10.7.1 Actions by Ordinary Proceeding

Money for damages or rent are not recoverable in a summary proceeding instituted by a rule for possession.1  In addition, service of process by tacking does not subject a tenant to the requisite personal jurisdiction for entry of a money judgment.2  If confronted with a demand for unpaid rent within the eviction proceeding, a tenant should file an exception of unauthorized use of summary proceedings as to the rent claims.3

Generally, an obligation to pay rent is barred by the 3-year prescriptive period for a suit on an open account, not the 10-year prescription for breach of contract.4

A landlord has a duty to mitigate damages when a tenant prematurely terminates a lease.5

If the landlord terminates the lease, it forfeits the right to collect future rent under the lease.6  Lease provisions purporting to grant the landlord a right to future rentals after eviction or termination of the lease are unenforceable.7

If faced with rent debt related to early lease termination or “abandonment,” advocates should argue that in the case of a landlord’s failure to make repairs, a tenant may be legally justified in terminating the lease early.8  A landlord may also be required to terminate a lease early without penalty where a tenant needs to move for safety reasons due to sexual assault or domestic violence.9  A tenant may also be entitled to be released form the lease early as a reasonable accommodation for disability (for example, if the tenant lives in a second story apartment and develops a disability preventing climbing stairs).10

Attorneys and collection agencies who attempt to collect debts for landlords are subject to the Fair Debt Collection Practices Act.11

• 1Friedman v. Hofchar, Inc., 424 So. 2d 496, 499 (La. App. 5 Cir. 1982); Himbola Manor Apartments v. Allen, 315 So. 2d 790 (La. App. 3 Cir. 1975); Major v. Hall, 263 So. 2d 22 (La. 1972).
• 2Friedman, 424 So. 2d at 499–500.
• 3Garrett v. Cross, 41,139 (La. App. 2 Cir. 7/18/06), 935 So. 2d 845 (judgment for rent upheld where tenant failed to file exception, and where tenant was personally served with citation for rent arrears).
• 4Starns v. Emmons, 538 So. 2d 275 (La. 1989); La. C.C. 3494.
• 5La. C.C. art. 2002; Easterling v. Halter Marine, Inc., 470 So. 2d 221 (La. App. 4 Cir. 1985); La. R.S. 9:3260. Note, however, that it is unclear if this statute refers to the landlord’s or the tenant’s damages or, because a lease is a bilateral contract, to both.
• 6Richard v. Broussard, 495 So. 2d 1291, 1293 (La. 1986); 1001 Harimaw Ct. E., LLC v. Blo, Inc., 10-860 (La. App. 5 Cir. 05/24/11), 66 So. 3d 1131, 1133; Sunbelt Sec. Servs., Inc. v. Delahoussaye, 572 So. 2d 598, 605 (La. App. 4 Cir. 1990).
• 71001 Harimaw Ct., 10-860, 66 So. 3d at 1133.
• 8La. C.C. art. 2719 (“When a party to the lease fails to perform his obligations under the lease or under this Title, the other party may obtain dissolution of the lease pursuant to the provisions of the Title of ‘Conventional Obligations or Contracts.’”); La. C.C. art. 2013 (“When the obligor fails to perform, the obligee has a right to the judicial dissolution of the contract or, according to the circumstances, to regard the contract as dissolved.”); La. C.C. art. 2015 (“Upon a party’s failure to perform, the other may serve him a notice to perform within a certain time, with a warning that, unless performance is rendered within that time, the contract shall be deemed dissolved.”); La. R.S. 9:3260 (“When a lessee or tenant of commercial, residential, or dwelling premises has been constructively evicted from the premises, and when the premises are rendered uninhabitable through no fault of the lessee or tenant, the landlord or lessor shall be required to mitigate his damages.”); New Hope Gardens, Ltd. v. Lattin, 530 So. 2d 1207, 1210 (La. App. 2 Cir. 1988) (tenant’s remedies where landlord fails to make repairs are repair and deduct, or dissolution); Degrey v. Fox, 205 So. 2d 849, 852 (La. App. 4 Cir. 1968) (same); Cameron v. Krantz, 299 So. 2d 919, 923 (La. App. 3 Cir. 1974) (same).
• 9La. R.S. 9:3261.1 (domestic violence); La. R.S. 3261.2 (sexual assault); 34 U.S.C. § 12491 (Violence Against Women Act; applies only to federally subsidized tenancies).
• 1042 U.S.C. § 3604(f)(3)(B). For a further discussion of accommodations for a tenant’s disability, see Section 13.5.2.
• 11See Romea v. Heiberger Assocs., 163 F. 3d 111 (2d Cir. 1998).