute a defense to nonpayment eviction such that a tenant may argue that the alleged unpaid amount, or a portion thereof, was not due based on La. C.C. art. 2693.

In support of this argument, an advocate may point to the doctrine surrounding former Article 2700,4  which more explicitly outlined the amount of rent reduction to which a tenant is entitled:

If, during the continuance of the lease, the thing leased should be in want of repairs, and if those repairs cannot be postponed until the expiration of the lease, the tenant must suffer such repairs to be made, whatever be the inconvenience he undergoes thereby, and though he be deprived either totally or in part of the use of the thing leased to him during the making of the repairs. But in case such repairs should continue for a longer time than one month, the price of the rent shall be lessened in proportion to the time during which the repairs have continued, and to the parts of the tenement for the uses of which the lessee has thereby been deprived.

And the whole of the rent shall be remitted, if the repairs have been of such nature as to oblige the tenant to leave the house or the room and to take another house, while that which he had leased was repairing.

Thus, a tenant who is wholly displaced during repairs is entitled to a full remission of rent, and a tenant who is deprived of the use of part of the apartment is entitled to a proportional reduction.5   According to the revision comments, “[t]he second paragraph of [La. C.C. art. 2693] reproduces the principle contained in the second and third sentences of Article 2700 (1870), but without the confining details found therein.”6  In light of this comment, it is clear that the Legislature intended La. C.C. art. 2693 to authorize partial abatement proportional to the percentage of the property rendered unusable during a period of repairs.

Despite the potentially favorable language of Sims and the revisions comment to La. C.C. art. 2693, raising an abatement defense in an eviction for nonpayment of rent for an uninhabitable unit is still challenging within the context of an eviction suit. A long line of cases seems to establish that a tenant’s exclusive remedies when faced with a landlord’s breach of the warranty of habitability are repair and deduct, or dissolution and damages.7  A tenant may not withhold rent in order to pressure a landlord to make repairs.8  A lessor’s breach of the warranty of habitability is not an affirmative defense that would entitle lessee to maintain possession of the premises.9  Moreover, jurisprudence analyzing a similar article, La. C.C. art. 2715, which permits a rent reduction where a tenant’s use of the home is “substantially impaired” in the absence of tenant fault, says that a tenant cannot unilaterally apply a rent reduction as a “self-help” remedy. Instead, the parties must agree to the amount of reduction or the tenant can sue for a judicial determination.10

An abatement defense may be stronger if the tenant has put the contested rent in the court registry. A 2019 decision from the Eastern District of Louisiana held that where a commercial tenant withheld rent for two months due to unmade repairs, under the belief that such rent was not owed, and then deposited the contested rent into the court registry upon receipt of a notice to vacate, judicial control dictated that lease should not be terminated.11

Due to the conflicting and unsettled status of abatement law, it may be advisable to affirmatively sue for a rent abatement before a rule for possession is filed, and then file a lis pendens exception once the landlord brings an eviction suit.

• 1La. C.C. art. 2693; see NOLA E., LLC v. Sims, 2018-0623, p. 7 (La. App. 4 Cir. 02/13/19), 265 So. 3d 1147, 1153 (Lobrano, J., dissenting).
• 2NOLA E., LLC, 2018-0623, p. 5, 265 So. 3d at 1150–51.
• 3Id. at p. 7, 265 So. 3d at 1153 (Lobrano, J., dissenting).
• 4See La. C.C. art. 2693 cmt. b.
• 5Eubanks v. McDowell, 460 So. 2d 42, 44 (La. App. 1 Cir. 1984) (holding that lessee was entitled to a reduction of rent where unable to use apartment for two weeks due to flooding and citing former La. C.C. art. 2700).
• 6La. C.C. art. 2693 cmt. b.
• 7New Hope Gardens, Ltd. v. Lattin, 530 So. 2d 1207, 1210 (La. App. 2 Cir. 1988); Degrey v. Fox, 205 So. 2d 849, 852 (La. App. 4 Cir. 1968); Cameron v. Krantz, 299 So. 2d 919, 923 (La. App. 3 Cir. 1974).
• 8Davilla v. Jones, 436 So. 2d 507, 510 (La. 1983).
• 9241 Holdings, LLC v. 241 Enters., LLC, 2021-0011 (La. App. 4 Cir. 12/15/21), 334 So. 3d 854, 860.
• 10727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 2012-1014, p. 11 (La. App. 4 Cir. 8/21/13), 122 So. 3d 1152, 1159.
• 11Tales IP, LLC v. Common-Camp, LLC, No. CV 19-11339, 2019 WL 5785092, at *4 (E.D. La. Nov. 6, 2019).

• Landlord cannot evict for “no cause” during the fixed term of the lease.1
• Good cause is required for non-renewal of public housing, low-income tax credit housing, project-based voucher and Section 8 project-based rental assistance housing, rural development housing, and some other subsidized housing leases.2
• Lease is recorded or assumed by new owner. A new owner who purchases the leased property is typically not subject to the lease between the tenant and the old owner. However, if the tenant recorded the lease agreement in the conveyance records before the sale, the new owner is bound by the lease.3  A new owner who accepts rent and follows the other lease terms has arguably assumed the lease, such that it remains in effect under its original terms.
• Eviction was an abuse of right/retaliatory.4
• Tenant cannot be evicted for “force majeure” where the unit is only partially destroyed.5
• If a lease with indeterminate term obligates tenant to make repairs but the landlord delivered the leased premises in deplorable condition, the lease should not be terminated until the lessee has been adequately compensated for repair work the lessee performed.6

• 1La. C.C. arts. 1983, 2728; Shell Oil, Co. v. Siddiqui Grp. Enters., Inc., 98-CA-496 (La. App. 5 Cir. 12/16/98), 722 So. 2d 1197.
• 2For discussion of the unique requirements of these leases, see this manual’s chapter on federally subsidized housing.
• 3See La. C.C. arts. 2711–2712.
• 4See section 5.4.2 for further discussion of abuse of right doctrine in eviction defense.
• 5La. C.C. art. 2714­–2715; Chivleatto v. Family Furniture & Appliance Ctr., 196 So. 2d 298, 301 (La. App. 4 Cir. 1967) (“[W]here a building is only partially destroyed, . . . it is the lessee and not the lessor that is given the exclusive right to demand revocation of the lease.”); Treigle Sash Factory, Inc. v. Saladino, 31 So. 2d 172, 175 (1947) (holding that where building was only partially destroyed in fire, and could be restored, the lessor was not entitled to possession).
• 6Wolf v. Walker, 342 So. 2d 1122 (La. App. 4 Cir. 1976).

An abuse of right is an act that objectively appears to be an exercise of an individual right, but that is not protected by the courts because it is exercised with a predominant intent to harm, is performed without a serious and legitimate interest, or is contrary to good faith or moral rules.1  Abuse of right has been expressly recognized as an eviction defense when a landlord refuses to renew a fixed-term lease in retaliation for a tenant’s attempt to secure his rights under the lease or applicable law.2  However, as of this writing, there is no published case finding that a tenant met their burden of proof on an abuse of right defense to eviction.

The key to winning a retaliatory eviction defense is proving the landlord’s retaliatory motive. Because the tenant must prove that the notice to vacate was issued in retaliation for a good faith attempt to secure the tenant’s rights, proof of retaliatory intent is often difficult.3  A set of facts that might satisfy the requirements of abuse of right is one in which the landlord threatens in writing (or in a recorded oral statement) to terminate a month-to-month lease due to tenant’s action to enforce their rights, for example by calling code enforcement.

Public and private landlords are barred from retaliating against tenants who attempt to enforce their rights under the federal Fair Housing Act.4  If a government agency is the landlord, tenants may not be retaliated against for exercise of First Amendment or other constitutional rights.5

Effective July 1, 2023, City of New Orleans Ordinance 26-680 creates a rebuttable presumption of retaliation where a landlord chooses not to renew a lease within 6 months of an attempt by the tenant to enforce their right to safe, habitable housing. For the rebuttable presumption to apply, there must be evidence of a violation of health and safety standards.

• 1See Ill. Cent. Gulf R.R. Co. v. Int’l Harvester, 368 So. 2d 1009, 1014 (La. 1979).
• 2Owens & Sons v. Casey, 94-2580 (La. App. 4 Cir. 07/26/95), 659 So. 2d 541 (reviewing establishment and application of abuse of right doctrine, but finding no abuse of right); Capone v. Kenny, 94-0888 (La. App. 4 Cir. 11/30/94), 646 So. 2d 510 (finding that the trial court erred in declining to consider tenant’s defense of abuse of right, but also declining to find an abuse of right).
• 3Real Estate Servs., Inc. v. Barnes, 451 So. 2d 1229 (La. App. 4 Cir. 1981).
• 442 U.S.C. § 3617.
• 5McQueen v. Druker, 317 F. Supp. 1122, 1131 (D. Mass. 1970), aff’d, 438 F.2d 781 (1st Cir. 1971).

Following a hurricane or other natural disaster, it is common to see landlords conduct mass evictions for inspection and repair. The terms of the lease will typically control in this situation. However, in the absence of specific lease terms, the Civil Code applies. If a unit is totally destroyed, the lease automatically terminates.1  The landlord still must go through the legal eviction process. However, if a unit is only partially destroyed, or the tenant’s use “substantially impaired,” the tenant may choose to terminate the lease, but the landlord may not.2  To determine the level of damage, the Court may consider (1) length of time the repairs would take, (2) the extent of the tenant’s loss of use, (3) the length of time the tenant would be displaced, (4) damage done to the tenant’s property, (5) the amount paid by the insurer of the building to the insured (as compared with the value of the building), (6) the cost of repairs, and (7) to what degree and which parts of the building are damaged.3  In the case of mass evictions post-disaster, advocates should insist that the landlord must do a unit-by-unit assessment of damage. It is not permissible to simply evict everyone from a multifamily property because some units sustained some damage.

• 1La. C.C. art. 2714.
• 2La. C.C. art. 2715; Chivleatto v. Family Furniture & Appliance Ctr., 196 So. 2d 298, 301 (La. App. 4 Cir. 1967); Treigle Sash Factory, Inc. v. Saladino, 31 So. 2d 172, 175 (La. 1947).
• 3See Bossier Ctr., Inc. v. Palais Royal, Inc., 385 So.2d 886 (La. App. 2 Cir. 1980); Eubanks v. McDowell, 460 So.2d 42 (La. App. 1 Cir. 1984).

• The doctrine of judicial control is a defense to eviction. Judges have discretion not to evict even if a lease violation is proven.1  Lease cancellation is not favored in Louisiana.2  The court may grant a tenant additional time to perform their obligations under the lease, i.e., to cure a violation.3
• Acceptance of rent after notice to vacate vitiates the notice and defeats eviction.4  This can be raised as an exception as previously described and/or as an affirmative defense. Acceptance of rent for a subsequent month following a notice to terminate a month-to-month lease for no cause vitiates the notice and reinstates the lease.5  However the notice is not vitiated if the only rent accepted is the remaining month of occupancy.6  In the case of eviction for lease violations, acceptance of rent after the notice to vacate cures the default and reinstates the lease.7  Acceptance of the rent after the judgment generally does not vitiate the notice to vacate.8 However, acceptance of subsidy provider’s portion of rent does not vitiate the eviction.9
• The landlord with unclean hands (e.g., one who contributed to, or enabled, the tenant’s alleged violation) is not entitled to eviction. 

• 1Carriere v. Bank of La., 702 So. 2d 648 (La. 1996).
• 2Ergon, Inc. v. Allen, 593 So. 2d 438 (La. App. 2 Cir. 1992); Tolar v. Spillers, 2 So. 3d 560, 563–64 (La. App. 2 Cir. 2009).
• 3See La. C.C. arts. 2013, 2719.
• 4Canal Realty & Improvement Co. v. Pailet, 46 So. 2d 303 (La. 1950); Fort Miro Subdivision P’ship v. Gix, 53591 (La. App. 2 Cir. 04/14/21), 316 So. 3d 185; Pin Oak v. McSweeney, 2018-CA-1073 (La. App. 1 Cir. 02/26/19), 2019 WL 927186; Billiot v. Hue, 2010-1825 (La. App. 1 Cir. 05/06/11), 2011 WL 1944120; Hous. Auth. of Town of Lake Providence v. Allen, 486 So. 2d 1064 (La. App. 2 Cir. 1986). But see CP Com. Props., LLC v. Sherman, 53897 (La. App. 2 Cir. 04/14/21), 318 So. 3d 445 (holding that acceptance of rent after notice to vacate did not vitiate the notice to vacate because the eviction grounds were not based on non-payment, but rather an expiration of the lease); A & J, Inc. v. Ackel Real Estate, L.L.C., 2002-259 (La. App. 5 Cir. 10/16/02), 831 So. 2d 311; see also CP Com. Props., 53897; 318 So. 3d 445 (upholding eviction where rent was paid after the notice to vacate because the grounds for eviction did not involve non-payment of rent and the lease term ended).
• 5Four 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).
• 6CP Com. Props., 53,897, 318 So. 3d at 448.
• 7A & J, Inc., 02-259, 831 So. 2d 311 (eviction for failure to remove exterior signs and reserved parking designations in violation of lease); Canal Realty & Improvement Co., 46 So. 2d at 306 (eviction for affixing signs to the window); Kingfish Dev., L.L.C. v. Press IT #1 New Orleans, LLC, 2013-1113, p. 8 (La. App. 4 Cir. 03/26/14), 135 So. 3d 1232, 1235 (eviction for nonpayment of electric bill).
• 8Nathans 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).
• 9La. R.S. 9:3259.2.

Louisiana courts have always had equitable discretion not to cancel a lease for nonpayment of rent.1  The 2004 revisions to the lease articles arguably broadened this discretion by expressly incorporating the Civil Code articles on obligations and contracts as the manner for regaining possession.2  The title on conventional obligations expressly allows a court to give a tenant in default for nonpayment of rent additional time to perform.3

As a practical matter, courts generally limit their exercise of equitable discretion to cases in which the nonpayment of rent was not willful and the landlord is immediately made whole,4  the landlord’s acts or omissions contributed to the delay in receiving the rent,5  or unusual circumstances are present.6  The doctrine of judicial control should be similarly applicable to evictions for other lease violations.

• 1Porter v. Miller, 2000-1436 (La. App. 3 Cir. 02/28/01), 782 So. 2d 1123; Ergon, Inc. v. Allen, 593 So. 2d 438 (La. App. 2 Cir. 1992); Hous. Auth. of Lake Charles v. Minor, 355 So. 2d 271 (La. App. 3 Cir. 1977); Metzinger v. Bundrick, 503 So. 2d 666 (La. App. 3 Cir. 1987).
• 2La. C.C. art. 2704.
• 3La. C.C. art. 2013.
• 4See 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); Hous. Auth. 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. Standard Oil Co. of La., 144 So. 430 (La. 1932) (rent check unduly delayed in mail); Rudnick v. Union Producing Co., 25 So. 2d 906 (La. 1946) (legitimate dispute over additional rent payment claimed).
• 5See, e.g., Bordelon v. Bordelon, 434 So. 2d 633 (La. App. 3 Cir. 1983).
• 6Hartmann v. Bank of La., 95-3058, p. 19 (La. 12/13/96), 702 So. 2d 648.

