• 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).