A Governor’s Executive Order may suspend all deadlines in the Civil Code and Code of Civil Procedure. Thus, an Executive Order applies to the deadlines in eviction suits and delays the running of the time periods for notices to vacate and rules for possession.

The delays required by a hypothetical Executive Order that orders a 15-day suspension ending on Friday, September 12, are illustrated by the following examples:

Example 1: Rent due on September 1. Landlord files 5-day notice to vacate on September 2. The Executive Order suspends the running of the notice to vacate through Sunday, September 14. The 5 days would run from Monday, September 15 to Friday, September 19. The first day that a landlord could file the rule for possession would be Monday, September 22.

Example 2: Rent due on September 1. Tenant waived notice to vacate in writing. Landlord files and serves rule for possession on September 2. A rule can’t be heard until the third day after service. This 3-day period can’t begin running until Monday, September 15. Thus, Wednesday, September 17 would be the first day the rule for possession could be heard.

A possessor, whether in good faith or bad faith, may retain possession until the owner reimburses the possessor for expenses and improvements.1

A usufructuary may retain possession until the naked owner reimburses the usufructuary for expenses and advances to which the usufructuary is entitled.2  Generally, a usufructuary does not occupy the property by permission or accommodation of the owner and would not be an “occupant” within the meaning of La. C.C.P. art. 4704. Therefore, Articles 4702 and 4735 would not authorize the use of a rule for possession to summarily evict a usufructuary.3  Hence, an exception of unauthorized use of summary proceeding should be filed against a rule to evict a usufructuary. A common usufruct is that of a surviving spouse over the decedent’s share of community property under the laws of intestate succession.4

• 1La. C.C. art. 529; Broussard v. Compton, 2009-1292 (La. App. 3 Cir. 04/14/10), 36 So. 3d 376.
• 2La. C.C. art. 627; Barnes v. Cloud, 46,685 (La. App. 2 Cir. 12/14/11), 82 So. 3d 463.
• 3Cf. Millaud v. Millaud, 99-CA-2145 (La. App. 4 Cir. 04/05/00), 761 So. 2d 44; Bond v. Green, 401 So. 2d 639, n.1 (La. App. 3 Cir. 1981) (rule to evict usufructuary had aspect of summary proceeding, but objection to use of summary proceeding was waived).
• 4La. C.C. art. 890.

A co-owner has the right to use co-owned property and need not pay rent to other co-owners.1  However, a co-owner cannot prevent another co-owner from using the property.2  A co-owner in exclusive possession may only be liable for rent beginning on the date that another co-owner requests occupancy and has been refused.3  A co-owner cannot be divested of possession by a summary eviction proceeding; the remedy for co-owners who disagree about use of co-owned property is judicial partition of the property.4  A succession representative or administrator also cannot evict an owner from the property through a summary eviction proceeding.5

When it comes to co-owners leasing to a third-party non-owner, all co-owners must consent to lease a property. Arguably, one co-owner could rescind that consent and move to terminate the lease.6

If a tenant or occupant facing eviction may have an ownership interest in the property, advocates should argue that city and justice of the peace courts lack jurisdiction to adjudicate disputed title to immovable property.7  Title disputes cannot be decided via a summary proceeding.8

• 1La. C.C. art. 802; McCarroll v. McCarroll, 701 So. 2d 1280, 1289 (La. 1997).
• 2La. C.C. art. 802.
• 3McCarroll, 701 So. 2d at 1290.
• 4In re Succession of Deal, 2013-200 (La. App. 3 Cir. 11/13/13), 129 So. 3d 686, 688.
• 5Matthews v. Horrell, 2006 CA 1873 (La. App. 1 Cir. 11/0/07), 977 So. 2d 62; Coon v. Miller, 175 So. 2d 385, 387 (La. App. 2 Cir. 6/28/65); Deal, 129 So. 3d at 688.
• 6La. C.C. art. 805; Brown v. Brown, 48,274 (La. App. 2 Cir. 8/7/13), 121 So. 3d 1242, 1245.
• 7La. C.C.P. art. 4847 (city and parish courts); La. C.C.P. art. 4913 (Justice of the peace court); Millaud v. Millaud, 99-CA-2145 (La. App. 4 Cir. 04/05/00), 761 So. 2d 44.
• 8Fradella Constr., Inc. v. Roth, 503 So. 2d 25, 26–27 (La. App. 4 Cir. 1986).

