1.1 Existence of a Lease

When investigating a prospective client’s housing problems, you should determine whether they have a landlord-tenant relationship with the adverse party.1  A lease is a contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay.2  A lease must also be for a term or time period; this term may or may not be definite or fixed.3  There must be real consent as to the thing and the rent.4  The rent can be money, commodities, fruits, or services performed.5  A Louisiana court held that an oral lease agreement that obligated a tenant to make repairs did not terminate until passage of a term sufficient for the tenant to realize the fair value of his repairs.6

A lease may be either written or oral.7  A lease may be inferred from the facts, circumstances and acts of the parties.8  Lease agreements, whether written or oral, may be orally modified by the parties’ course of conduct.9  Testimonial or other evidence can be introduced to prove that a lease was modified by a subsequent and valid oral agreement.10  An unsigned lease can also be evidence of a lease agreement.11

A common example of the lack of a landlord-tenant relationship could occur when there is a valid rental agreement and the property owner sells the property within the duration of the contract term. In that case, the lease remains binding between the tenant and the original owner.12  The new property owner is not bound by the lease unless the tenant has recorded the lease in the parish conveyance records prior to the sale of the property, something that most tenants will not have done.13  In that situation, there is no privity of contract between the tenant and the new property owner, who can evict; the tenant’s remedy is against the landlord who sold the property.14  A landlord-tenant relationship will be created if the new property owner demands and accepts rent, but, unless a new lease is executed or the new owner assumes the old lease, the contract will be verbal and month to month.15

Another example where the landlord-tenant relationship may not exist is when the occupant is co-owner of the property and another co-owner seeks to evict.16

The legal relationship between landlord and tenant is a mixture of contract law, tort law, and statutory duties. Absent a violation of public policy, courts generally consider the written lease to be controlling.17  Therefore, each relevant provision in the lease must be analyzed to determine its proper interpretation and applicability.18  As a contract, a lease may also be governed by Civil Code articles on obligations and contracts.19

• 1Other possible legal relationships include owner-occupant, innkeeper-guest, employer-employee, owner-trespasser, and owners in indivision.
• 2La. C.C. arts. 2668, 2681.
• 3La. C.C. art. 4701.
• 4La. C.C. art. 2668.
• 5La. C.C. art. 2675.
• 6See, e.g., Wolf v. Walker, 342 So. 2d 1122 (La. App. 4 Cir. 1976).
• 7La. C.C. art. 2681.
• 8S. Treats, Inc. v. Titan Props., LLC, 40,873 (La. App. 2 Cir. 04/19/16), 927 So. 2d 677, 683.
• 9Karno v. Fein Caterer, 2002-CA-1269 (La. App. 4 Cir. 04/16/03), 846 So. 2d 105.
• 10La. C.C. art. 1848.
• 11Williams v. Bass, 37,156-CA (La. App. 2 Cir. 05/14/03), 847 So. 2d 80, 83.
• 12La. C.C. art. 2711.
• 13La. C.C. art. 2712; La. R.S. 9:2721(B) (providing for continuation of recorded leases); see Martin Fuel Distribs., Inc. v. Trans Gulf Fuel, Inc., 496 So. 2d 473 (La. App. 1 Cir. 1986).
• 14La. C.C. art. 2712.
• 15This does not apply to inheritance situations unless specified otherwise in the contract. La. C.C. art. 2717. A lease does not terminate by the death of the lessor or the lessee or by the cessation of the existence of a juridical person that is a party to the lease.
• 16Matthews v. Horrell, 2006 CA 1873 (La. App. 1 Cir. 11/07/07), 977 So. 2d 62.
• 17Carriere v. Bank of La., 95-3058 (La. 12/13/96), 702 So. 2d 648.
• 18La. C.C. arts. 1983, 2045–2057.
• 19La. C.C. art. 2669.