A tenant may suspensively appeal an eviction judgment from city, parish, or district court if a verified answer was filed prior to trial stating an affirmative defense.1  To suspend execution of the warrant of possession, the motion for suspensive appeal and appeal bond must be filed within 24 hours of rendition of the judgment.2

If proper procedure is not followed for a suspensive appeal, the appellate court may continue the appeal as devolutive where appropriate.3  The devolutive appeal will not prevent execution of the eviction judgment, but the tenant will not be required to pay a suspensive appeal bond. The delay period for a devolutive appeal of a city or parish court eviction judgment is 10 days.4

The trial court is divested of jurisdiction upon the granting of the order of appeal and timely paying of bond.5  Normally the trial court would retain jurisdiction in limited circumstances, but in evictions the trial court does not retain jurisdiction to convert a suspensive appeal to a devolutive appeal when the bond is not timely filed.6

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.7

• 1La. C.C.P. art. 4735.
• 2Id.
• 3Pledge Dev. Corp. v. Big Kahuna Enters., Inc., 376 So. 2d 600, 602 (La. App. 4 Cir. 1979) (suspensive appeal of eviction converted to devolutive appeal); Polk v. Buckhalter, 2018-0053 (La. App. 1 Cir. 09/24/18), 258 So. 3d 816, 818 (same); Vision Aviation, L.L.C. v. Airport Auth., 09-742 (La. App. 3 Cir. 07/29/09), 13 So. 3d 809 (same).
• 4La. C.C.P. art. 5002(A)–(B).
• 5La. C.C.P. art 2088(A).
• 6La. C.C.P. art. 2088(B). However, if your client cannot pay the bond and you are still within the 10-day delay to file a motion for devolutive appeal, you can argue the 2088(B) exception does not apply.
• 7La. C.C.P. art. 5001; La. C.C.P. art. 2081, et seq.

Application must be made to the trial court for suspensive appeal by written motion, filed within 24 hours after the rendition of a judgment of eviction.1  Judgment is rendered when a written judgment is signed, not when the judgment is orally announced.2  As such, an appeal may be premature if it is filed before the written judgment.3

An appeal bond must also be filed within 24 hours of judgment, in an amount set by the trial court.4  As a practical matter, the appellant cannot pay a bond that has not yet been set. Sometimes it takes the judge longer than 24 hours to sign a motion for suspensive appeal and set the bond. Advocates should propose a bond amount in the motion for suspensive appeal and consider attempting to pay the proposed amount within 24 hours. In the alternative, if the court will not accept a bond before the order is signed, consider photocopying a money order for the proposed amount and filing that with the motion for suspensive appeal.5

Typically, after the order for suspensive appeal is signed and the bond paid, the trial court will prepare the record and the court reporter will prepare the transcript. If the client is indigent, presumably an in forma pauperis application was filed with the answer. The order to proceed in forma pauperis covers appeal costs.6  The court reporter may argue otherwise, but the transcript is covered by the in forma pauperis application along with all other costs of preparing the record.7

When the record is complete, the trial court sends it to the court of appeal. At that point, the parties will receive a “notice of lodging” with briefing deadlines for each side. Direct appeals of evictions can take 6–8 months to complete.

In most jurisdictions, weekends, legal holidays, and half-holidays are not included in the computation of time if the delay is less than 7 days.8  If an eviction judgment is rendered on a Friday or the day before a holiday, the deadline to vacate or file an appeal is the next business day.9

• 1La. C.C.P. art. 4735.
• 2See Viator v. Heintz, 10 So. 2d 690, 691 (La. 1942); Buras v. Plaquemines Par. Democratic Exec. Comm., 202 So. 2d 678, 679 (La. App. 4 Cir. 1967); Hous. Auth. of Lake Charles v. Minor, 355 So. 2d 270, 271 (La. App. 3 Cir. 1977).
• 3La. C.C.P. art. 1911. Wynne v. Parlay’s, Inc., 97-1170 (La. App. 4 Cir. 11/05/97); 701 So. 2d 1369 (an appeal granted before the signing of a final judgment is subject to dismissal until the final judgment is signed). But see Overmeir v. Traylor, 475 So. 2d 1094 (La. 1985) (signing of final judgment cures defect).
• 4La. C.C.P. art. 4735.
• 5For additional discussion of suspensive appeal bonds, see Section 7.1.3.
• 6See Dowden v. Miller, 404 So. 2d 1270, 1271 (La. App. 1 Cir. 1981) (“Thus once the trial court allowed plaintiff to proceed in forma pauperis and did not rescind the order, the second forma pauperis order was not necessary, and plaintiff could perfect a devolutive appeal ‘without paying the costs in advance, or as they accrue, or furnishing security therefor.’”).
• 7La. C.C.P. art. 5185(A)(1).
• 8La. C.C.P. art. 5059.
• 9Note that not all jurisdictions declare Saturday as a legal holiday.

A suspensive appeal requires that the appellant post an appeal bond. The purpose of a suspensive appeal bond is to protect the appellee from being further damaged during the pendency of the appeal.1  In the context of an eviction, the damage that may be sustained is lost rent.2  At least three Louisiana courts of appeal have held that an order for a tenant appellant to post the rental amount as the rent becomes due constitutes a proper suspensive appeal bond.3  Under special circumstances (e.g., the tenant does not pay rent under the lease agreement), the court may set a lower “nominal” bond for an appellant with in forma pauperis status.4  However, at least one court has ruled that a bond less than one month’s rent, when challenged, was insufficient.5

In forma pauperis litigants are not exempted from the requirement of a suspensive appeal bond.6  However, setting an excessive appeal bond for an indigent tenant is an abuse of discretion.7

A tenant may post a surety or cash bond.8  The surety must have net assets exceeding the amount of the bond.9  The formalities of the bond must be strictly complied with, on penalty of subjecting the surety to possible false swearing charges. The landlord may test the sufficiency, solvency, or legality of the bond by a rule to show cause.10  If the surety is found insufficient or invalid, the tenant has 4 days to correct the deficiency by filing a new or supplemental bond.11  The tenant has two opportunities to correct a deficient bond.12  The tenant may file a corrected bond at any time prior to the filing of a rule to test the original bond.13

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.14

• 1La. C.C.P. art. 4735.
• 2Lakewind E. Apartments v. Porree, 629 So. 2d 422, 423 (La. App. 4 Cir. 1993) (bond can either be set at the monthly rent multiplied by the estimated number of months the appeal will take, or at monthly rent payable as due); A & J, Inc. v. Ackel Real Estate, L.L.C., 2002-259, p. 10–11 (La. App. 5 Cir. 10/16/02), 831 So. 2d 311, 317 (suspensive appeal bond should be “sufficient to cover the expected rents during the appellate period”).
• 3Lakewind E. Apartments, 629 So. 2d at 423; Robinson Ventures, LLC v. Dowl, 2004-2149, p. 2 (La. App. 4 Cir. 04/20/05), 901 So. 2d 587, 589; Windmill Creek N. - 1st Lake v. Gowan, 20-85 (La. App. 5 Cir. 2/21/20), 2020 WL 875252; Jenkins v. Johnson, 2019-0985 (La. App. 1 Cir. 07/29/19).
• 4Guste v. Thomas, 2019-C-0988 (La. App. 4 Cir. 11/19/19) (subsidized tenant paid small portion of rent and there was no showing that the current rent was unpaid; Lewis v. Alcee, 2020-C-0188 (La. App. 4 Cir. 3/17/20) (family property where occupant paid no rent). Note that in Guste the appellate court stated that the tenant still owed monthly rent to the landlord. However, presumably because this monthly rent was not part of the bond, failure to pay would give rise to a new eviction rather than dismissal of the appeal.
• 5PRCP-NS New Orleans, LLC v. Swanson, 2022-0393 (La. App. 4 Cir. 12/16/22).
• 6La. C.C.P. art. 5185(B).
• 7Jenkins v. Johnson, 2019-0985 (La. App. 1 Cir. 07/29/19) (abuse of discretion where bond for pauper was in the amount of $6000 and held appropriate alternate bond to pay rent each month into registry).
• 8La. C.C. art. 3068; Case v. Case, 316 So. 2d 418 (La. App. 2 Cir. 1975); Filmore Parc Apartments v. Howard, 2004-1299 (La. App. 4 Cir. 07/30/04).
• 9La. C.C.P. art. 5122. 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., Urb. Homeowners’ Corp. v. Abrams, 96-CA-1237 (La. App. 4 Cir. 03/26/97), 692 So. 2d 673.
• 10La. C.C.P. art. 5123.
• 11La. C.C.P. art. 5124; Hoerner v. Paul, 392 So. 2d 191 (La. App. 4 Cir. 1981) (4-day rule applies to eviction appeals); Viccinelli v. Causey, 394 So. 2d 1309 (La. App. 1 Cir. 1981).
• 12La. C.C.P. art. 5126.
• 13La. C.C.P. art. 5124.
• 14La. C.C.P. art. 2161; Alost v. Lawler, 2020-0832 (La. App. 1 Cir. 06/02/21), 326 So. 3d 1255, 1261-62; Wright v. Jefferson Roofing, Inc. 630 So. 2d 773, 776 (La. 1994). But see Lakewind E. Apartments v. Poree, 629 So. 2d 422 (La. App. 4 Cir. 1993) (rule does not apply to “continuing” bond of monthly rental payments when tenant make late payments).

A suspensive appeal stays the effect or execution of the eviction judgment. If the tenant’s eviction is affirmed by the court of appeal, the judgment becomes final and executory. Timely application to the Louisiana Supreme Court for a writ of certiorari precludes execution of the eviction judgment until the Supreme Court rejects the writ application.1

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 for the trial court.2

The landlord’s and tenant’s obligations remain in effect during the suspensive appeal.3  A landlord who attempts to evict or eject a tenant in violation of the suspensive appeal or a stay order may be subject to a contempt action for violation of a court order or damages for lease violations.4

At least one court has held that a suspensive appeal does not suspend a tenant’s obligation to pay rent as it becomes due during the appeal.5  Thus, despite pendency of a suspensive appeal, failure to pay rent in a subsequent month may constitute a lease violation for which the landlord can sue to evict. As a result, a tenant should timely tender the rent as it becomes due while the appeal is pending. Moreover, if the appeal bond is set at monthly rent payable as due, failure to timely pay rent to the court registry pursuant to the appeal bond could result in dismissal of the tenant’s suspensive appeal.6

• 1La. C.C.P. art. 2166.
• 2La. C.C.P. arts. 2166, 2167; Francis v. Lake Charles Am. Press, 265 So. 2d 206 (La. 1972).
• 3Cf. Reed v. Classified Parking Sys., 324 So. 2d 484, 490 (La. App. 2 Cir. 1975). But see Smith v. Castro Bros. Corp., 443 So. 2d 660 (La. App. 4 Cir. 1983).
• 4A suspensive appeal order suspends or stays the effect or execution of the judgment. La. C.C.P. art. 2123(A). Violation of a suspensive appeal order is punishable as contempt. See La. C.C.P. arts. 224–­227; La. R.S. 13:4611. Violation of a stay order is punishable as contempt. See La. C.C.P. art. 3611 (violations of injunctions punishable as contempt of court; court may undo whatever was done in violation of an injunction and aggrieved party may recover damages); La. C.C.P. art. 2502.
• 5Sarpy v. Morgan, 426 So. 2d 293 (La. App. 4 Cir. 1983); see also Guste v. Thomas, 2019-C-0988 (La. App. 4 Cir. 11/19/19).
• 6Lakewind E. Apartments, 629 So. 2d 422.

A tenant in compliance with a suspensive appeal bond should not be required to move out while the appeal is pending. However, if a tenant cannot afford a suspensive appeal bond, the tenant must appeal devolutively. In that case, a landlord may execute the judgment of eviction.

In Curran Place Apartments v. Howard, the Fourth Circuit considered the situation in which the tenant, who could not afford the suspensive appeal bond, moved out pursuant to the eviction judgment the day before she filed her motion for devolutive appeal.1  Because the tenant had vacated the premises, the court dismissed her devolutive appeal as moot. However, the Howard court noted that “[w]hile there may be some claim for damages for illegal eviction, no such claim is presented in this appeal.”2

In New Orleans Hat Attack v. New York Life Insurance Co., the same court held that an evicted tenant who takes a devolutive appeal does not acquiesce in the judgment by vacating the premises and that compliance with an eviction judgment does not forfeit a tenant’s right to a devolutive appeal.3  If a case on devolutive appeal can serve a purpose or provide the litigant relief (i.e., by supporting a damages claim for wrongful eviction), the case is not moot.4  New Orleans Hat Attack distinguished Howard and similar cases by noting that they involved expired leases; thus, the devolutive appeal of a tenant with an unexpired lease is not mooted by the tenant’s vacating the premises. In addition, the Fourth Circuit has ruled that a devolutive appeal is not moot because an eviction judgment on a tenant’s record will harm their ability to secure future housing.5

It is 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 landlord or the landlord’s attorney saying that the tenant does not intend to forfeit any appeal rights and that the tenant is only moving out to avoid a trespass charge. The motion for devolutive appeal should also clearly state why the appeal is not moot (i.e., because of the potential of damages for wrongful eviction or because of the potential harm of an eviction judgment on the tenant’s record). A tenant who moves out may also wish to record a notice of the devolutive appeal (notice of lis pendens) in the parish mortgage office under La. C.C.P. art. 3751, et seq., in order to protect the tenant’s rights against third parties.6

The reversal of the eviction judgment may have res judicata effect on any subsequent suit for wrongful eviction.7  This might allow you to quickly move for summary judgment in the wrongful eviction suit because the reversal of the eviction judgment is dispositive of the fact that the eviction was wrongful. Note, however, 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.8  Another court has held that an eviction judgment is not res judicata to a subsequent suit for wrongful eviction since the tenant could not have asserted her claims in the eviction.9

• 1563 So. 2d 577 (La. App. 4 Cir. 1990).
• 2Id. at 578.
• 395-0055 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1186.
• 4Id.
• 5Barry Bernadas c/o Bella Zoya Props. v. Palmer, 2022-CA-0758 (La. App. 4 Cir. 4/19/23), 2023 WL 3002452.
• 6See Ducote v. McCrossen, 95-CA-2072 (La. App. 4 Cir. 05/29/96), 675 So. 2d 817.
• 7Mangelle v. Abadie, 19 So. 670 (La. 1896); Hart v. Scott, 47012 (La. App. 2 Cir. 03/07/12), 90 So. 3d 30; Smith v. Shirley, 2001-1249 (La. App. 3 Cir. 02/06/02), 815 So. 2d 980, 984.
• 8Graci v. Gasper John Palazzo, Jr., LLC, 09-A-347 (La. App. 5 Cir. 12/29/09), 30 So. 3d 915, 918.
• 9Horacek v. Watson, 06-210 (La. App. 3 Cir. 07/05/06), 934 So. 2d 908 (eviction is summary proceeding, damages is ordinary, therefore no wrongful eviction relief in eviction suit).

Appeal from a 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.1  Appeals from justice of the peace court are tried de novo in parish or district court, and no further appeal is allowed.2  Once the appeal order is signed and bond paid, if there is a bond, the justice of the peace is divested of jurisdiction but for limited matters.3

Because a trial de novo does not allow for an appeal, it is always best practice to formulate defenses as exceptions where possible. There is no prohibition against taking a writ when an exception is improperly denied.4

At a trial de novo in parish or district court, the whole case is open for decision and is retried as if there had been no prior trial whatsoever.5  Because the case is tried de novo, the record below (if there is one) is immaterial. A tenant may raise new defenses and present new evidence in the trial de novo.6  Again, although no further appeals are allowed in justice of the peace evictions, the court of appeal still has supervisory jurisdiction over the parish or district court’s appellate jurisdiction and may reverse the eviction.7  A writ application to reverse a trial de novo decision by a parish or district court should be accompanied by a request for a stay of the eviction judgment.

• 1La. C.C.P. art. 4924(A).
• 2La. C.C.P. art. 4924(B)–(C).
• 3La. C.C.P. art. 2088.
• 4La. C.C.P. art. 4924.
• 5Some trial de novo courts treat the eviction as a review. Should this occur, it is the advocate’s responsibility to appear in court prepared to make the appropriate objections on the record, as this may give rise to a supervisory writ.
• 6See, e.g., The Home Depot v. State Workers’ Comp. Second Injury Bd., 2005 CA 0674 (La. App. 1 Cir. 03/29/06), 934 So. 2d 125, 127 (defining “de novo” in different statutory context); Nat’l Union Fire Ins. Co. v. La. Workers’ Comp. Second Injury Bd., 2014-0033 (La. App. 1 Cir. 09/19/14), 2014 WL 4667601 (same).
• 7La. C.C.P. art. 4924.

