5.5.1 List of Defenses

5.5.1 List of Defenses aetrahan Tue, 05/02/2023 - 10:53
  • 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.