5.4.2 Retaliatory Eviction

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).