The petition for appeal by trial de novo should include a proposed order staying execution of the eviction. The order, once signed, should be sent to the justice of peace and the landlord. It is critical that you contact the justice of the peace and provide a copy of the stay order, which may require driving to their house and office. Some justices of the peace will halt execution in response to a phone call informing them that an appeal has been filed. However, some will not. Many justices of the peace operate very informally and do not check their email frequently. As a last resort, you should provide a copy of the signed stay order to your client and advise them to stay home the day after the eviction and call you if there is an attempt to execute.  

Appeals must be filed within 15 days of judgment.1  However, as a practical matter, the appeal should be filed as soon as possible to prevent execution of the eviction judgment. Because of the possibility of delays at the parish or district court, you should bring trial de novo paperwork to the eviction and file your appeal immediately after an adverse judgment.

• 1La. C.C.P. art 4925.

Advocates should argue that La. C.C.P. art. 4735 does not apply to appeals by trial de novo from justice of the peace evictions. Instead, these appeals are governed by La. C.C.P. arts. 4924 and 4925. This means that in order to stay a justice of the peace eviction pending trial de novo it should not be necessary that an answer have been filed with the justice of the peace nor that a suspensive appeal bond be paid within 24 hours. This doctrinal position has been accepted by the First and Fifth Circuit Courts of Appeal.1  The position should be encouraged in other circuits on the basis that no written pleadings are required in justice of the peace court,2  and that a trial de novo is a substantively different procedural mechanism, with a substantially different timeline, than a direct appeal to the court of appeal.3  However even if Article 4735 does not apply, a bond could still be required under La. C.C.P. art. 2124. Therefore, it is still risky to suggest no bond is required.

If the tenant can pay a bond, you should propose that the bond be set at monthly rent payable as due.4  If the trial de novo is set before the next month’s rent is due, no bond may be due.5

Because justice of the peace appeal procedure changed in 1986, when conducting legal research in older cases, carefully check that the case is still valid for the proposition for which you are citing it.

• 1See Lakewood Palms, LLC v. Jennings, 22-C-259 (La. App. 5 Cir. 6/20/2022; Augillard v. Strauss, 2015 CW 1241 (La. App. 1 Cir. 8/14/15).
• 2La. C.C.P. 4917(A).
• 3Specifically, a trial de novo is typically set within days or weeks, whereas a direct appeal can take the better part of a year to complete, increasing the risk to the landlord. It is also worth highlighting the lack of formality and procedural protections in justice of the peace court, hence the right to a completely new trial before a formal court of law.
• 4Windmill Creek N. - 1st Lake v. Gowan, 20-85 (La. App. 5 Cir. 2/21/20).
• 5Note that this is an evolving area of the law. Advocates should feel free to contact the authors for updated information or briefing on this issue.

The effect of suspensive and devolutive appeals is functionally the same for justice of the peace court and for parish or district court.1

• 1For these effects, see Section 7.1.4 and Section 7.1.5.

If an appeal or a motion for new trial 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 a client who did not receive service of process, paid the rent before the eviction judgment, or was told by the landlord not to attend the trial.

A petition for nullity of judgment does not stay execution of the allegedly null judgment. Therefore, such petitions should be verified and include an application for a temporary restraining order and preliminary injunction.1  A petition for nullity of judgment and injunctive relief should generally be brought in the trial court that rendered the eviction judgment.2  The petition for nullity of judgment may be filed in the eviction case.3

A preliminary injunction requires a prima facie showing of irreparable harm and likelihood of success on the merits.4  The verified petition for nullity of judgment and injunctive relief should include factual allegations showing that the tenant will suffer irreparable injury if a temporary restraining order is not granted. Irreparable injury is present in virtually all evictions involving indigent tenants.5

A judgment may be annulled for vice of form or of substance.6

• 1La. C.C.P. arts. 3601–3613.
• 2La. C.C.P. art. 2006.
• 3Gazebo, Inc. v. City of New Orleans, 97-2769 (La. App. 4 Cir. 3/23/98), 710 So. 2d 354, 358.
• 4Easterling v. Est. of Miller, 2014-1354 (La. App. 4 Cir. 12/23/15), 184 So. 3d 222, 229.
• 5See, e.g., Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1159 (9th Cir. 2011).
• 6See La. C.C.P. arts. 2001­–2006.

A petition for nullity for vice of form may be brought where a final judgment was issued against an incompetent person not represented as required by law, against a defendant who was not properly served or against whom a valid default judgment has not been taken, or by a court with no subject-matter jurisdiction.1  This type of nullity action can be brought at any time.2  A judgment annulled for vice of form is absolutely null and may be attacked “collaterally, at any time, by rule or by any other method.”3  As such, an absolutely null judgment can be attacked by contradictory motion.4

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.5  First City Court for the City of New Orleans constables must also serve Rules for Possession by regular mail pursuant to Sylvester v. Detweiler.6

Default judgments in which the record itself discloses an insufficient notice to vacate, or a premature rule date, can usually be nullified because eviction court judges generally recognize that a default judgment should not have been entered.7

• 1La. C.C.P. art. 2002.
• 2La. C.C.P. art. 2002(B).
• 3Johnson v. La. Dep’t of Pub. Safety & Corr., 2019-1244, p. 13 (La. App. 1 Cir. 05/11/20), 304 So. 3d 426, 434.
• 4Leonard v. Reeves, 2011-1009 (La. App. 1 Cir. 1/12/12), 82 So. 3d 1250, 1260.
• 5Greene v. Lindsey, 456 U.S. 444 (1982) (finding tacking insufficient where public housing residents provided evidence that notices were frequently removed by children and other tenants); see La. C.C.P. art. 2002. But see French Quarter Realty v. Gambel, 2005-CA-0933 (La. App. 4 Cir. 12/28/05), 921 So. 2d 1025 (finding due process satisfied when defendant claimed non-receipt of tacked notice but provided no evidence and did receive mailed notice).
• 6No. 84-3399 (E.D. La. 1985) (class action consent judgment based on Greene).
• 7See generally La. C.C.P. arts. 4732, 1701–1703; Baham v. Faust, 373 So. 2d 725 (La. App. 1 Cir. 1979), appeal after remand, 382 So. 2d 975 (La. App. 1 Cir. 1980).

A petition for nullity for a vice of substance may be brought if a judgment is obtained by fraud or ill practices.1  This type of nullity action must be brought within one year of discovery of the fraud or ill practices.2  A judgment annulled for a vice of substance is relatively null.3  An action for nullity for vice of substance must be brought by petition with citation and proper service of process.4  The action must proceed as an ordinary proceeding, but may be filed in the original eviction case.5

Louisiana courts have established two criteria to determine if a judgment was obtained by fraud or ill practices: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) the enforcement of the judgment would be unconscionable and inequitable.6  Even if no intentional wrongdoing or fraud is found, a judgment may be annulled where its enforcement would be unconscionable, inequitable and in impairment of a legal right.7  The court may award attorney fees if the eviction judgment is annulled for fraud or ill practices.8

Misrepresentations by the landlord that are material to obtaining the default judgment are also grounds for nullification under La. C.C.P. art. 2004 .9  The typical misrepresentations that occur in eviction defaults are that the lease is only month-to-month when the tenant has a written lease for a fixed term (and therefore cannot be evicted without cause) and nonpayment of rent when the landlord has, in fact, accepted the rent.

• 1La. C.C.P. art. 2004.
• 2Id.
• 3Raine v. Raine, 2015-1161 (La. App. 4 Cir. 08/03/16), 197 So. 3d 854, 857.
• 4Nethken v. Nethken, 307 So. 2d 563, 565 (La. 1975).
• 5Gazebo, Inc. v. City of New Orleans, 97-2769 (La. App. 4 Cir. 3/23/98), 710 So. 2d 354, 358.
• 6CA One/Pampy’s v. Brown, 2007-1377 (La. App. 4 Cir. 04/02/08), 982 So. 2d 909; see also Power Mktg. Direct, Inc. v. Foster, 05-2023 (La. 09/06/2006), 938 So. 2d 662.
• 7Kem Search, Inc. v. Sheffield, 434 So. 2d 1067 (La. 1983); Bradford v. Thomas, 499 So. 2d 525 (La. App. 2 Cir. 1986).
• 8La. C.C.P. art. 2004(C).
• 9Cf. Temple v. Jackson, 376 So. 2d 972 (La. App. 1 Cir. 1979).

In Younger v. Harris, the Supreme Court held that federal courts must abstain from interference with pending state court criminal proceedings.1  The Fifth Circuit has long held that federal courts should abstain under Younger only in very limited, narrow circumstances.2  Ten years after Younger, the Supreme Court ruled that the Younger abstention applies in civil proceedings if there is an ongoing state judicial proceeding, the proceedings implicates important state interests, and there is an adequate opportunity in the state proceedings to raise constitutional challenges; this is known as the Middlesex test.3

In 2013 the Supreme Court clarified that “even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the ‘exception, not the rule.’”4  Prior to conducting the Middlesex test, the federal court must first determine if the proceeding falls into one of the “exceptional circumstances” that “justif[ies] a federal court’s refusal to decide a case in deference to the States.”5  These circumstances include ongoing state criminal prosecutions, certain civil enforcement proceedings, and pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.”6  This test arguably restricts the ability of federal courts to abstain in eviction cases.7  As a practical matter, a federal suit seeking to enjoin an eviction must be filed before the eviction action is filed to avoid Younger abstention issues.

• 1401 U.S. 37, 53 (1971).
• 2Morial v. Judiciary Comm’n of La., 565 F.2d 295, 299 (5th Cir. 1977) (“The Younger principles simply are not . . . a broad, discretionary, device for the evasion of the responsibility of federal courts to protect federal rights from invasion by state officials.”).
• 3Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
• 4Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 81–82 (2013) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)).
• 5Id. at 78 (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989)).
• 6Id.
• 7For examples of housing cases (non-FHA) where tenants have defeated Younger abstention, see Kemp v. Chi. Hous. Auth., No. 10 C 3347, 2010 WL 2927417 (N.D. Ill. 2010) (termination of public housing assistance); Ayers v. Phila. Hous. Auth., 908 F.2d 1184, 1195 n. 21 (3d Cir. 1990) (due process); McNeill v. N.Y.C. Hous. Auth., 719 F. Supp. 233, 255 (S.D.N.Y. 1989) (procedures for terminating rent subsidy).

The Anti-Injunction Act bars federal courts from enjoining an already filed state court action except as expressly authorized by Act of Congress, where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.1  The courts are divided over whether the Anti-Injunction Act applies to Fair Housing Act claims.2  Although the Anti-Injunction Act would not apply if the defendant were a “state actor” subject to suit under 42 U.S.C. § 1983, Younger abstention may still bar the federal injunction.3

• 128 U.S.C. § 2283.
• 2Compare Casa Marie, Inc. v. Superior Ct. of P.R., 988 F. 2d 252 (1st Cir. 1993) with Oxford House, Inc. v. City of Albany, 819 F. Supp. 1168 (N.D.N.Y. 1993).
• 3Younger v. Harris, 401 U.S. 37 (1971).

The Rooker-Feldman doctrine deprives a federal court of 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.1  Rooker-Feldman does not apply to Fair Housing Act claims based on conduct that predates the state court judgment.2  However, some courts, including the Fifth Circuit, may apply Rooker-Feldman more broadly to bar actions that require reviewing the validity of a state court eviction judgment.3

• 1The doctrine is enunciated in two U.S. Supreme Court cases. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
• 2Poindexter v. Allegheny Cnty. Hous. Auth., 329 F. App’x 347 (3d Cir. 2009); Long v. Shore Bank Dev. Corp., 182 F.3d 548 (7th Cir. 1999).
• 3See, e.g., Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 390-91 (5th Cir. 2012); Babalola v. B.Y. Equities, Inc., 63 F. App’x 534 (2d Cir. 2003); Chambers v. Habitat Co., 215 F.3d 1329 (7th Cir. 2000).

Eviction of tenants based on unlawful discrimination can be enjoined under the Fair Housing Act1  and 42 U.S.C. § 1982.2

Housing discrimination cases involving contested factual issues and a discriminatory eviction 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.3

• 142 U.S.C. § 3601, et seq. For a more extensive discussion of the FHA, see Section 13.
• 2See, e.g., Bill v. Hodges, 628 F.2d 844, 845 (4th Cir. 1980). The Anti-Injunction Act does not prohibit a federal court from enjoining a landlord from filing a state court eviction lawsuit. 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.
• 3Cf. Spallino v. Monarch Sign, 2000-447 (La. App. 3 Cir. 10/11/00), 771 So. 2d 784.

Tenants have a right of action under 42 U.S.C. § 1983 for a number of violations of the United States Housing Act.1  These claims typically arise in the context of public or other subsidized housing evictions in violation of statutory and constitutional procedural requirements.2 Specifically, federal courts have repeatedly found that certain subsidized tenants have a cause of action under 24 C.F.R. § 1983 if their subsidies are terminated without proper notice and an opportunity to respond in violation of 42 U.S.C. § 1437d(k).3 The U.S. Supreme Court has also recognized that certain subsidized tenants can sue under § 1983 for violations of the Brooke Amendment, 42 U.S.C. § 1437a(a)(1), which limits the rent and utility burden in several HUD subsidy programs.4 Advocates should be sure to follow developments in the law that may limit use of § 1983 to enforce federal rights.

• 142 U.S.C. § 1437, et seq.
• 2For more complete discussion of these requirements, see this manual's chapter on federally subsidized housing.
• 3Poole v. Hous. Auth. for the Town of Vinton, 202 F. Supp. 3d 617, 624 (W.D. La. 2016); Farley v. Phila. Hous. Auth., 102 F.3d 697, 698 (3d Cir. 1996); Stevenson v. Willis, 579 F. Supp. 2d 913, 923 (N.D. Ohio 2008); Conway v. Hous. Auth. of City of Asheville, 239 F. Supp. 2d 593, 599 (W.D.N.C. 2002); Gammons v. Mass. Dep’t of Hous. & Cmty. Dev., 523 F. Supp. 2d 76, 84 (D. Mass. 2007).
• 4Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987) (regarding utility allowances).

Filing bankruptcy may be a remedy for some tenants in default. The Bankruptcy Code requires that the trustee assume or reject unexpired leases within a period of time.1  If assumed, the debtor’s default must be cured.2

Evictions are automatically stayed by the filing of a bankruptcy petition.3  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.4  Attorneys acting on behalf of landlords or other creditors may be personally held in contempt for their participation in stay violations.

There are two exceptions to a § 362 bankruptcy stay of evictions: the eviction judgment was obtained prior to bankruptcy filing5  and an eviction based on “endangerment” of property or illegal drug use on the property by tenant.6  The latter exception requires that a certification be filed with the bankruptcy court.

A landlord may move for relief from the automatic stay in certain cases.7  Many housing issues will be litigated through opposition to relief from the stay or motions to vacate the stay.

The Bankruptcy Code prohibits a governmental entity from denying, revoking, or suspending a grant based on nonpayment of discharged pre-petition debt.8  As such, bankruptcy petitions, particularly Chapter 13 reorganizations,9  can be a powerful remedy for public housing tenants who face eviction for nonpayment of rent because their subsidy may be considered a government grant.10

• 111 U.S.C. § 365(a).
• 211 U.S.C. § 365(b).
• 311 U.S.C. § 362 (a)(3); see 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).
• 4See In re Ozenne, 337 B.R. 214 (9th Cir. BAP 2006); Pettite v. Baker, 876 F.2d 456 (5th Cir. 1989).
• 511 U.S.C. § 362(b)(22); In re Brown, No. 95 B 16825, 1995 WL 904913, at *3 (Bankr. N.D. Ill. Dec. 19, 1995) (holding that a lease is not unexpired and therefore subject to assumption if it was terminated prior to the bankruptcy filing, but also that the point in the eviction process when a lease “terminates” is determined by state law).
• 611 U.S.C. § 362(b)(23).
• 711 U.S.C. § 362(d).
• 811 U.S.C. § 525(a).
• 9For additional discussion of Chapter 13 bankruptcy, see Section 5.1 of the chapter on defending home ownership.
• 10In re Stoltz, 315 F.3d 80, 89 (2d Cir. 2002) (finding that eviction of public housing tenant for pre-petition rent debt would revoke a protected government grant in violation of 11 U.S.C. § 525(a)); contra Hous. Auth. v. Eason, 2009-992 (La. 6/26/09), 12 So. 3d 970 (declining to follow Stoltz where pre-petition debt was discharged in a Chapter 7 bankruptcy), rev’g 2008-0525 (La. App. 4 Cir. 03/04/09); In re Valentin, 309 B.R. 715 (Bankr. E.D. Pa. 2004) (finding that 11 U.S.C. § 525(a) prohibits Housing Authority from barring future participation in the public housing program based on discharged rent debt, but does not bar eviction for nonpayment).

