A cluster of code articles establish a warranty of habitability.1  The landlord must deliver the premises to the tenant in good condition suitable for the purpose for which it was leased.2  Thereafter, the landlord must maintain the property in good condition.3  A tenant may sue and recover damages from a landlord for violations of this warranty, i.e., failure to maintain apartment in good condition.4

The warranty of habitability cannot be waived as it pertains to defects of which the landlord knew or should have known and defects that seriously affect tenant health and safety.5  In addition, any lease clause that limits liability of one party for intentional or gross fault that causes damage to the other party, or limits liability of one party for causing physical injury to the other party, is null.6  An “as is” clause in a lease agreement does not constitute a valid waiver of these statutory warranties.7

The warranty against vices and defects contained in La. C.C. arts. 2696–2699 covers defects that arise after the beginning of the tenancy and are not the fault of the lessee.8  It extends to defects that are not known to the lessor.9  As a result, courts have applied a strict liability standard to breach of the warranty against vices and defects.10

However, La. R.S. 9:3221 limits a landlord’s liability under Articles 2696–2699 if the tenant expressly assumed responsibility for the conditions of the unit under the lease.11  In such cases, the standard is effectively converted from a strict liability to a negligence standard.12  The language in the lease assigning responsibility to the tenant must be clear and unambiguous.13  In the absence of such language, assumption of risk is not in and of itself a defense to a damages claim for breach of the warranty of habitability.14  Even where there is an express assumption of responsibility in the lease, the landlord who knew or should have known of the defect may still be liable; liability may also attach if the landlord received notice of the defect and failed to remedy it in a reasonable time.15  A landlord may not claim the exculpatory benefits of La. R.S. 9:3221 where the defect causing injury was in a common area or building-wide system.16

• 1La. C.C. arts. 2682 (lessor’s principal obligations), 2684 (obligation to deliver the unit in good condition), 2691 (lessor’s obligation to make repairs), 2696 (warranty against vices and defects).
• 2La. C.C. art. 2684. Before the 2004 revision to the lease articles, this rule was codified at Article 2693.
• 3La. C.C. arts. 2691, 2696.
• 4See Ganheart v. Exec. House Apartments, 671 So. 2d 525 (La. App. 4 Cir. 1996); Gennings v. Newton, 567 So. 2d 637 (La. App. 4 Cir. 1990); Growe v. Johnson, 2020-0143 (La. App. 4 Cir. 02/17/21), 314 So. 3d 87; see also La. C.C. arts. 2682, 2684, 2691, 2696–2699. But see Smith v. Castro Bros. Corp., 443 So. 2d 660 (La. App. 4 Cir. 1983) (reducing damages award for period of uninhabitability after tenant received notice to vacate).
• 5La. C.C. 2699.
• 6La. C.C. art. 2004, 2699(2).
• 7Pylate v. Inabnet, 458 So. 2d 1378, 1385 (La. App. 2 Cir. 1984); Moity v. Guillory, 430 So. 2d 1243 (La. App. 1 Cir. 1983).
• 8La. C.C. 2696.
• 9La. C.C. 2697. Note, however, that this warranty does not apply if the tenant knows of the defects and does not inform the landlord.
• 10Wells v. Norris, 46458 (La. App. 2 Cir. 08/10/11), 71 So. 3d 1165, 1169 (“The lessor’s liability is based on his status as landlord, not his personal fault; therefore, his lack of knowledge regarding the defect is inconsequential.”).
• 11La. R.S. 9:3221; Biggs v. Cancienne, 2012-0187 (La. App. 1 Cir. 09/21/12); 111 So. 3d 6 (reversing trial court’s judgment granting summary judgment for landlord where water-logged sheetrock fell on tenant because a factual dispute existed as to whether the landlord knew of the defect and failed to repair it in a reasonable time).
• 12Giles v. Wal-mart La. LLC, No. CV 16-2413, 2016 WL 2825778, at *5, n.4 (E.D. La. May 13, 2016).
• 13Wells, 46458, 71 So. 3d at 1170 (finding that La. R.S. 9:3221 did not apply because a lease provision requiring tenant to “maintain the house in good repair” did not amount to a “clear and unambiguous waiver of the warranty against vices and defects” imposed by La. C.C. art. 2696). But see Stuckey v. Riverstone Residential SC, Ltd. P’ship, 2008-1770 (La. App. 1 Cir. 08/05/09), 21 So. 3d 970, 974 (holding that a lease clause stating that the landlord “is not responsible for any injury, illness, harm or damage to the apartment of any person or property caused by or arising from, in whole or in part, mold or mildew” absolved landlord of liability under R.S. 9:3221 in a toxic mold case); Williams v. Three Girls, L.L.C., 2013-1589 (La. App. 4 Cir. 06/25/14), 142 So. 3d 1071, 1075–76 (finding lease contained clear and unambiguous language waiving the warranty against vices and defects, but reversing summary judgment in favor of property owner where there was a question of fact as to whether the owner knew or should have known about the defect).
• 14Smith v. Castro Bros. Corp., 443 So. 2d 660, 661 (La. App. 4 Cir. 1983) (holding that breach of the obligation of a landlord to provide habitable quarters cannot be excused on the ground that the tenant should have known the uninhabitability).
• 15La. R.S. 9:3221; see, e.g., Pylate v. Inabet, 458 So. 2d 1378 (La. App. 2 Cir. 1984) (landlord knew of the defective sewage system before leasing to the tenant and failed to remedy or inform tenant of defect).
• 16Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So. 3d 977, 986 (applying strict liability standard under Article 2699 where lease contained a waiver of the warranty against vices and defects, but a building fire originated in the wiring of a common area of the building which the court deemed “not included in the leased premises for the purposes of La. R.S. 9:3221”).

