5.2.1 List of Defenses

5.2.1 List of Defenses aetrahan Tue, 05/02/2023 - 09:59
  • 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.