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 payments.1  A rule to evict may be used to evict the buyer in a bond for deed or lease-purchase agreement.2

If an agreement is 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.3  La. 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 La. 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 similar 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.4

A Chapter 13 bankruptcy may be used to cure a default in a bond for deed and pay arrearages.5  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. 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 automatic stay of pending cases.6

If the buyer fails to fulfill the conditions of the bond for deed, the purchaser is entitled to return of all monies paid on the purchase price and the seller is entitled to the fair rental value for the buyer’s occupancy.7  A waiver of the purchaser’s right to return the monies paid violates public policy and is unenforceable.8  Inclusion of such a waiver in a bond for deed contract may constitute an unfair trade practice.9

A buyer may sue for specific performance of the bond for deed and conveyance of title upon prepayment or payment of the price in full.10

• 1La. R.S. 9:2941; H.J. Bergeron, Inc. v. Parker, 2006-1855 (La. App. 1 Cir. 06/08/07), 964 So. 2d 1075, 1076; Lyons v. Pitts, 40,733 (La. App. 2 Cir. 03/08/06), 923 So. 2d 962, 963 (agreement to give warranty deed sufficient for bond for deed to exist).
• 2Bennett v. Hughes, 2003-1727 (La. App. 4 Cir. 05/26/04), 876 So. 2d 862.
• 3See La. R.S. 9:2945; Thomas v. King, 35,857 (La. App. 2 Cir. 04/03/02), 813 So. 2d 1227; Tabor v. Wolinski, 1999-1732 (La. App.1 Cir. 09/22/00), 767 So. 2d 972.
• 4Broadway v. All-Star Ins. Corp., 285 So. 2d 536 (La. 1973) (in different context, prima facie presumption of delivery of cancellation notice from proof of deposit of notice in mails was overcome by direct evidence of nonreceipt).
• 5In re Curtis, 500 B.R. 122, 123 (Bankr. N.D. Ala. 2013) (following jurisprudence holding that an Agreement for Deed should be treated as “a secured transaction for which defaults may be cured and payments maintained over the life of the [Chapter 13] Plan pursuant to Code [11 U.S.C.] § 1322(b)(5)” instead of “an executory contract, which must be assumed or rejected under Code §§ 365 and 1322(b)(7).”); In re Booth, 19 B.R. 53 (Bankr. D. Utah 1982) (finding a land sale contract should be considered a security instrument rather than an executor contract under the bankruptcy code); In re Johnson, 75 B.R. 927 (Bankr. N.D. Ohio 1987) (finding that a land installment contract was more akin to a security instrument than an executory contract, but nonetheless finding that proposed repayment schedule in Chapter 13 plan sought to modify the obligation and therefore rejecting). But see In re Rancho Chamberino, Inc., 89 B.R. 597, 600 (W.D. Tex. 1987) (declining to follow Booth and finding that the statutory definition of contract for deed under applicable state law supported treatment as an executory contract). Cf. In re Brown, 325 B.R. 169, 174 (Bankr. E.D. La. 2005) (examining amount owed to creditor in the context of a Chapter 7 bankruptcy where the debtor defaulted on a bond for deed contract).
• 611 U.S.C. § 362(b)(22).
• 7Berthelot v. Le Investment, 2002-2054 (La. App. 4 Cir. 01/21/04), 866 So. 2d 877.
• 8Seals v. Sumrall, 2003-0873, p.7 (La. App. 1 Cir. 09/17/04), 887 So. 2d 91, 96; Montz v. Theard, 2001-0768 (La. App. 1 Cir. 02/27/02), 818 So. 2d 181, 187.
• 9La. R.S. 51:1403.
• 10Lyons v. Pitts, 40,733 (La. App. 2 Cir. 03/08/06), 923 So. 2d 962 (buyer had right to prepay bond for deed where contract silent as to this issue).

Without a promise to transfer title following completion of the installment payments, an agreement is not a bond for deed.1  However, a contract may be a “bond for deed” even if it is styled as something else.2  A contract requiring the buyer to obtain financing to pay off a mortgage can be a bond for deed.3  An agreement can be a bond for deed even if it does not comply with statutory protections for the bond for deed buyer.4  The presence of a final nominal payment or a balloon payment does not prevent an agreement from being a bond for deed.5

The proper interpretation of a contract is a legal issue subject to de novo review.6

By comparison, La. C.C. 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 stipulated 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.7  There is a 10-year limit on options to buy.8

A bond for deed must be made by authentic act or by act under private signature.9  However, occupancy plus sworn admission by the seller can substitute for the lack of a written agreement.10

• 1James v. Denham Springs Rent All, Inc., 2007-0858 (La. App. 1 Cir. 12/21/07), 2007 WL 4465620; Solet v. Brooks, 2009-0568 (La. App. 1 Cir. 12/16/09), 30 So. 3d 96, 99–100; Bradstreet v. Kinchen, 2008-0126 (La. App. 4 Cir. 04/01/09), 10 So. 3d 331, 336–37; Williams v. Adams, 2010-0477 (La. App. 1 Cir. 11/01/10), 2010 WL 4278275.
• 2See, e.g., Bayou Fleet P’ship v. Phillip Fam., LLC, 07-581 (La. App. 5 Cir. /02/06/08), 976 So. 2d 794; Tabor v. Wolinski, 1999-1732 (La. App.1 Cir. 09/22/00), 767 So. 2d 972 (“lease-purchase agreement” was a bond for deed); Mooers v. Sosa, 01-286 (La. App. 5 Cir. 09/25/01), 798 So. 2d 200 (“affidavit” was a bond for deed).
• 3Cottingim v. Vliet, 2008-1263 (La. App. 4 Cir. 08/12/09), 19 So. 3d 26, 31.
• 4Montz v. Theard, 2001-0768 (La. App. 1 Cir. 02/27/02), 818 So. 2d 181, 187.
• 5Bennett v. Hughes, 2003-1727 (La. App. 4 Cir. 05/26/04), 876 So. 2d 862, 863–64.
• 6Montz, 2001-0768, 818 So. 2d at 187.
• 7Bayou Fleet P’ship v. Phillip Fam., LLC, 11-924 (La. App. 5 Cir. 03/27/12), 91 So. 3d 1112.
• 8La. C.C. art. 2628; Bubola v. Stutts, 2008-183 (La. App. 1 Cir. 09/12/08), 2008 WL 4191020.
• 9Solet, 2009-0568, 30 So. 3d at 100.
• 10Upton v. Whitehead, 41,131 (La. App. 2 Cir. 06/28/06), 935 So. 2d 746, 749.

Money for damages or rent are not recoverable in a summary proceeding instituted by a rule for possession.1  In addition, service of process by tacking does not subject a tenant to the requisite personal jurisdiction for entry of a money judgment.2  If confronted with a demand for unpaid rent within the eviction proceeding, a tenant should file an exception of unauthorized use of summary proceedings as to the rent claims.3

Generally, an obligation to pay rent is barred by the 3-year prescriptive period for a suit on an open account, not the 10-year prescription for breach of contract.4

A landlord has a duty to mitigate damages when a tenant prematurely terminates a lease.5

If the landlord terminates the lease, it forfeits the right to collect future rent under the lease.6  Lease provisions purporting to grant the landlord a right to future rentals after eviction or termination of the lease are unenforceable.7

If faced with rent debt related to early lease termination or “abandonment,” advocates should argue that in the case of a landlord’s failure to make repairs, a tenant may be legally justified in terminating the lease early.8  A landlord may also be required to terminate a lease early without penalty where a tenant needs to move for safety reasons due to sexual assault or domestic violence.9  A tenant may also be entitled to be released form the lease early as a reasonable accommodation for disability (for example, if the tenant lives in a second story apartment and develops a disability preventing climbing stairs).10

Attorneys and collection agencies who attempt to collect debts for landlords are subject to the Fair Debt Collection Practices Act.11

• 1Friedman v. Hofchar, Inc., 424 So. 2d 496, 499 (La. App. 5 Cir. 1982); Himbola Manor Apartments v. Allen, 315 So. 2d 790 (La. App. 3 Cir. 1975); Major v. Hall, 263 So. 2d 22 (La. 1972).
• 2Friedman, 424 So. 2d at 499–500.
• 3Garrett v. Cross, 41,139 (La. App. 2 Cir. 7/18/06), 935 So. 2d 845 (judgment for rent upheld where tenant failed to file exception, and where tenant was personally served with citation for rent arrears).
• 4Starns v. Emmons, 538 So. 2d 275 (La. 1989); La. C.C. 3494.
• 5La. C.C. art. 2002; Easterling v. Halter Marine, Inc., 470 So. 2d 221 (La. App. 4 Cir. 1985); La. R.S. 9:3260. Note, however, that it is unclear if this statute refers to the landlord’s or the tenant’s damages or, because a lease is a bilateral contract, to both.
• 6Richard v. Broussard, 495 So. 2d 1291, 1293 (La. 1986); 1001 Harimaw Ct. E., LLC v. Blo, Inc., 10-860 (La. App. 5 Cir. 05/24/11), 66 So. 3d 1131, 1133; Sunbelt Sec. Servs., Inc. v. Delahoussaye, 572 So. 2d 598, 605 (La. App. 4 Cir. 1990).
• 71001 Harimaw Ct., 10-860, 66 So. 3d at 1133.
• 8La. C.C. art. 2719 (“When a party to the lease fails to perform his obligations under the lease or under this Title, the other party may obtain dissolution of the lease pursuant to the provisions of the Title of ‘Conventional Obligations or Contracts.’”); La. C.C. art. 2013 (“When the obligor fails to perform, the obligee has a right to the judicial dissolution of the contract or, according to the circumstances, to regard the contract as dissolved.”); La. C.C. art. 2015 (“Upon a party’s failure to perform, the other may serve him a notice to perform within a certain time, with a warning that, unless performance is rendered within that time, the contract shall be deemed dissolved.”); La. R.S. 9:3260 (“When a lessee or tenant of commercial, residential, or dwelling premises has been constructively evicted from the premises, and when the premises are rendered uninhabitable through no fault of the lessee or tenant, the landlord or lessor shall be required to mitigate his damages.”); New Hope Gardens, Ltd. v. Lattin, 530 So. 2d 1207, 1210 (La. App. 2 Cir. 1988) (tenant’s remedies where landlord fails to make repairs are repair and deduct, or dissolution); Degrey v. Fox, 205 So. 2d 849, 852 (La. App. 4 Cir. 1968) (same); Cameron v. Krantz, 299 So. 2d 919, 923 (La. App. 3 Cir. 1974) (same).
• 9La. R.S. 9:3261.1 (domestic violence); La. R.S. 3261.2 (sexual assault); 34 U.S.C. § 12491 (Violence Against Women Act; applies only to federally subsidized tenancies).
• 1042 U.S.C. § 3604(f)(3)(B). For a further discussion of accommodations for a tenant’s disability, see Section 13.5.2.
• 11See Romea v. Heiberger Assocs., 163 F. 3d 111 (2d Cir. 1998).

La. C.C. arts. 2707–2710 grant the landlord a privilege over the tenant’s property 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. Enforcement of a lessor’s privilege requires judicial process, e.g., a writ of sequestration.1  Wrongful seizure will subject the landlord to damages and attorney fees.2  Seizure of property exempt under La. R.S. 13:3881 is a wrongful seizure.3  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.4

• 1La. C.C. art. 2707 cmt. d. The landlord does not have to post security for a writ of sequestration. La. C.C.P. art. 3575.
• 2La. C.C.P. art. 3506; Horacek v. Watson, 2011-1345 (La. App. 3 Cir. 3/7/12), 86 So. 3d 766.
• 3Girgis v. Macaluso Realty Co., Inc., 2000-0753 (La. App. 4 Cir. 01/31/01), 778 So. 2d 1210; Belle v. Chase, 468 So. 2d 744 (La. App. 5 Cir. 1985); Oubre v. Hinchman, 365 So. 2d 17 (La. App. 4 Cir. 1978).
• 4Oubre, 365 So. 2d 17.

A cluster of code articles establish a warranty of habitability.1  The landlord must deliver the premises to the tenant in good condition suitable for the purpose for which it was leased.2  Thereafter, the landlord must maintain the property in good condition.3  A tenant may sue and recover damages from a landlord for violations of this warranty, i.e., failure to maintain apartment in good condition.4

The warranty of habitability cannot be waived as it pertains to defects of which the landlord knew or should have known and defects that seriously affect tenant health and safety.5  In addition, any lease clause that limits liability of one party for intentional or gross fault that causes damage to the other party, or limits liability of one party for causing physical injury to the other party, is null.6  An “as is” clause in a lease agreement does not constitute a valid waiver of these statutory warranties.7

The warranty against vices and defects contained in La. C.C. arts. 2696–2699 covers defects that arise after the beginning of the tenancy and are not the fault of the lessee.8  It extends to defects that are not known to the lessor.9  As a result, courts have applied a strict liability standard to breach of the warranty against vices and defects.10

However, La. R.S. 9:3221 limits a landlord’s liability under Articles 2696–2699 if the tenant expressly assumed responsibility for the conditions of the unit under the lease.11  In such cases, the standard is effectively converted from a strict liability to a negligence standard.12  The language in the lease assigning responsibility to the tenant must be clear and unambiguous.13  In the absence of such language, assumption of risk is not in and of itself a defense to a damages claim for breach of the warranty of habitability.14  Even where there is an express assumption of responsibility in the lease, the landlord who knew or should have known of the defect may still be liable; liability may also attach if the landlord received notice of the defect and failed to remedy it in a reasonable time.15  A landlord may not claim the exculpatory benefits of La. R.S. 9:3221 where the defect causing injury was in a common area or building-wide system.16

• 1La. C.C. arts. 2682 (lessor’s principal obligations), 2684 (obligation to deliver the unit in good condition), 2691 (lessor’s obligation to make repairs), 2696 (warranty against vices and defects).
• 2La. C.C. art. 2684. Before the 2004 revision to the lease articles, this rule was codified at Article 2693.
• 3La. C.C. arts. 2691, 2696.
• 4See Ganheart v. Exec. House Apartments, 671 So. 2d 525 (La. App. 4 Cir. 1996); Gennings v. Newton, 567 So. 2d 637 (La. App. 4 Cir. 1990); Growe v. Johnson, 2020-0143 (La. App. 4 Cir. 02/17/21), 314 So. 3d 87; see also La. C.C. arts. 2682, 2684, 2691, 2696–2699. But see Smith v. Castro Bros. Corp., 443 So. 2d 660 (La. App. 4 Cir. 1983) (reducing damages award for period of uninhabitability after tenant received notice to vacate).
• 5La. C.C. 2699.
• 6La. C.C. art. 2004, 2699(2).
• 7Pylate v. Inabnet, 458 So. 2d 1378, 1385 (La. App. 2 Cir. 1984); Moity v. Guillory, 430 So. 2d 1243 (La. App. 1 Cir. 1983).
• 8La. C.C. 2696.
• 9La. C.C. 2697. Note, however, that this warranty does not apply if the tenant knows of the defects and does not inform the landlord.
• 10Wells v. Norris, 46458 (La. App. 2 Cir. 08/10/11), 71 So. 3d 1165, 1169 (“The lessor’s liability is based on his status as landlord, not his personal fault; therefore, his lack of knowledge regarding the defect is inconsequential.”).
• 11La. R.S. 9:3221; Biggs v. Cancienne, 2012-0187 (La. App. 1 Cir. 09/21/12); 111 So. 3d 6 (reversing trial court’s judgment granting summary judgment for landlord where water-logged sheetrock fell on tenant because a factual dispute existed as to whether the landlord knew of the defect and failed to repair it in a reasonable time).
• 12Giles v. Wal-mart La. LLC, No. CV 16-2413, 2016 WL 2825778, at *5, n.4 (E.D. La. May 13, 2016).
• 13Wells, 46458, 71 So. 3d at 1170 (finding that La. R.S. 9:3221 did not apply because a lease provision requiring tenant to “maintain the house in good repair” did not amount to a “clear and unambiguous waiver of the warranty against vices and defects” imposed by La. C.C. art. 2696). But see Stuckey v. Riverstone Residential SC, Ltd. P’ship, 2008-1770 (La. App. 1 Cir. 08/05/09), 21 So. 3d 970, 974 (holding that a lease clause stating that the landlord “is not responsible for any injury, illness, harm or damage to the apartment of any person or property caused by or arising from, in whole or in part, mold or mildew” absolved landlord of liability under R.S. 9:3221 in a toxic mold case); Williams v. Three Girls, L.L.C., 2013-1589 (La. App. 4 Cir. 06/25/14), 142 So. 3d 1071, 1075–76 (finding lease contained clear and unambiguous language waiving the warranty against vices and defects, but reversing summary judgment in favor of property owner where there was a question of fact as to whether the owner knew or should have known about the defect).
• 14Smith v. Castro Bros. Corp., 443 So. 2d 660, 661 (La. App. 4 Cir. 1983) (holding that breach of the obligation of a landlord to provide habitable quarters cannot be excused on the ground that the tenant should have known the uninhabitability).
• 15La. R.S. 9:3221; see, e.g., Pylate v. Inabet, 458 So. 2d 1378 (La. App. 2 Cir. 1984) (landlord knew of the defective sewage system before leasing to the tenant and failed to remedy or inform tenant of defect).
• 16Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So. 3d 977, 986 (applying strict liability standard under Article 2699 where lease contained a waiver of the warranty against vices and defects, but a building fire originated in the wiring of a common area of the building which the court deemed “not included in the leased premises for the purposes of La. R.S. 9:3221”).

