5.2.2 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).