A tenant whose landlord fails to make necessary repairs may be entitled to an abatement or reduction of rent.1  However, unlike in some other jurisdictions, a tenant in Louisiana may not unilaterally withhold rent where a landlord fails to make repairs. Rather, a line of cases hold that a tenant’s available remedies are (1) to do repair and deduct under C.C. art. 2694, or (2) to terminate the lease and surrender the premises to the landlord.2  A tenant may obtain lease dissolution or diminution of rent where use of the leased premises is “substantially impaired” under La. C.C. art. 2715 by agreement of the parties, or by seeking a judicial determination.3  Because of this case law, it is advisable for a tenant to sue affirmatively for a rent reduction or abatement rather than unilaterally withholding rent.4  At least one court has awarded a tenant reimbursement for rent paid while the home was uninhabitable.5

In some circumstances, a tenant may regard their lease as dissolved without suing for dissolution where the landlord has failed to perform the landlord's obligations.6

• 1La. C.C. arts. 2715, 2693 (tenant displaced due to repairs that cannot wait until the end of lease).
• 2727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 2012-1014 (La. App. 4 Cir. 8/21/13), 122 So. 3d 1152, 1162; Degrey v. Fox, 205 So. 2d 849, 852 (La. App. 4 Cir. 1968); Cameron v. Krantz, 299 So. 2d 919, 922 (La. App. 3 Cir. 1974); New Hope Gardens, Ltd. v. Lattin, 530 So. 2d 1207, 1212 (La. App. 3 Cir. 1988); R & E Petroleum, LLC v. LKM Convenience, LLC, 22-238 (La. App. 5 Cir. 2/1/23), 2023 WL 1431992. But see Tales IP, LLC v. Common-Camp, LLC, No. CV 19-11339, 2019 WL 5785092, at *2 (E.D. La. Nov. 6, 2019) (declining to evict where withheld funds were placed in the court registry). On the repair-and-deduct remedy, see Section 11.3.
• 3727 Toulouse, 112 So. 3d at 1163; R & E Petroleum, 22-238, 2023 WL 1431992 (tenant may seek judicial determination of diminution of rent under La. C.C. art. 2715).
• 4La. C.C. art. 2693. Where an affirmative suit for abatement or reduction of rent is not possible, advocates can still argue abatement as an affirmative defense to eviction. NOLA E., LLC v. Sims, 2018-0623 (La. App. 4 Cir. 02/13/19), 265 So. 3d 1147, 1149 (court erred in refusing to allow tenant to submit evidence of substandard conditions when he claimed abatement under Article 2693 as a defense to eviction).
• 5Green v. ABC Rentals, 51461 (La. App. 2 Cir. 06/21/17), 224 So. 3d 1165, 1168–69 (affirming sizable award of damages plus the return of rental payments to lessee for total loss of use of apartment in uninhabitable condition).
• 6La. C.C. arts. 2013, 2015, 2016, 2719.