A tenant whose landlord fails to make necessary repairs may be entitled to an abatement or reduction of rent.1  However, unlike in some other jurisdictions, a tenant in Louisiana may not unilaterally withhold rent where a landlord fails to make repairs. Rather, a line of cases hold that a tenant’s available remedies are (1) to do repair and deduct under C.C. art. 2694, or (2) to terminate the lease and surrender the premises to the landlord.2  A tenant may obtain lease dissolution or diminution of rent where use of the leased premises is “substantially impaired” under La. C.C. art. 2715 by agreement of the parties, or by seeking a judicial determination.3  Because of this case law, it is advisable for a tenant to sue affirmatively for a rent reduction or abatement rather than unilaterally withholding rent.4  At least one court has awarded a tenant reimbursement for rent paid while the home was uninhabitable.5

In some circumstances, a tenant may regard their lease as dissolved without suing for dissolution where the landlord has failed to perform the landlord's obligations.6

• 1La. C.C. arts. 2715, 2693 (tenant displaced due to repairs that cannot wait until the end of lease).
• 2727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 2012-1014 (La. App. 4 Cir. 8/21/13), 122 So. 3d 1152, 1162; Degrey v. Fox, 205 So. 2d 849, 852 (La. App. 4 Cir. 1968); Cameron v. Krantz, 299 So. 2d 919, 922 (La. App. 3 Cir. 1974); New Hope Gardens, Ltd. v. Lattin, 530 So. 2d 1207, 1212 (La. App. 3 Cir. 1988); R & E Petroleum, LLC v. LKM Convenience, LLC, 22-238 (La. App. 5 Cir. 2/1/23), 2023 WL 1431992. But see Tales IP, LLC v. Common-Camp, LLC, No. CV 19-11339, 2019 WL 5785092, at *2 (E.D. La. Nov. 6, 2019) (declining to evict where withheld funds were placed in the court registry). On the repair-and-deduct remedy, see Section 11.3.
• 3727 Toulouse, 112 So. 3d at 1163; R & E Petroleum, 22-238, 2023 WL 1431992 (tenant may seek judicial determination of diminution of rent under La. C.C. art. 2715).
• 4La. C.C. art. 2693. Where an affirmative suit for abatement or reduction of rent is not possible, advocates can still argue abatement as an affirmative defense to eviction. NOLA E., LLC v. Sims, 2018-0623 (La. App. 4 Cir. 02/13/19), 265 So. 3d 1147, 1149 (court erred in refusing to allow tenant to submit evidence of substandard conditions when he claimed abatement under Article 2693 as a defense to eviction).
• 5Green v. ABC Rentals, 51461 (La. App. 2 Cir. 06/21/17), 224 So. 3d 1165, 1168–69 (affirming sizable award of damages plus the return of rental payments to lessee for total loss of use of apartment in uninhabitable condition).
• 6La. C.C. arts. 2013, 2015, 2016, 2719.

A tenant may be entitled to damages due to the landlord’s failure to perform. A tenant’s damages claim may be reduced if the tenant failed to notify the landlord of a defect that the landlord did not know about.1  Written notice of the defect is not required where the landlord had actual notice.2

Pecuniary damages available for a breach of the warranty of habitability include personal injury,3  lost wages,4  and reimbursement for personal property damaged because of the landlord’s failure to make repairs.5

A tenant can also claim nonpecuniary damages when bringing a claim for breach of the lease contract.6  To succeed, a tenant must prove that the lease contract was “intended to gratify a nonpecuniary interest” and that the landlord knew or should have known that failure to prove the unit in appropriate condition would injure that interest.7  Louisiana courts have affirmed that contracts involving one’s home gratify a nonpecuniary interest.8  Mental anguish and other similar nonpecuniary damages are routinely awarded in cases involving uninhabitable rental housing.9

Documentary evidence should be introduced to substantiate a damages claim.10  However, lack of documentary evidence due to a landlord’s breach may not be fatal to the claim.11

• 1La. C.C. arts. 2697, 2688.
• 2Ganheart v. Exec. House Apartments, 95-1278 (La. App. 4 Cir. 02/15/96), 671 So. 2d 525.
• 3Bates v. Blitz, 17 So. 2d 816, 820 (La. 1944) (upholding award of damages for personal injury under Article 2695, the predecessor to La. C.C. art. 2696).
• 4Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So. 3d 977.
• 5Growe v. Johnson, 2020-0143 (La. App. 4 Cir. 02/17/21), 314 So. 3d 87, 91 (furniture damaged by flooding that was landlord’s fault); Wilson v. Pou, 436 So. 2d 599 (La. App. 4 Cir. 1983) (mildew damage due to air conditioning malfunction); Daspit v. Swann, 436 So. 2d 606 (La. App. 1 Cir. 1983) (fire damage due to electrical malfunction).
• 6La. C.C. art. 1998; see Young v. Ford Motor Co. Inc., 595 So. 2d 1123, 1133 (La. 1992) (interpreting Article 1998 to mean that “if it can be established that the obligee intended - and if the nature of the contract supports this contention - to gratify a significant nonpecuniary interest by way of the contract, and that the obligor either knew or should have known that failure to perform would cause nonpecuniary loss to the obligee, then the requirements for recovery of nonpecuniary damages are satisfied”).
• 7La. C.C. art. 1998.
• 8Ganheart, 95-1278, 671 So. 2d 525; Thomas v. Desire Cmty. Hous. Corp., 98-2097 (La. App. 4 Cir. 07/19/00), 773 So. 2d 755, 764; Mayerhofer v. Three R’s Inc., 597 So. 2d 151 (La. App. 3rd Cir. 1992).
• 9Ganheart, 95-1278, 671 So. 2d 525 ($1,500 for plumbing problem); Gennings v. Newton, 567 So. 2d 637, 641–42 (La. App. 4 Cir. 1990) ($3,500 for lack of water and electricity); Growe v. Johnson, 2020-0143 (La. App. 4 Cir. 02/17/21), 314 So. 3d 87 ($5,000 for mold); Shubert, 30 So. 3d 977 ($15,000-$25,000 each for multiple tenants who survived fire caused by electrical defect); Clofort v. Matmoor, Inc., 370 So. 2d 1305, 1310 (La. App. 4 Cir. 1979) ($45,000 for past and future pain and suffering after tenant fell on defective stairs at leased premises).
• 10Ganheart, 671 So. 2d at 528.
• 11Nickens v. McGehee, 184 So. 2d 271, 276 (La. App. 1 Cir. 1966).

In lieu of the remedy allowing a tenant to withhold rent, Louisiana provides tenants with a repair-and-deduct remedy.1

If the landlord does not make necessary repairs to the premises after reasonable notice, the tenant can make the repairs himself and deduct the reasonable cost of the repairs from future rent due.2  In the alternative, the lessee can sue the landlord for the cost of repairs.3  This remedy 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,4  and as a defense or set-off to an ordinary action for rent.5  To succeed in any of these uses, the tenant must carefully comply with the requirements of La. C.C. art. 2694.

Because of the technical nature of the repair-and-deduct law, it is best to carefully plan this defense with the tenant before rent is withheld and the repairs 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 the tenant acted in good faith.6  A tenant’s rights under Article 2694 supersede any landlord instructions to the contrary (for example, where the landlord prohibits the tenant from making repairs). If a tenant withholds rent but does not use the money to make repairs because the landlord prohibited the tenant from making the repairs, the repair-and-deduct defense fails.7

• 1A tenant may also bring an action for money damages. See Section 11.2.3.
• 2La. C.C. art. 2694.
• 3Id.
• 4Lake 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).
• 5Brignac 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).
• 6Plunkett v. D & L Fam. Pharmacy,, 562 So. 2d 1048, 1052 (La. App. 3 Cir. 1990).
• 7Leggio, 172 So. 2d at 751.

The required elements of a repair-and-deduct remedy or defense under Article 2694 are:

1. The repairs were ones that the landlord was obligated to make.
2. The repairs were necessary.
3. The tenant called on the landlord to make repairs.
4. The landlord refused or failed to make these repairs after reasonable notice and demand.
5. The tenant made the repairs following the landlord’s refusal or failure to make them.
6. The price of the repairs was reasonable.
7. The tenant applied the cost of the repair to the payment of rent.

Although the Civil 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.1  The normal repair-and-deduct remedy would be of limited value to tenants with minimal excess cash if the law required them to perform and pay for the repairs before subtracting the cost from their rent. At least one court has held that withholding rent for the purpose of saving enough money to make a necessary repair is an affirmative defense to eviction, but the tenant must actually intend to make the repair and must make the repair in a reasonable time.2  A landlord may not prohibit a tenant from exercising the right to repair and deduct.3

• 1Rhodes v. Jackson, 109 So. 46 (La. 1926).
• 2Leggio v. Manion, 172 So. 2d 748 (La. App. 4 Cir. 1965) (14 months of withholding was not reasonable); New Hope Gardens, Ltd. v. Lattin, 530 So. 2d 1207, 1210 (La. Ct. App. 1988) (5 months of withholding led court to believe that tenants had no intent to actually make repairs).
• 3Leggio, 172 So. 2d at 751.

Proper notice and demand for the necessary repairs is absolutely essential to the perfection of a remedy or defense under Article 2694.1  If there is a written lease provision on the method of notice, that provision will govern the issue of whether adequate notice was given.2  For example, in Calderon v. Johnson, the lease stated that “notices shall be served by mailing of such notice;” the court held that although the landlord failed to receive notice of the repairs made by the tenant, the tenant complied with the terms of the lease by mailing the notice.3

In the absence of a written lease provision or other agreement, one must decide on the type of notice, whom to notify, and the length of delay before conducting repairs. Oral or written notice may be sufficient.4  However, the tenant has the burden of proving adequate notice and demand, and oral notice is difficult to prove in the face of contradictory testimony. Hence, it is preferable to use a method of notice that can be independently corroborated, such as notice by the tenant’s attorney,5  mailed written notice,6  text message, or email. 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.7

The tenant should attempt to make the demand for repairs directly on the landlord. There are several cases, including Teekell v. Drewett8  and Ellis v. Brenner,9  that seem to require that the landlord receive actual notice, which is made more difficult in the case of an absent or inaccessible landlord. However, other courts have ruled that absence of actual notice is not fatal to a repair-and-deduct claim, especially when the repair is an emergency and the landlord is inaccessible.10

Article 2694 does not indicate how long a tenant must wait before commencing repairs after proper demand on the landlord. 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.11

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.12  The court found that the high cost of repairs ($30,000+), and the business 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.

• 1See Larsen v. Otalvano, 391 So. 2d 1378 (La. App. 4 Cir. 1980).
• 2See Brignac v. Boisdore, 272 So. 2d 463, 465 (La. App. 4 Cir. 1973), aff’d, 288 So. 2d 31 (La. 1974).
• 3453 So. 2d 615 (La. App. 1 Cir. 1984).
• 4See 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).
• 5See Dickert, 231 So. 2d 633.
• 6See, e.g., DiRosa v. Bosworth, 225 So. 2d 42, 45 (La. App. 4 Cir. 1969) (mailing carries a presumption of receipt but only if there is proof of actual mailing).
• 7Lee v. Badon, 487 So. 2d 118 (La. App. 4 Cir. 1986).
• 8103 So. 2d 525 (La. App. 2 Cir. 1958).
• 934 So. 2d 633 (La. App. 2 Cir. 1948).
• 10See Barrow v. Culver Bros. Garage, 78 So. 2d 69 (La. App. 2 Cir. 1955).
• 11See, e.g., id. (lessee parking garage could not operate due to electrical defect).
• 12Davilla, 436 So. 2d 507.

Once repairs are made, a tenant may demand reimbursement or deduct from rent due.1  A tenant under a long-term lease has a right to make deductions for repairs up to the amount due under the lease.2  As a practical matter, a tenant with a month-to-month lease is probably limited to making repairs that do not exceed the monthly rent.3  However, use of Article 2694 is risky for month-to-month tenants because 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.

On July 1, 2023, Sections 26-680 and 26-681 of the New Orleans Municipal Code took effect. These sections prohibit retaliatory eviction and nonrenewal of lease if a tenant has made a repair request or complaint. The ordinance creates a rebuttable presumption of retaliation if the action for eviction or nonrenewal occurs within 6 months of a verifiable repair-related complaint.

• 1La. C.C. art. 2694.
• 2Heirs of Merilh v. Pan Am. Films, 200 So. 2d 398, 402 (La. App. 4 Cir. 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).
• 3Evan v. Does, 283 So. 2d 804, 808 (La. App. 2 Cir. 1973).

To prevail on a repair-and-deduct claim, the tenant must be able to prove that the repairs made were necessary and that the price of the repairs was reasonable. The “necessity of the repairs” should be established through the testimony of a qualified person.1  Purely cosmetic repairs are not covered by Article 2694.2

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.3  The reasonableness of the price should be proved through the testimony of a person qualified and knowledgeable in the assessment of the value of repairs.4

If a repair person or trade contractor cannot be obtained for the trial, you should attempt to introduce 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 for the repair work. Although these estimates are ordinarily inadmissible as hearsay,5  you could argue that the estimates are not being admitted for the truth of the matter asserted, but rather to show that the tenant obtained multiple estimates in order to satisfy the reasonableness requirement.