A lease does not bind or affect third parties unless it is filed for registry in the office of the parish recorder for the parish where the immovable is located,1  the third party assumed the lease in the act of sale or purchase agreement,2  or the third party purchased the property at a foreclosure sale.3  An unrecorded lease may also be ratified if the new owner allows the tenant to remain and accepts rent for a time.4  If the third-party purchaser of the property evicts a tenant prior to expiration of an unrecorded lease, the tenant may have a damages action against the original landlord.5

The Protecting Tenants at Foreclosure Act (“PTFA”) provides protections for bona fide tenants who reside in properties that have been foreclosed on. The PTFA requires that the immediate successor in interest to the foreclosed owner (typically the mortgage company or third-party purchaser at foreclosure sale) allow a bona fide tenant to occupy the premises until the end of their lease, unless the successor in interest intends to occupy the unit as a primary residence. In that case, or in the case of a month-to-month lease, the successor in interest must provide at least 90 days’ written notice to vacate.6  A defective notice to vacate, e.g., a 5-day notice to vacate, may not be cured by the mere passage of time.7  Courts are divided on which party carries the burden of proving that the tenant is, or is not, a bona fide tenant as defined by the PTFA.8  The PTFA expressly states that tenants whose rents are reduced by a subsidy are protected “bona fide tenants” even though they don’t pay fair market rent.9  A federal PTFA defense is not a basis for removal of the eviction to federal court, rather it is a state court eviction defense.10  Although the PTFA expired in 2014, Congress permanently reenacted the PTFA in 2018 in § 304 of the Economic Growth Act.11

In the case of foreclosure, La. C.C.P. art. 2293(B)(2)–(3) requires the sheriff to serve a written notice of seizure on tenants and occupants when the landlord’s property has been seized by a creditor. The sheriff’s failure to serve this notice prevents the purchaser of the property from using a La. R.S. 13:4346 ex parte writ of possession to evict or eject occupants or tenants. However, the sheriff’s failure does not affect the rights of the purchaser or foreclosing creditor to use the eviction procedures in La. C.C.P. art. 4701, et seq., which require a 5-day notice to vacate and a rule of possession. An owner in foreclosure is required to notify tenants of the foreclosure within seven days of being served with a notice of seizure and may be subject to a $200 penalty for failure to do so.12

• 1La. C.C. art. 2681, 2712, 1839; La. R.S. 9:2721. But see Restaurant Indigo v. Thompson, 98-2704 (La. App. 4 Cir. 05/19/99), 733 So. 2d 1271 (where recorded lease was expired on its face, and renewal was not recorded, lease was not binding on third party).
• 2Stanley v. Orkin Exterminating Co., 360 So. 2d 225 (La. App. 1 Cir. 1978).
• 312 U.S.C. § 5220 note.
• 4La. C.C. art. 1843; see Means v. Comcast, Inc., 44,503 (La. App. 2 Cir. 08/19/09), 17 So. 3d 1012, 1014–15.
• 5La. C.C. art. 2712.
• 612 U.S.C. § 5220 note; Bank of N.Y. Mellon v. De Meo, 254 P.3d 1138 (Ariz. Ct. App. 2011); Curtis v. U.S. Bank Nat’l Ass’n, 50 A.3d 558 (Md. 2012); Joel v. HSBC Bank N.A., 420 F. App’x 928, 931 (11th Cir. 2011) (month-to-month tenant entitled to 90-days notice under Protecting Tenants at Foreclosure Act); see Off. of the Comptroller of the Currency, Protecting Tenants at Foreclosure Act (2020).
• 7Bank of N.Y. Mellon, 254 P.3d 1138; Curtis, 50 A.3d 558.
• 8Fontaine v. Deutsche Bank Nat. Tr. Co., 372 S.W.3d 257, 261 (Tex. App. 2012) (finding no authority for tenant carrying burden of proof); Bank of Am., N.A. v. Owens, 28 Misc. 3d 328, 334, 903 N.Y.S.2d 667, 671 (City Ct. 2010) (landlord carries burden); Customer’s Bank v. Boxer, No. SNSP40178, 2013 WL 1010747, at *5 (Conn. Super. Ct. Feb. 28, 2013) (tenant carries burden), aff’d, 84 A.3d 1256 (2014); In re Figuera, No. 14-21730-A-7, 2014 WL 4923078, at *5 (Bankr. E.D. Cal. July 28, 2014) (tenant carries burden).
• 912 U.S.C. § 5220 note § b(3).
• 10Wells Fargo Bank v. Hines, No. 2:12-cv-1683, 2012 WL 2467024 (E.D. Cal. June 27, 2012). However, a PFTA defense may arise as an issue in bankruptcy if the landlord’s foreclosing mortgage company seeks to lift the stay in order to evict.
• 11Pub. L. 115-174, 132 Stat. 1296 (2018), codified at 12 U.S.C. § 5220 note.
• 12La. R.S. 9:3260.1.

