• 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.