A tenant may be entitled to damages due to the landlord’s failure to perform. A tenant’s damages claim may be reduced if the tenant failed to notify the landlord of a defect that the landlord did not know about.1  Written notice of the defect is not required where the landlord had actual notice.2

Pecuniary damages available for a breach of the warranty of habitability include personal injury,3  lost wages,4  and reimbursement for personal property damaged because of the landlord’s failure to make repairs.5

A tenant can also claim nonpecuniary damages when bringing a claim for breach of the lease contract.6  To succeed, a tenant must prove that the lease contract was “intended to gratify a nonpecuniary interest” and that the landlord knew or should have known that failure to prove the unit in appropriate condition would injure that interest.7  Louisiana courts have affirmed that contracts involving one’s home gratify a nonpecuniary interest.8  Mental anguish and other similar nonpecuniary damages are routinely awarded in cases involving uninhabitable rental housing.9

Documentary evidence should be introduced to substantiate a damages claim.10  However, lack of documentary evidence due to a landlord’s breach may not be fatal to the claim.11

• 1La. C.C. arts. 2697, 2688.
• 2Ganheart v. Exec. House Apartments, 95-1278 (La. App. 4 Cir. 02/15/96), 671 So. 2d 525.
• 3Bates v. Blitz, 17 So. 2d 816, 820 (La. 1944) (upholding award of damages for personal injury under Article 2695, the predecessor to La. C.C. art. 2696).
• 4Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So. 3d 977.
• 5Growe v. Johnson, 2020-0143 (La. App. 4 Cir. 02/17/21), 314 So. 3d 87, 91 (furniture damaged by flooding that was landlord’s fault); Wilson v. Pou, 436 So. 2d 599 (La. App. 4 Cir. 1983) (mildew damage due to air conditioning malfunction); Daspit v. Swann, 436 So. 2d 606 (La. App. 1 Cir. 1983) (fire damage due to electrical malfunction).
• 6La. C.C. art. 1998; see Young v. Ford Motor Co. Inc., 595 So. 2d 1123, 1133 (La. 1992) (interpreting Article 1998 to mean that “if it can be established that the obligee intended - and if the nature of the contract supports this contention - to gratify a significant nonpecuniary interest by way of the contract, and that the obligor either knew or should have known that failure to perform would cause nonpecuniary loss to the obligee, then the requirements for recovery of nonpecuniary damages are satisfied”).
• 7La. C.C. art. 1998.
• 8Ganheart, 95-1278, 671 So. 2d 525; Thomas v. Desire Cmty. Hous. Corp., 98-2097 (La. App. 4 Cir. 07/19/00), 773 So. 2d 755, 764; Mayerhofer v. Three R’s Inc., 597 So. 2d 151 (La. App. 3rd Cir. 1992).
• 9Ganheart, 95-1278, 671 So. 2d 525 ($1,500 for plumbing problem); Gennings v. Newton, 567 So. 2d 637, 641–42 (La. App. 4 Cir. 1990) ($3,500 for lack of water and electricity); Growe v. Johnson, 2020-0143 (La. App. 4 Cir. 02/17/21), 314 So. 3d 87 ($5,000 for mold); Shubert, 30 So. 3d 977 ($15,000-$25,000 each for multiple tenants who survived fire caused by electrical defect); Clofort v. Matmoor, Inc., 370 So. 2d 1305, 1310 (La. App. 4 Cir. 1979) ($45,000 for past and future pain and suffering after tenant fell on defective stairs at leased premises).
• 10Ganheart, 671 So. 2d at 528.
• 11Nickens v. McGehee, 184 So. 2d 271, 276 (La. App. 1 Cir. 1966).

In lieu of the remedy allowing a tenant to withhold rent, Louisiana provides tenants with a repair-and-deduct remedy.1

If the landlord does not make necessary repairs to the premises after reasonable notice, the tenant can make the repairs himself and deduct the reasonable cost of the repairs from future rent due.2  In the alternative, the lessee can sue the landlord for the cost of repairs.3  This remedy may be used by tenant to effectuate necessary repairs to the leased premises, as an affirmative defense to an eviction for non-payment of rent,4  and as a defense or set-off to an ordinary action for rent.5  To succeed in any of these uses, the tenant must carefully comply with the requirements of La. C.C. art. 2694.

Because of the technical nature of the repair-and-deduct law, it is best to carefully plan this defense with the tenant before rent is withheld and the repairs made. If the tenant fails to prove one or more elements of a repair-and-deduct defense, it may be possible to avoid lease cancellation by convincing the court that the tenant acted in good faith.6  A tenant’s rights under Article 2694 supersede any landlord instructions to the contrary (for example, where the landlord prohibits the tenant from making repairs). If a tenant withholds rent but does not use the money to make repairs because the landlord prohibited the tenant from making the repairs, the repair-and-deduct defense fails.7