Finally, note that a tenant may be able to make a rent deduction for the value of the tenant’s own labor, if properly proved.6

• 1See, e.g., Scott v. Davis, 56 So. 2d 187 (Orl. App. 1952) (holding that production of receipted bill for automobile repairs, allegedly necessitated as the result of a collision, is not alone sufficient proof and that there must be testimony); Ermis v. Gov’t Emps. Ins. Co, 305 So. 2d 620 (La. App. 4 Cir. 1975) (holding that damage claim based on bill for medical expenses from a clinic was not proven where no doctor from the clinic testified).
• 2Pylate v. Inabnet, 458 So. 2d 1378, 1389 (La. App. 2 Cir. 1984).
• 3See, e.g., Dikert v. Ruiz, 231 So. 2d 633 (La. App. 4 Cir. 1970); Trinity Universal Ins. Co. v. Normand, 220 So. 2d 583, 586 (La. App. 3 Cir. 1969); see also Freeman v. G.T.S. Corp., 363 So. 2d 1247, 1251 (La. App. 4 Cir. 1978). But see Ducote v. Allstate Ins. Co., 242 So. 2d 103, 107 (La. App. 1 Cir. 1970) (holding that that a party’s testimony alone is insufficient to establish a claim for damages); Vezinat v. Marix, 217 So. 2d 416, 421 (La. App. 1 Cir. 1968) (same).
• 4See, e.g., Ducote, 242 So. 2d at 106; Vezinat, 217 So. 2d 416.
• 5Thompson v. Simmons, 499 So. 2d 517 (La. App. 2 Cir. 1986); Ordonez v. Md. Cas. Co., 312 So. 2d 875 (La. App. 4 Cir. 1975); Dikert, 231 So. 2d 633.
• 6Kopcso v. Alello, 32 So. 2d 99, 101 (La. App. 1 Cir. 1947) (holding that plaintiff who repaired cars professionally was entitled to his regular, reasonable charge for repairing his own vehicle). But see Lambert v. Allstate Ins. Co., 195 So. 2d 698, 702 (La. App. 1 Cir. 1967) (refusing to award plaintiffs damages for the cost of security services where they provided the service themselves).

A tenant who fails to prove one or more elements of an Article 2694 defense may nonetheless avoid eviction for nonpayment when the attempt to use the repair-and-deduct remedy was made in good faith and rent was withheld due to a genuine belief that it was not owed.1  Good faith has been found where a tenant, relying on counsel’s advice, refused to pay more than he thought was due.2

• 1Plunkett v. D & L Fam. Pharmacy, 562 So. 2d 1048, 1052 (La. App. 3 Cir. 1990) (where there was “a serious dispute here as to whether the defendant-lessee's withholding of $534.50 in rent was justified under LSA–C.C. art. 2694,” the court affirmed the trial court’s judgment that rent was owed to the Plaintiff, but reversed a the portion of the judgment terminating the lease); Brewer v. Forest Gravel Co., 135 So. 372 (La. 1931) (lease should not be canceled where “defendant has not refused arbitrarily to pay the rent, but was in good faith in refusing to pay more than he thought was due according to the advice of his counsel”).
• 2Brewer, 135 So at 373.

LUTPA prohibits “unfair and deceptive” acts or practices in the conduct of any trade or commerce.1  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.2  A practice is unfair when it offends established public policy, and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to customers.3  A practice is deceptive when it involves fraud, deceit, or misrepresentation.4  A practice does not fall under LUTPA if it is merely “disorganized and slipshod.”5

At a minimum, the victim of an unfair trade practice may recover actual damages and attorney’s fees. After notice to the Attorney General, the violator may be subjected to treble damages.6  Some courts have held that general damages are also available if there are actual damages.7  Suits with unfair trade practices claims should be filed within 1 year of the unfair practice because these claims are subject to a 1-year prescriptive period.8

In 2010, the Louisiana Supreme Court re-affirmed the broad coverage of LUTPA and affirmed that it covers parties beyond business consumers and competitors.9  The Supreme Court clarified that, “any limitation must be contained in the language of the statute.”10  Since the consumer relationship between a residential lessee and lessor is not expressly exempted from LUPTA, it should be covered.

There is a dearth of Louisiana jurisprudence on unfair trade practices in the residential landlord-tenant context. However, several courts have conducted a substantive LUTPA analysis regarding a residential lease,11  and no court has ruled that LUTPA is inapplicable to a residential lease simply because it is not commercial. 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 LUTPA.12  15 U.S.C. § 45 has been interpreted to apply to various aspects of the leasing transaction.13  In addition, it should be noted that LUTPA is identical or virtually identical to the unfair trade practices laws of many other states. Decisions from other states on statutes identical, or similar to, those of Louisiana, are persuasive authority.14  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.15

Other state courts have held a variety of landlord abuses to be unfair or deceptive trade practices:16

• Extrajudicial eviction.17
• Disconnection of utilities to evict.18
• Demand for money not owed under threat of eviction.19
• Routine filing of groundless evictions to collect debts not actually due and charging subsidized tenants more than authorized under federal law.20
• Violation of warranty of habitability.21

• 1La. R.S. 51:1405(A).
• 2La. R.S. 51:1402(9).
• 3F.T.C. v. Sperry Hutchinson Co., 405 U.S. 233 (1972); Risk Mgmt. Servs., LLC v. Moss, 09-632 (La. App. 5 Cir. 04/13/10), 40 So. 3d 176, 184–85.
• 4Moss, 09-632, 40 So. 3d at 85.
• 5Plater v. Ironwood Land Co., L.L.C., 39,085, pp. 17–18 (La. App. 2 Cir. 12/08/04), 889 So. 2d 475, 482.
• 6La. R.S. 51:1409; McFadden v. Import One, Inc., 2010-952 (La. App. 3 Cir. 02/09/11), 56 So. 3d 1212.
• 7Gandhi v. Sonal Furniture & Custom Draperies, LLC, 49959 (La. App. 2 Cir. 07/15/15), 192 So. 3d 783, 792 (damages under LUTPA include damages for mental anguish and humiliation); Bank of New Orleans & Tr. Co. v. Phillips, 415 So. 2d 973, 976 (La. App. 4 Cir. 1982) (upholding award of damages for mental anguish under LUTPA because “[h]umiliation and mental anguish are ‘real’, ‘genuine’, ‘existing in fact’, a part of ‘reality’ and ‘exist in the present’, as opposed to the future”); Laurents v. La. Mobile Homes, 96-0976 (La. App. 3 Cir. 02/05/97), 689 So. 2d 536, 542 (upholding $2,000 award for mental anguish where plaintiff’s mobile home was not delivered on the date that appeared in the parties’ contract, holding that “UTPL [LUTPA] provides for the recovery of actual damages, which include damages for mental anguish and humiliation”).
• 8The courts of appeal have held that the 1-year limitations period for LUTPA claims is peremptive. However, the Louisiana Supreme Court has not yet ruled on the issue as of this writing. See Bottinelli Real Est., L.L.C. v. Johns Manville, Inc., 2019-0619 (La. App. 4 Cir. 12/27/19), 288 So. 3d 179, 185; Glod v. Baker, 2004-1483 (La. App. 3 Cir. 3/23/05), 899 So. 2d 642, 646; 920 So. 2d 238; Kuebler v. Martin, 610 So. 2d 270, 271 (La. App. 5 Cir. 1992); Capitol House Pres. Co. v. Perryman Consultants, Inc., 98-1514 (La. App. 1 Cir. 12/10/98), 725 So. 2d 523, 526. But see Miller v. Conagra, Inc., 2008-0021 (La. 9/8/08), 991 So. 2d 445, 456 (specifically declining to rule on the question).
• 9Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633, pp. 7–8 (La. 4/23/10), 35 So. 3d 1053, 1058 (citing La. R.S. 51:1409(A) and holding that “the courts decide, on a case-by-case basis, what conduct constitutes a violation of the statute”).
• 10Id. at 1058.
• 11La. R.S. 51:1401, et seq.; see Plater v. Ironwood Land Co., L.L.C., 39,085, p. 17–18 (La. App. 2 Cir. 12/08/04), 889 So. 2d 475, 482 (affirming the trial court’s holding that LUTPA was inapplicable, though not on grounds that lease was not commercial but rather because the tenant’s showing that the lessor’s business practices were “disorganized and slipshod” was insufficient evidence of unfair trade practices); Scott v. MAC-RE, LLC, 16-224 (La. App. 3 Cir. 02/08/17), 211 So. 3d 693, 699 (affirming judgment in favor of landlord where tenant brought wrongful eviction and LUTPA claims, but court determined tenant abandoned premises; court denied attorney fees to landlord under LUTPA finding tenant’s claim was not in bad faith). But see Webb v. Theriot, 97-624, p. 13 (La. App. 3 Cir. 10/29/97), 704 So. 2d 1211, 1215 (stating that “we do not find that the lease and sublease of the hunting property and camp fall within the definition of ‘trade’ or ‘commerce’” for the purpose of LUTPA liability). Note that Webb is pre-Cheramie.
• 12Moore v. Goodyear Tire & Rubber Co., 364 So. 2d 630, 633 (La. App. 2 Cir. 1978); Guste v. Demars, 330 So. 2d 123 (La. App. 1 Cir. 1976).
• 13See, e.g., In re Hallmark Grp. Cos., 84 F.T.C. 1 (1974); LaPeyre v. F.T.C., 366 F. 2d 117 (5th Cir. 1966).
• 14Fontenot v. N.Y. Life Ins. Co., 357 So. 2d 1185 (La. App. 3 Cir. 1978).
• 15See, e.g., Commonwealth v. Monumental Props, 329 A.2d 812 (Pa. 1974); Commonwealth v. DeCotis, 316 N.E.2d 48748 (Mass. 1994); Commonwealth v. Isaacs, 577 S.W. 2d 617 (Ky. 1979).
• 16For more examples of the application of unfair trade practice laws to landlord-tenant practices, see Nat’l Consumer L. Ctr., Unfair and Deceptive Acts and Practices (10th ed. 2021), https://library.nclc.org/udap (paywalled).
• 17Mosley & Mosley Builders v. Landin, Ltd., 389 S.E.2d 576 (N.C. Ct. App. 1990); Dadonna v. Liberty Mobile Home Sales, Inc., 550 A.2d 1061, 1068 (Conn. 1988).
• 18Shepard v. Bonita Vista Props. LP, 664 S.E.2d 388 (N.C. Ct. App. 2008), aff’d 675 S.E.2d 332 (N.C. 2009).
• 19Stringer v. Perales, No. 01-02-00281-CV, 2003 WL 1848594 (Tex. Ct. App. 2003).
• 20Travieso v. Gutman, Mintz, Baker & Sonnenfeldt, 94 CV 5756, 1995 WL 704778 (E.D.N.Y. Nov. 16, 1995).
• 21Haddad v. Gonzalez, 576 N.E.2d 658 (Mass. 1991).

The federal Fair Debt Collection Practices Act (FDCPA)1  prohibits debt collectors from harassing or abusive communication with a consumer.2  It also prohibits a debt collector from making false or misleading representations about a debt.3  Within 5 days of communication with a consumer about a debt, the debt collector must send written notice detailing the debt.4  If the consumer disputes the debt, the debt collector must cease collection and verify the debt.5

The FDCPA does not apply to landlords who are attempting to collect from their own tenants,6  but may apply where a landlord uses a name other than his own to collect his own debt.7  However, it does apply to attorneys and collection agencies who attempt to collect debts for landlords.8  Some unfair debt collection practices are:

• Suit filed by debt collection agency against tenant for back rent, where debt collection agency did not own the debt, nor was it authorized to practice law in the state.9
• Communication by law firm that if a tenant signs a stipulation (consent judgment) to move by a certain date the eviction will be dismissed, and then failure to dismiss the eviction.10
• Demand for payment of amounts not authorized or due.11
• Utility shutoffs and lockouts seeking to force a tenant to pay rent in violation of bankruptcy stay.12
• Seizure of tenant’s property without valid lien.13
• Telephone or phone harassment, entry of premises to collect rent.14

• 115 U.S.C. § 1692, et seq.
• 215 U.S.C. §§ 1692c–1692d.
• 315 U.S.C. § 1692e.
• 415 U.S.C. § 1692g.
• 5Id.
• 6Carter v. Tacony Crossing 2021 LLC, No. 22-CV-4941, 2023 WL 2025037, at *3 (E.D. Pa. Feb. 15, 2023) (collecting cases).
• 715 U.S.C. § 1692a(6); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232 (5th Cir. 1997); Brown v. Crawford, No. 3-07-CV-1930-M, 2008 WL 508390, at *3 (N.D. Tex. Feb. 25, 2008) (“Defendant, who is a landlord attempting to collect a debt owed by her tenants, does not meet the statutory definition of a ‘debt collector.’”).
• 8Goldstein v. Hutton Ingram, 374 F.3d 56 (2d Cir. 2004) (attorney’s 3-day notice demanding rent or departure); Romea v. Heiberger Assocs., 163 F. 3d 111 (2d Cir. 1998) (rent demand notice by attorney as predicate to eviction).
• 9Poirier v. Alco Collections, Inc., 107 F.3d 347, 350 (5th Cir. 1997).
• 10Warden v. Tschetter Sulzer, P.C., No. 122CV00271CNSNRN, 2022 WL 17416732 (D. Colo. Dec. 5, 2022) (denying landlord’s motion to dismiss).
• 1115 U.S.C. § 1692f(1); McGrath v. Mishara, 434 N.E.2d 1215 (Mass. 1982) (under state statute); Hodges v. Sasil Corp., 915 A.2d 1 (N.J. 2007). But see Ducrest v. Alco Collections, Inc., 931 F. Supp. 459, 462 (M.D. La. 1996) (attorney not liable under FDCPA where inaccurate amount listed based on client landlord’s representation, and therefore misrepresentation was not knowing or intentional).
• 12In re Aponte, 82 B.R. 738 (Bankr. E.D. Pa. 1988) (under state statute) (subsequent court declined to follow on other grounds).
• 13Clarkson v. DeCaceres, 105 B.R. 266 (Bankr. E.D. Pa. 1989) (under state law).
• 14Id.

Denial of a lease because of a credit report or a tenant screening report is an adverse action under the Fair Credit Reporting Act.1  The tenant must be given notice of the adverse action and an opportunity to dispute inaccurate or incomplete information.2

Since 2021, a Louisiana landlord may not charge an application fee unless, prior to accepting payment, the landlord notifies the applicant of the right to submit a financial hardship statement explaining that the applicant has experienced financial hardship resulting from a state or federally declared disaster or emergency and how that hardship has impacted the applicant’s credit, employment, or rental history. The notice must reference COVID-19 and hurricanes.3  However, tenants have no cause of action against a landlord who violates the law.4  This seems to leave only the option of a consumer complaint to the Attorney General’s office.

• 1See Cotto v. Jenney, 721 F. Supp. 5 (D. Mass. 1989).
• 2See 15 U.S.C. § 1681, et seq.
• 3La. R.S. 9:3258.1.
• 4La. R.S. 9:3258.1(D).

A tenant must give the landlord timely notice of lease termination. The notice of lease termination informs the landlord of the tenant’s intent not to renew the lease and theoretically allows the landlord to prepare for a new tenant in order to minimize loss or “damage.” Notice by mail should be sufficient unless the lease or other agreement requires otherwise.1  Testimony that the tenant (or other person) personally mailed the notice, postage prepaid, properly addressed, and that the letter was not returned, creates a presumption that the landlord received the notice.2

Prior to the enactment of La. R.S. 9:3251(C), an inadequate notice of lease termination was merely viewed as a breach of a lease obligation. It did not preclude recovery of a security deposit unless the landlord incurred actual damage from such default.3  However, 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 lease termination.4  In Low v. Bologna, the court found that the tenants 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.5

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 termination. An arguably defective notice of termination may be overcome in certain circumstances. For example, waiver of a notice requirement or mutual cancellation of the lease, if provable, should remove any La. R.S. 9:3251(C) bar to security deposit recovery.6  Presumably, midterm cancellation of the lease for legal cause, such as breach of the warranty of habitability or constructive eviction, would also relieve the tenant from the notice requirements of La. R.S. 9:3251(C).7  Surrender of possession without written notice to the landlord at “the time at which the notice of termination shall be given under Article 2728” constitutes sufficient notice.8  Thus, for example, if a month-to-month tenant surrenders possession 10 calendar days before the end of the rental month, the surrender is sufficient notice without a need for written notice.

• 1Moore v. Drexel Homes, Inc., 293 So. 2d 500 (La. App. 4 Cir. 1974).
• 2See, e.g., id. at 502–04.
• 3See, 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).
• 4Low v. Bologna, 2008-2578 (La. App. 1 Cir. 06/19/09), 11 So. 3d 1246 (table; Mays v. Alley, 599 So. 2d 459 (La. App. 2 Cir. 1992); see also 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) inapplicable and would not bar recovery of the security deposit under the contractual cause of action.
• 5Low, 2008-2578; 11 So. 3d 1246.
• 6Cf. 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. C.C. arts. 1983, 2045–2046.
• 7Cf. Nash v. LaFontaine, 407 So. 2d 783 (La. App. 4 Cir. 1981); see also La. C.C. arts. 2714–2719.
• 8See La. C.C. art. 2729.

