3.3 Rule for Possession

If the tenant fails to comply with the notice to vacate, or if the notice is waived in the lease, a judicial eviction is commenced by filing a rule for possession of premises with a proper court.1  This rule requires the tenant or occupant to show cause why the tenant or occupant should not be ordered to deliver possession of the premises to the landlord or owner. The rule must state the grounds on which eviction is sought.2

If the rule for possession states different grounds for termination than the notice to vacate, the attorney should argue that this defect renders the eviction premature.3  Issue switching between the mandatory notices and the trial should also be viewed as a due process violation.4

Once a petition for eviction is filed, the court must issue a citation or order to show cause to the tenant.5  La. C.C.P. art. 4731 and due process require grounds to be stated on which eviction is sought by the landlord. Many justices of the peace do not include any reasons in the citation or order; these rules for possession are deficient and should be dismissed for vagueness and/or prematurity.

The rule for possession must be served by the sheriff, marshal, or constable. Under Louisiana law, service by “tacking” is allowed,6  but a federal court judgment requires that all East Bank Orleans Parish rules be served by regular mail in addition to tacking.7  The rule may be heard no earlier than the third day after service of the rule on the tenant.8  The service return must be filed into the record by the sheriff, marshal, or constable who performed this function.

Certain fact patterns may still give rise to a constitutional challenge based on the ruling in Greene v. Lindsey that tacking service is unconstitutional.9  Under Greene, it is important that the tenant did not receive actual notice of the eviction in another manner and that evidence be presented that the tacked notice was removed or that the constable’s return is inaccurate.

• 1La. C.C.P. art. 4732.
• 2La. C.C.P. arts. 927, 4731(A); St. Pierre v. Hirschfeld, 569 So. 2d 222, 227 (La. App. 1 Cir. 1990).
• 3Cf. J & R Enters.-Shreveport, LLC v. Sarr, 43,364 (La. App. 2 Cir. 08/13/08), 989 So. 2d 235; Arbo v. Jankowski, 39 So. 2d 458 (Orl. App. 1949).
• 4200 Carondelet v. Bickham, 2017-0328, p. 12 (La. App. 4 Cir. 10/25/17), 316 So. 3d 955, 962.
• 5La. C.C.P. art. 4919.
• 6La. C.C.P. art. 4703; French Quarter Realty v. Gambel, 2005-0933, p. 5–6 (La. App. 4 Cir. 12/28/05), 921 So. 2d 1025, 1029 (finding that tenant’s due process rights were not violated because she presented no evidence that constable’s service return was in error and admitted to receiving the Rule for Possession by mail and distinguishing Greene v. Lindsey, 456 U.S. 444 (1982), which ruled tacking procedure unconstitutional).
• 7See Sylvester v. Detweiler, No. 84-3399 (E.D. La. 1985); see also Hughes v. Sanders, 36,968-CA (La. App. 2 Cir. 05/14/03), 847 So. 2d 165 (Caraway, J., dissenting).
• 8La. C.C.P. art. 4732; see Bernard v. Prof’l Prop. Mgmt., 16-215 (La. App. 2 Cir. 09/28/16), (holding that tenant must object at the onset of trial if the hearing is earlier than the third day after service).
• 9456 U.S. 444 (1982).