A “reconducted lease” is a continuation of the lease under the same terms, except that the fixed term in the old lease is voided and the reconducted lease is considered to be month-to-month.1  All provisions of the lease, other than the term, continue in effect. Legal reconduction takes place when a fixed term lease expires, without opposition.2

The presumption of reconduction (when the lessee remains in possession of the premises beyond the terms of the lease) is not to be used to force a contract on parties who are unwilling to contract. Its purpose is merely to establish a rule of evidence, or presumption, as to intent when contrary intent has not been expressed. Therefore, any intent not to renew the lease on the same terms defeats reconduction.3  For example, no reconduction takes place where the tenant and landlord negotiate for a new lease prior to the expiration of the old lease, and such negotiations involve terms which differ substantially from the old lease.4

• 1La C.C. arts. 2721–2724; see Mays v. Alley, 599 So. 2d 459 (La. App. 2 Cir. 1992); Baronne Street, Ltd. v. Pisano,, 526 So. 2d 345 (La. App. 4 Cir. 1988); Misse v. Dronet, 493 So. 2d 271 (La. App. 3 Cir. 1986); King Plaza Inc. v. Richter, 303 So. 2d 504 (La. App. 2 Cir. 1974). Prior rules codified at La. C.C. arts. 2685, 2689.
• 2See Governor Claiborne Apartments, Inc. v. Attaldo, 235 So. 2d 574 (La. 1970); Torco Oil Co. v. Grif-Dun Group, Inc., 617 So. 2d 102 (La. App. 4 Cir. 1993).
• 3Misse, 493 So. 2d 271.
• 4Divincenti v. Redondo, 486 So. 2d 959 (La. App. 1 Cir. 1986).

Rent may not legally be increased during the term of a lease in the absence of a valid rent escalation clause.1  Escalation clauses can be invalidated if the price is not readily ascertainable or is dependent on the landlord’s whim.2  A landlord cannot unilaterally increase a month-to-month tenant’s rent unless 10-days notice is given prior to the expiration of the current rental month.3

Some judges will not allow an eviction for nonpayment of rent if the rent has been tendered but refused because it was not accompanied by payment of non-rent charges, e.g., alleged late fees or property damage.4

If a tenant directs a landlord to apply a payment to current monthly rent rather than past balance or disputed charges, the landlord may not legally apply the payment to a different debt.5  This can be accomplished by writing the purpose of the payment on the money order or check or in an accompanying letter. However, if the tenant accepts a receipt imputing the payment to a past balance rather than to current month, the tenant cannot then demand that the payment be applied otherwise.6

• 1La. C.C. art. 1983.
• 2La. C.C. art 2676 (the lease is invalid where the rent is not determinable); Arata v. La. Stadium & Exposition Dist., 225 So. 2d 362, 366 (La. 1969).
• 3La. C.C. arts. 1983, 2728.
• 4Cf. La. C.C. art. 2704.
• 5La. C.C. art. 1864.
• 6La. C.C. art. 1867.

There is no statutory prohibition on excessive late fees. However, advocates can argue that late fees are equivalent to stipulated damages for delayed performance.1  A stipulated damages clause is given effect if the court deems it to be a true approximation of actual damages.2  A court may modify stipulated damages if it finds the damages are manifestly unreasonable contrary to public policy.3  Unreasonably large stipulated damages that, as a result, are penal in nature, violate public policy.4

• 1La. C.C. art. 2005 (parties may stipulate to damages for delayed performance).
• 2La. C.C. art. 2005 cmt. c.
• 3La. C.C. art. 2012; Lombardo v. Deshotel, 94-1172, p. 8 (La. 11/30/94), 647 So.2d 1086, 1091 (citing La. C.C. art. 2012 in dicta with legislative history); Carney v. Boles, 25,905, p. 7 (La. App. 2 Cir. 9/21/94), 643 So. 2d 339, 343. (“When stipulated damages in a contract do not bear any reasonable relation to the actual damages suffered, courts have reduced the amount of damages recoverable.”).
• 4See, e.g., Keiser v. Catholic Diocese of Shreveport, Inc., 38797 (La. App. 2 Cir. 08/18/04), 880 So.2d 230 (stipulated damages “should reasonably approximate the obligee’s loss in the event of a breach and should not be penal. To determine the reasonableness, the court should inquire as to whether the parties attempted to approximate the actual damages in confecting the agreement.” (internal citations omitted)); Mobley v. Mobley, 37364, p. 7 (La. App. 2 Cir. 08/20/03), 852 So.2d 1136, 1140 (concluding that a party should be able to put on evidence regarding actual damages to show that stipulated damages were unreasonably excessive); James Constr. Grp., L.L.C. v. State, 2007-0225, p. 13 (La. App. 1 Cir. 11/02/07), 977 So.2d 989, 998 (stipulated damages of $10,000 per day for late performance of a construction project was reasonable because it was equal to the average daily cost of interference and inconvenience to the road user); Plaquemines Par. Gov't v. River/Road Constr., Inc., 2001-2222 (La. App. 4 Cir. 08/28/02), 828 So.2d 16, 28 (finding that the trial court erred by failing “to consider the reasonableness of the amount in the stipulation, as possibly being contrary to public policy”).