A landlord may argue abandonment of the unit by a tenant before the end of the current lease term as a defense to a security deposit lawsuit.1  In Curtis v. Katz, the court held that living at a new apartment prior to the expiration of the lease did not constitute abandonment where the tenant retained the key and kept some property at the old apartment until the lease expired.2  The court defined “abandonment” as the voluntary relinquishment of the apartment with the intent of terminating possession and without vesting ownership in any other person. Where a tenant gives the landlord notice of lease termination, but leaves the premises prior to the termination and fails to pay rent for the remainder of the lease period, the tenant is not entitled to the return of the security deposit.3

What if a tenant places a deposit, but does not move in? The Lessee’s Deposit Act may or may not apply to leases that are rescinded prior to a tenant taking possession. Some courts have read the Lessee’s Deposit Act as being intended to apply when a lease terminates, but not when is has been rescinded or abandoned.4  Ultimately, this will depend on the court that you are in as the circuits are split on this issue. 

For instance, in Mayeaux v. Christakis, the court held that the Lessee’s Deposit Act did not apply when both parties mutually rescinded their lease.5  There, the defendant never received keys and the landlord had verbally agreed to give back both security deposit and first month’s rent after a job fell through such that the tenant was no longer able to move into the apartment as originally planned. The court also noted here that the lease was rescinded when the landlord quickly leased the property to a new tenant. The court ultimately held that the parties mutually rescinded the lease and so the Lessee’s Deposit Act did not apply.

On the other hand, in Barnes v. Smith, 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.6  The court treated the case as a security deposit case and ordered the return of entire deposit upon finding that the landlord failed to prove any damages when the tenants paid their deposit on Saturday, changed their minds on Monday, and the apartment was not available to anyone until Friday.

• 1Hood v. Ashby P’ship, 446 So. 2d 1347 (La. App. 1 Cir. 1984) (holding that the statute simply required a tenant to abide by the lease terms).
• 2Curtis v. Katz, 349 So. 2d 362 (La. App. 4 Cir. 1977).
• 3Borne v. Wilander, 509 So. 2d 572 (La. App. 3 Cir. 1987).
• 4Mayeaux v. Christakis, 619 So. 2d 93, 97 (La. App. 5 Cir. 1993).
• 5619 So. 2d 93.
• 606-42180 (La. App. 2 Cir. 05/16/07), 957 So. 2d 381.

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.1  The landlord has the burden of proving reconduction in this situation.2  Occupancy of the apartment for one week or less after the expiration of the lease would not constitute reconduction.3  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.4  Landlords also often claim an additional month’s rent if the tenant does not return the keys prior to or on the date the lease ends.5

• 1Ball v. Fellom, 406 So. 2d 781 (La. App. 4 Cir. 1981). For additional discussion of reconduction, see Section 10.6.
• 2Talambas v. La. State Bd. of Educ., 401 So. 2d 1051 (La. App. 3 Cir. 1981).
• 3Ball, 406 So. 2d 781; Misse v. Dronet, 493 So. 2d 271 (La. App. 3 Cir. 1986); Baronne St. Ltd. v. Pisano, 526 So. 2d 345 (La. App. 4 Cir. 1988).
• 4Sciacca v. Ives, 952 So. 2d 762 (La. App. 4 Cir. 2007); McGrew v. Milford, 255 So. 2d 619 (La. App. 4 Cir. 1971).
• 5See, e.g., Simkin v. Vinci, 215 So. 2d 404 (La. App. 4 Cir. 1968).

A landlord may retain the portion of the security deposit that is reasonably necessary to remedy unreasonable wear to the premises. Tenants are never responsible for reasonable wear, damage that pre-existed the lease, damage that was not their fault, or repairs that are the landlord’s responsibility.1  “Reasonable wear and tear” is a factual determination for the trial court.2  The length of time the tenant has lived in the unit is an important consideration in the determination whether something is attributable to reasonable wear and tear or tenant-fault damage.3  If the tenant has caused damage for which the tenant is at fault, a landlord who willfully fails to return the security deposit could file a reconventional demand for damages to the premises and be successful in that claim.4

Only the amount necessary to repair the damage may be withheld. For instance, 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 damage could be repaired for $50. The court ordered the deposit, minus $50, refunded to the tenant.5

The doctrine of res ipsa loquitur cannot be used to prove that the damage was caused by the tenant’s negligence.6  Once the landlord has established proof of damage, the tenant has the burden of showing that the damages occurred prior to the lease’s commencement or occurred without the fault of the tenant or of an individual was present on the premises with the tenant’s permission.7  The burden then shifts back to the landlord to show that the damage was caused by the tenant’s fault.8

• 1See 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).
• 2Provosty, 350 So. 2d 1239; Lugo, 336 So. 2d 972.
• 3O’Brien v. Becker, 332 So. 2d 563, 564 (La. App. 4 Cir. 1976) (noting that the lessor attempted to recover the cost of painting materials, which could not reasonably be considered as “unusual wear” after over four years of occupancy and concluding that the damage penalty against the landlord was properly imposed).
• 4Nwokolo v. Torrey, 31,412 (La. App. 2 Cir. 01/20/99), 726 So. 2d 1055. In Nwokolo, the tenants sued for a return of their security deposit and statutory damages, and the landlord filed a reconventional demand for damages to the leased premises. Both parties prevailed on their claims, and the amount recovered by the tenants was almost equal to the amount awarded to the landlord. The court held that neither party was entitled to attorney fees and split the costs equally between the parties.
• 5Vinson v. Henley, 38,006 (La. App. 2 Cir. 01/28/04), 864 So. 2d 894.
• 6Calix v. Whitson, 306 So. 2d 62 (La. App. 4 Cir. 1977).
• 7Daigle v. Melancon, 442 So. 2d 657 (La. App. 1 Cir. 1983).
• 8Perroncel 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); 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) (holding that there must be a showing of some fault on tenant’s part).

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.1

• 1La. R.S. 9:3252(B).

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 personal actions.1

• 1See La. C.C. art. 3499.

A security deposit is the tenant’s property.1  Therefore, the burden of proof is on the landlord to show cause for the retention of the tenant’s deposit (property). In reality, however, a tenant’s success in recovering a security deposit depends heavily on the tenant’s ability to dispute the landlord’s retention with reliable evidence.

• 1In re Universal Sec. & Protection Serv., Inc., 223 B.R. 88, 93 (E.D. La. 1998); cf. La. C.C. art. 2926.

In a Chapter 13 bankruptcy, the tenant’s security deposit claim should be a priority claim.1  Generally, all priority claims must be paid in a Chapter 13 bankruptcy. A tenant should consider filing an objection to a Chapter 13 plan if it proposes to pay less than 100% of the claim for the deposit.

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.2  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. Although a Chapter 7 bankruptcy will discharge the debt, it is possible that a tenant’s judgment lien, if any, will survive the bankruptcy.

• 1Guarracino v. Hoffman, 246 B.R. 130 (D. Mass. 2000).
• 2In re Universal Sec. & Protection Serv., Inc., 223 B.R. 88, 93 (Bankr. E.D. La. 1998).

The Fair Housing Act prohibits discrimination in transactions involving “dwellings.”1  “Dwelling” includes any building occupied or intended to be occupied as a residence. In addition to houses and apartments, courts have held the following to be dwellings: mobile home parks,2  trailer courts,3  condominiums,4  summer homes,5  motels providing long-term shelter to homeless,6  homes for AIDS patients,7  group homes,8  shelters and transitional housing,9  and timeshares.10  Boarding houses, dormitories, and all other facilities whose occupants remain for more than a brief period are presumably covered as “dwellings” under the Act.

• 142 U.S.C. § 3602(b).
• 2United States v. Warwick Mobile Home Estates, 537 F.2d 1148 (4th Cir. 1976).
• 3Stewart v. Furton, 774 F.2d 706 (6th Cir. 1985).
• 4Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979).
• 5United States v. Columbus Country Club, 915 F.2d 877 (3d Cir. 1990).
• 6Red Bull Assocs. v. Best W. Int’l, 686 F. Supp. 447 (S.D. N.Y. 1988). But see Johnson v. Dixon, 786 F. Supp. 1 (D.D.C. 1991).
• 7Baxter v. City of Belleville, 720 F. Supp. 720 (S.D. Ill. 1989).
• 8H.R. Rep. No. 100-711, at 24 (1988).
• 9Doe v. City of Butler, 892 F. 2d 315 (3d Cir. 1989).
• 10La. ACORN Fair Hous. v. Quarter House, 952 F. Supp. 352 (E.D. La. 1997).

Certain dwellings are exempt from FHA coverage. The most common exemption is an owner’s sale or rental of a single-family home, provided that the owner does not own more than 3 single-family homes.1  Also, the exemption has numerous exceptions,2  including that a four-plex is not a ‘‘single family home.”3  Even if the owner is exempt, the owner’s broker is not if the broker’s conduct violates the FHA.

Other exempt dwellings include owner-occupied buildings with no more than 4 units,4  religious organizations’ noncommercial dwellings, and private clubs’ incidental noncommercial lodgings. Housing for “older persons” is exempt from the FHA for purposes of the prohibition against discrimination on the basis of familial status, but not on other grounds.5

A defendant must plead and prove an FHA exemption as an affirmative defense.6  Exemptions are strictly construed.7  A landlord exempted under § 3603 may still be liable for racial discrimination under 42 U.S.C. §§ 1981–1982.

• 142 U.S.C. § 3603(b)(1). The exemption does not apply to discriminatory advertising. 42 U.S.C. §§ 3603(b), 3604(c).
• 2See, e.g., Dillon v. AFBIC Dev., 597 F.2d 556, 561 (5th Cir. 1979).
• 3Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003).
• 442 U.S.C. § 3603(b)(2).
• 542 U.S.C. § 3607(b)(2)–(3).
• 6United States v. Columbus Country Club, 915 F. 2d 877, 885 (3d Cir. 1990).
• 7Singleton v. Gendason, 545 F. 2d 1224, 1227 (9th Cir. 1976).

Examples of familial status discrimination include policies that unreasonably restrict the number of people per bedroom,1  segregating families with children within a complex,2  prohibiting children from playing in common areas,3  refusing to rent out of concern that the property would pose danger to children,4  and making statements that indicate a preference or discrimination based on familial status.5

There are two major situations in which conduct that would otherwise discriminate on the basis of familial status will not violate the FHA. First, housing for “older persons” is exempted from the FHA prohibitions against familial status discrimination.6  Second, 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. For instance, an apartment complex’s one-person/one-bedroom, two-person/two-bedroom restrictions have been held to violate the FHA.7  HUD’s rule of thumb is that occupancy limits of two persons per bedroom are presumptively reasonable, but HUD has also provided guidance on factors that may warrant deviation from the two person per bedroom standard.8

• 1Glover v. Crestwood Lake Section 1 Holding Corp., 746 F. Supp. 301 (S.D.N.Y. 1990); Fair Hous. Council v. Ayres, No. SACV 93-149, 1994 WL 278535 (C.D. Cal. June 16, 1994); Hillcroft Partners v. Comm’n on Hum. Rts., 533 A.2d 852 (Conn. 1987).
• 224 C.F.R. 100.70(c)(4).
• 324 C.F.R. 100.65(b)(4).
• 4United States v. Grishman, 818 F. Supp. 21 (D. Me. 1993).
• 5White v. HUD, 475 F.3d 898 (7th Cir. 2007).
• 642 U.S.C. § 3607(b)(1)–(3). Detailed HUD regulations on this exemption are found at 24 C.F.R. § 100.300.
• 7United States v. Badgett, 976 F.2d 1176 (8th Cir. 1992).
• 863 Fed. Reg. 70,256 (Dec. 18, 1998).

For FHA purposes, a disability is (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of having such impairment; or (3) being regarded as having such an impairment. This definition is virtually identical to that under § 504 of the Rehabilitation Act of 1973. Congress intended interpretations that are consistent with interpretation under § 504.1  The disability discrimination provisions also protect persons residing or associating with people with disabilities, e.g., parents, children, spouses, roommates, etc. Current illegal users of alcohol or a controlled substance are excepted from the definition of disability; alcoholism and substance abuse disorders are considered disabilities if not accompanied by current illegal use.2

The constitutionality of the FHA’s prohibition of disability discrimination has been upheld by the courts.3  Examples of disability discrimination include: inquiries about disability or nature/severity;4  eviction of tenant with mental disability without making reasonable efforts to accommodate;5  eviction of tenant with disability for criminal activity or property damage without individualized assessment of whether reasonable accommodations would acceptably minimize risk to others;6  eviction for fire hazards without helping tenant get rid of problem;7  eviction of elderly tenants or tenants with disabilities for poor housekeeping;8  no pets rule as to tenant with mental disabilities who needed companionship of dog;9  refusal to waive guest fees for medical care required by tenant with disabilities;10  refusal to give a co-op resident with disabilities a ground floor parking space;11  HUD’s refusal to transfer Section 8 tenants with disabilities to accessible housing;12  and refusal to allow an indigent person with AIDS to reside in an apartment rented for him by his financially qualified mother.13

Tenants with disabilities must be allowed, at their own expense, to make any reasonable modifications necessary for full enjoyment of premises, i.e., the unit, lobbies, main entrances, common areas, etc.14  Landlord does not have absolute right to reject modifications but may condition approval of unit modification on restoration agreement.

Housing providers must make reasonable accommodations in rules, policies, practices, or services necessary to afford persons with disabilities “equal opportunity to use and enjoy a dwelling.”15  The accommodation must be allowed 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 reasonable accommodations that provides helpful guidance.16  Examples of required accommodations include (1) allowing a service animal for a blind tenant, (2) reserving a parking place for a tenant who uses a wheelchair, and (3) waiving rules to allow a tenant with disabilities to have a live-in aide. In addition to giving rise to an affirmative claim, failure to accommodate can be an affirmative defense to eviction.17

• 1The 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).
• 2Oxford House Inc. v. Town of Babylon, 819 F. Supp. 1179 (E.D. N.Y. 1993) (people recovering from alcoholism and substance abuse disorders); United States v. S. Mgmt. Corp., 955 F. 2d 914 (4th Cir. 1992) (people recovering from substance abuse disorders).
• 3See Groome Res. Ltd. v. Par. of Jefferson, 234 F.3d 192 (5th Cir. 2000).
• 424 C.F.R. § 100.202(c); Cason v. Rochester Hous. Auth., 748 F. Supp. 1002 (W.D.N.Y. 1990) (holding that PHA can’t inquire into applicant’s ability to live independently).
• 5Roe v. Sugar Mill Assocs., 820 F. Supp. 636 (D.N.H. 1993); Citywide Assocs. v. Renfield, 564 N.E. 2d 1003 (Mass. 1991).
• 6Boston Hous. Auth. v. Bridgewaters, 898 N.E.2d 848 (Mass. 2009) (holding that housing authority must show that no reasonable accommodation would minimize risk mentally ill tenant poses to others); Renewal Homes v. Laneheart, 2017-0199 (La. App. 4 Cir. 10/18/17), 316 So. 3d 936 (affirming dismissal of eviction where tenant with schizoaffective disorder caused damage to the unit due to her disability, and landlord failed to reasonably accommodate her). But see Hous. Auth. of the City of Lake Charles v. Pappion, 540 So. 2d 567 (La. App. 3 Cir. 1989) (§ 504 case).
• 7Schuell Inv. Co. v. Anderson, 386 N.W. 2d 249 (Minn. Ct. App. 1986).
• 8Rutland Court Owners, Inc. v. Taylor, 997 A.2d 706 (D.C. 2010).
• 9Majors v. Hous. Auth. of the Cnty. of Dekalb, 652 F. 2d 454 (5th Cir. 1981); Whittier Terrace Assocs. v. Hampshire, 532 N.E.2d 712 (Mass. Ct. App. 1989).
• 10United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413 (9th Cir. 1994).
• 11Shapiro v. Cadman Towers, Inc., 51 F. 3d 328 (2d Cir. 1995) (granting preliminary injunction).
• 12Liddy v. Cisneros, 823 F. Supp. 164 (S.D.N.Y. 1993) (denying HUD’s motion to dismiss).
• 13Giebeler v. M & B Assocs., 343 F.3d 1143 (9th Cir. 2003).
• 1442 U.S.C. § 3604(f)(3)(A); 24 C.F.R. § 100.201.
• 1542 U.S.C. § 3604(f)(3)(B).
• 16Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations under the Fair Housing Act (May 17, 2004).
• 17Renewal Homes, 2017-0199, 316 So. 3d 936.

Examples of prohibited sex discrimination include refusal to rent to single women or working mothers,1  discounting woman’s income in evaluating family’s ability to pay for housing,2  discounting alimony or child support payments,3  sexual harassment (both “quid pro quo” and “hostile environment” harassment),4  and eviction of a domestic violence survivor.5

Whether the FHA extends to discrimination on the basis of sexual orientation or gender identity is a somewhat open question. In 2020, the U.S. Supreme Court held that firing individuals based on their sexual orientation or gender identity violated Title VII’s prohibition on discrimination based on sex.6  Federal courts often apply Title VII jurisprudence to analysis under the FHA.7  As of the time of this writing at least two federal district courts have “assumed” that “sex” under the FHA includes sexual orientation and gender identity.8  In February 2021, HUD issued a memorandum concluding that FHA prohibitions on sex discrimination extend to discrimination because of sexual orientation and gender identity.9

• 1Morehead v. Lewis, 432 F. Supp. 674 (N.D. Ill. 1977), aff’d, 594 F. 2d 867 (7th Cir. 1979).
• 2Normal v. St. Louis Concrete Pipe Co., 447 F. Supp. 624 (E.D. Mo. 1978).
• 3United States v. Reece, 457 F. Supp. 43 (D. Mont. 1978).
• 424 C.F.R. §100.600; Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010); United States v. Presidio Invs., Ltd., 4 F. 3d 805 (9th Cir. 1993); Honce v. Vigil, 1 F. 3d 1085 (10th Cir. 1993); Chomicki v. Wittekind, 381 N.W.2d 561 (Wis. Ct. 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 and refused repairs after female tenant refused sex); Genere v. Mass. Comm’n Against Discrimination, 524 N.E.2d 84 (Mass. 1988) (landlord made offensive sexual comments, but never demanded sex or threatened adverse action).
• 5Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005).
• 6Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
• 7Holt v. JTM Indus., 89 F.3d 1224, 1229 (5th Cir. 1996) (recognizing strong similarities between the language of Title VII and Title VIII/FHA).
• 8Birdo v. Duluky, No. 20-CV-1108 (SRN/HB), 2020 WL 5549115, at *3 (D. Minn. Aug. 27, 2020), report and recommendation adopted, No. 20-CV-1108 (SRN/HB), 2020 WL 5545271 (D. Minn. Sept. 16, 2020); Scutt v. Dorris, No. CV 20-00333 JMS-WRP, 2020 WL 7344595, at *4 (D. Haw. Dec. 14, 2020).
• 9Memo from Jeanine M. Worden, Acting Asst. Sec’y for Fair Hous. & Equal Opportunity, U.S. Dep’t of Hous. & Urb. Dev., to Off. of Fair Hous. & Equal Opp., Fair Hous. Assistance Program Agencies, & Fair Hou. Initiatives Program Grantees, Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act (Feb. 11, 2021).

Examples of racial discrimination actionable under the FHA include: delayed action on minority couple’s apartment application;1  refusal to show available apartments;2  “grudging” sales techniques;3  showing Black applicants fewer units and quoting them higher rents and later dates of availability;4  requirements that minority applicants be approved or recommended by current tenants or other neighbors;5  sales person’s influence of customer’s decision on racial grounds;6  refusal to amend zoning ordinance to allow construction of multifamily housing outside of urban renewal area;7  closing private road to Black neighbor but allowing whites to use it;8  providing poorer services over time period when white tenants being replaced by Black tenants;9  substandard conditions in public housing developments;10  poorer municipal services for Blacks;11  false representation of unavailability;12  vandalism of new Black resident’s property by white neighbor;13  intimidation tactics by local resident to discourage Jews from moving into town;14 and operation of segregated public housing and Section 8 housing programs in metropolitan area.15

• 1Davis v. Mansards, 597 F. Supp. 334 (N.D. Ind. 1984).
• 2Bradley v. John M. Brabham Agency, Inc., 463 F. Supp. 27 (D.S.C. 1978).
• 3United States v. Pelzer Realty Co., Inc., 484 F. 2d 438 (5th Cir. 1973).
• 4United States v. Balestrieri, 981 F. 2d 916 (7th Cir. 1992).
• 5Robinson v. 12 Lofts Realty, Inc., 610 F. 2d 1032 (2d Cir. 1979); Grant v. Smith, 574 F. 2d 252 (5th Cir. 1978).
• 6Zuck v. Hussey, 394 F. Supp. 1028 (E.D. Mich. 1975), aff’d, 547 F.2d 1168 (6th Cir. 1977).
• 7Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff’d, 488 U.S. 15 (1988) (per curiam).
• 8Evans v. Tubbe, 657 F.2d 661 (5th Cir. 1981).
• 9Concerned Tenants Ass’n v. Indian Trails Apartments, 496 F. Supp. 522 (N.D. Ill. 1980).
• 10Durrett v. Hous. Auth. of the City of Providence, 896 F.2d 600 (1st Cir. 1990).
• 11Campbell v. City of Berwyn, 815 F. Supp. 1138 (N.D. Ill. 1993); cf. United Farm Workers of Fla. Hous. Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974).
• 12Havens Realty Co. v. Coleman, 455 U.S. 363 (1982).
• 1342 U.S.C. § 3617; Stackhouse v. DeSatter, 620 F. Supp. 208 (N.D. Ill. 1985); see also Sofarelli v. Pinellas Cnty., 931 F. 2d 718 (11th Cir. 1991) (neighbors’ threats, obscenities, spitting).
• 14LeBlanc-Steinberg v. Fletcher, 781 F. Supp. 261 (S.D.N.Y. 1991).
• 15Walker v. HUD, 912 F.2d 819 (5th Cir. 1990).

A private plaintiff may bring a lawsuit under the FHA in any appropriate U.S. district court or state court of general jurisdiction. A federal court may hear related state law claims under supplemental jurisdiction.1

• 128 U.S.C. § 1367(a).

Private civil actions must be filed no later than 2 years after the occurrence or termination of the discriminatory practice.1  HUD administrative complaints may interrupt or toll the statute of limitations. Claims under 42 U.S.C. §§ 1981 have a 4-year statute of limitations.2  Claims under 42 U.S.C. § 1982 have a 1-year statute of limitations.3  Claims under the Louisiana Open Housing Act are subject to a 2-year statute of limitations.4

• 142 U.S.C. § 3613(a)(1)(A).
• 2Jones v. R.R. Donnelly & Sons, 541 U.S. 369 (2004); see 28 U.S.C. § 1658.
• 3See Goodman v. Lukens Steel Co., 482 U.S. 656, 660–62 (1987); Bradley v. Carydale Enters., 707 F. Supp. 217, 220 (E.D. Va. 1989).
• 4La. R.S. 51:2613. Many subsidized housing leases will have a contract provision whereby the landlord agrees not to unlawfully discriminate. Contract claims are subject to a 10-year prescriptive period in Louisiana. However, the courts will probably apply the shorter statute of limitations for FHA violations (1, 2, or 4 years as applicable), torts (1 year), and crimes of violence (2 years). See, e.g., Sterling v. Urban Prop. Co., 562 So. 2d 1120 (La. App. 4 Cir. 1990).

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 integrated society.1

• 1Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109 (1979).

FHA plaintiffs are entitled to jury trials in federal lawsuits for damages.1  Jury trials are also available for 42 U.S.C. §§ 1981–1982 actions.2

• 1Curtis v. Loether, 415 U.S. 189, 192 (1974).
• 2Thronson v. Meisels, 800 F.2d 136 (7th Cir. 1986).

Because discriminatory housing practices constitute irreparable injury,1  preliminary injunctions are available under the FHA. Preliminary injunctions may be consolidated with the trial on the merits.2  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.

If a state court eviction action is currently pending, injunctive relief may be barred by the Anti-Injunction Act.3

• 1Gresham v. Windrush Partners, Inc., 730 F.2d 1417, 1423–24 (11th Cir. 1984).
• 2Fed. R. Civ. P. 65.
• 3For further discussion of the Anti-Injunction Act in the context of eviction defense, see Section 8.2.2.

Res judicata and collateral estoppel issues may arise when the landlord has obtained an eviction judgment. In Miller v. Hartwood Apartments, the court held that a Mississippi eviction court judgment did not bar the federal court litigation of a § 1983 claim because the tenants’ constitutional claims could not have been litigated in the eviction lawsuit.1  While Louisiana tenants’ damage claims (under civil rights law or otherwise) cannot be litigated in summary eviction proceedings, discrimination can be asserted as an eviction defense in Louisiana.2  However, if an eviction is brought as an ordinary action, failure to raise a damages claim in a reconventional demand may act as res judicata.3

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.4

The Rooker-Feldman doctrine may also bar an FHA suit.5

• 1689 F.2d 1239 (5th Cir. 1982). Where a state court procedure permits counterclaims for equitable or monetary relief in an eviction, the eviction judgment may constitute res judicata. See, e.g., Poindexter v. Allegheny Cnty. Hous. Auth., 329 F. App’x 347 (3d Cir. 2009).
• 2Mascaro v. Hudson, 496 So. 2d 428 (La. App. 4 Cir. 1986); Renewal Homes v. Laneheart, 2017-0199 (La. App. 4 Cir. 10/18/17), 316 So. 3d 936.
• 3Lafreniere Park Found. v. Broussard, 221 F.3d 804 (5th Cir. 2000).
• 4If the eviction court overrules the exception of lis pendens, a supervisory writ is available. See Dean v. Delacroix Corp., 2003-1352 (La. App. 4 Cir. 08/27/03), 853 So. 2d 769. However, because of the typical speed of summary eviction proceedings in which the court may overrule the exception and then immediately (i.e., at the same hearing) proceed to a trial on the merits. You should ask the court to stay the merits trial for a brief period to allow you to apply for a supervisory writ, but should also be prepared to go forward with the merits trial if the court refuses.
• 5For more detailed discussion of the Rooker-Feldman doctrine in housing cases, see Section 8.2.3.

There are 2 types of claims under the FHA: (1) disparate treatment and (2) discriminatory impact or effect. The proof required depends on the type of claim.

Rarely will a landlord expressly announce a discriminatory intent before engaging in disparate treatment (i.e., intentional discrimination), so an advocate must use alternate avenues of proof, typically through the burden-shifting framework common to discrimination law.

In the FHA context, this framework first requires a plaintiff who has been denied housing to make out a prima facie case.1  The required elements are (1) membership in a protected class; (2) actual application2  for a unit for which the plaintiff was qualified to rent or purchase;3  (3) rejection by the defendant; and (4) the continued availability of the unit thereafter.4  The defendant must then show a legitimate nondiscriminatory reason 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.5  For information on testing services that may be available in your area, contact the Louisiana Fair Housing Action Center, Ph. (504) 596-2100.

In mixed motive cases, the housing decisions are based only in part on a prohibited motive. All federal courts of appeals have held that the FHA is violated even if race is just one of the motivating factors.6

• 1See, e.g., HUD ex rel. Herron v. Blackwell, 908 F.2d 864, 870–71 (11th Cir. 1990).
• 2An application may be unnecessary under the futile gesture doctrine. Punchback v. Armistead Homes Grp., 907 F.2d 1447 (4th Cir. 1990).
• 3Plaintiff should be financially qualified for the unit.
• 4Testers can be used to prove this element.
• 5Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
• 6See, e.g., Payne v. Bracher, 582 F.2d 17, 18 (5th Cir. 1978); HUD v. Denton, FH-FL Rptr. 25,024, 1992 WL 406537 (HUD ALJ 1992). 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).

There have been two broad types of discriminatory effect cases: (1) perpetuation of segregation (e.g., Huntington Branch, NAACP v. Town of Huntington)1  and (2) discriminatory impact (Betsey v. Turtle Creek Associates).2

In 2015, the U.S. Supreme Court affirmed that disparate impact claims are cognizable under the Fair Housing Act.3  In its decision, the Court cited favorably the burden-shifting test in HUD’s 2013 discriminatory effects rule, though it declined to settle the issue of what test should apply. After the Trump Administration substantially rolled back the rule in 2020, the Biden Administration reinstated it in 2021.4

HUD’s burden-shifting is as follows: (1) The plaintiff or charging party is first required to prove as part of the prima facie showing that a challenged practice caused or predictably will cause a discriminatory effect. (2) If the plaintiff or charging party makes this prima facie showing, the defendant or respondent must then prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the defendant or respondent. And (3) If the defendant or respondent meets its burden at step two, the plaintiff or charging party may still prevail by proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.

Despite the Supreme Court’s favorable citation to this standard, the Fifth Circuit has applied a more restrictive “robust causation” test. This test requires that either “a change in the defendant's enforcement of [a] policy” caused a disparate impact or that a challenged policy “caused [the relevant minority group] to be the dominant group” of those affected by the policy.5  The robust causation requirement references the Supreme Court’s emphasis that where a claim relies on a statistical disparity, the claim “must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.”6  This is a developing area of the law.

• 1844 F.2d 926 (2d Cir. 1988).
• 2736 F.2d 983 (4th Cir. 1984).
• 3Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015).
• 486 Fed. Reg. 33590 (June 25, 2021).
• 5Inclusive Cmtys. Project, Inc. v. Heartland Cmty. Ass’n, 824 F. App’x 210, 217 (5th Cir. 2020) (citing Inclusive Cmtys. Project v. Lincoln Prop. Co., 920 F.3d 890 (5th Cir. 2019) and declining to overrule that widely questioned decision).
• 6Tex. Dep’t of Hous. & Cmty. Affairs, 576 U.S. at 542.

General tort principles apply to FHA damage suits, which allow recovery of nominal, actual, and punitive damages.1  The major components of actual damages in FHA cases are humiliation, embarrassment, and emotional distress.2

Punitive damages may be appropriate where “reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law” are evidenced.3  At least 4 circuits have adopted this standard for FHA claims.4  Applying this standard, the Fifth Circuit approved a $55,000 punitive damages award where the actual damages were only $500.5  The Eighth Circuit used a multiplier of 4 in an FHA sex harassment case.6

• 1Curtis v. Loether, 415 U.S. 189 (1974).
• 2For a discussion of damage awards, see Kale Williams, Maximizing Damage Awards in a Fair Housing Case, 26 John Marshall L.R. 1 (1993).
• 3461 U.S. 30 (1983)
• 4Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003).
• 5Id.
• 6Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010).

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.1  Given these uncertainties, it may be preferable to sue in state district court when an FHA plaintiff faces a state court summary eviction lawsuit.2  If the federal case is filed before the landlord files the eviction case in state court, lis pendens should bar the eviction action and force the litigation of all of the outstanding issues in the housing discrimination lawsuit.

• 1Compare Casa Marie, Inc. v. Superior Ct. of P.R., 988 F. 2d 252 (1st Cir. 1993), with Oxford House, Inc. v. City of Albany, 819 F. Supp. 1168 (N.D.N.Y. 1993).
• 2Note that a different situation would be presented if you also had a 42 U.S.C. § 1983 action against a governmental defendant since a § 1983 action is a recognized exception to the Anti-Injunction Act. But you should also consider whether Younger abstention applies. 

A successful plaintiff can obtain attorney’s fees under the FHA under standards virtually identical to those in 42 U.S.C. § 1988.1

Attorney’s fees are also available under the Louisiana Open Housing Act (LOHA). Note, however, that the LOHA provides attorney’s fees to whichever party prevails. Although the sponsors of that change have stated that their intent was to adopt the same attorney’s fees standard as the FHA, it is possible that the courts will use a “loser pays” standard rather than the “frivolous” standard used in FHA cases.

• 1See 42 U.S.C. § 3613(a).