• 1A tenant may also bring an action for money damages. See Section 11.2.3.
• 2La. C.C. art. 2694.
• 3Id.
• 4Lake Forest, Inc. v. Katz & Besthoff No. 9, Inc., 391 So. 2d 1286 (La. App. 4 Cir. 1980); Cameron v. Krantz, 299 So. 2d 919 (La. App. 3 Cir. 1974); Evans v. Does, 283 So. 2d 804, 807 (La. App. 2d Cir. 1973); Leggio v. Manion, 172 So. 2d 748 (La. App. 4 Cir. 1965).
• 5Brignac v. Boisdore, 288 So. 2d 31 (La. 1973), aff’g, 272 So. 2d 463 (La. App. 4 Cir. 1973); Degrey v. Fox, 205 So. 2d 849 (La. App. 4 Cir. 1968).
• 6Plunkett v. D & L Fam. Pharmacy,, 562 So. 2d 1048, 1052 (La. App. 3 Cir. 1990).
• 7Leggio, 172 So. 2d at 751.

The required elements of a repair-and-deduct remedy or defense under Article 2694 are:

1. The repairs were ones that the landlord was obligated to make.
2. The repairs were necessary.
3. The tenant called on the landlord to make repairs.
4. The landlord refused or failed to make these repairs after reasonable notice and demand.
5. The tenant made the repairs following the landlord’s refusal or failure to make them.
6. The price of the repairs was reasonable.
7. The tenant applied the cost of the repair to the payment of rent.

Although the Civil Code specifically permits the tenant to make repairs first and then deduct the cost, the Louisiana Supreme Court has held that a tenant may reverse the order of these actions.1  The normal repair-and-deduct remedy would be of limited value to tenants with minimal excess cash if the law required them to perform and pay for the repairs before subtracting the cost from their rent. At least one court has held that withholding rent for the purpose of saving enough money to make a necessary repair is an affirmative defense to eviction, but the tenant must actually intend to make the repair and must make the repair in a reasonable time.2  A landlord may not prohibit a tenant from exercising the right to repair and deduct.3

• 1Rhodes v. Jackson, 109 So. 46 (La. 1926).
• 2Leggio v. Manion, 172 So. 2d 748 (La. App. 4 Cir. 1965) (14 months of withholding was not reasonable); New Hope Gardens, Ltd. v. Lattin, 530 So. 2d 1207, 1210 (La. Ct. App. 1988) (5 months of withholding led court to believe that tenants had no intent to actually make repairs).
• 3Leggio, 172 So. 2d at 751.

Proper notice and demand for the necessary repairs is absolutely essential to the perfection of a remedy or defense under Article 2694.1  If there is a written lease provision on the method of notice, that provision will govern the issue of whether adequate notice was given.2  For example, in Calderon v. Johnson, the lease stated that “notices shall be served by mailing of such notice;” the court held that although the landlord failed to receive notice of the repairs made by the tenant, the tenant complied with the terms of the lease by mailing the notice.3

In the absence of a written lease provision or other agreement, one must decide on the type of notice, whom to notify, and the length of delay before conducting repairs. Oral or written notice may be sufficient.4  However, the tenant has the burden of proving adequate notice and demand, and oral notice is difficult to prove in the face of contradictory testimony. Hence, it is preferable to use a method of notice that can be independently corroborated, such as notice by the tenant’s attorney,5  mailed written notice,6  text message, or email. Correction orders issued by a city’s division of housing improvements do not satisfy the tenant’s contractual obligation to give the landlord written notice.7

The tenant should attempt to make the demand for repairs directly on the landlord. There are several cases, including Teekell v. Drewett8  and Ellis v. Brenner,9  that seem to require that the landlord receive actual notice, which is made more difficult in the case of an absent or inaccessible landlord. However, other courts have ruled that absence of actual notice is not fatal to a repair-and-deduct claim, especially when the repair is an emergency and the landlord is inaccessible.10

Article 2694 does not indicate how long a tenant must wait before commencing repairs after proper demand on the landlord. The determination of “reasonable period” is essentially factual and will depend on the individual circumstances of each case. Presumably, a “reasonable period” would vary according to the nature of the defect.11

In Davilla v. Jones, the Louisiana Supreme Court found that a commercial landlord’s failure to repair substantial water leakage in the roof and walls, within 2 weeks of the tenant’s demand, did not justify the use of the repair-and-deduct remedy.12  The court found that the high cost of repairs ($30,000+), and the business need to obtain additional bids, justified the landlord’s delay in making the repairs. As such, there is a danger that courts will interpret Davilla to require a waiting period of more than 2 weeks before a tenant can make the repairs under Article 2694.

• 1See Larsen v. Otalvano, 391 So. 2d 1378 (La. App. 4 Cir. 1980).
• 2See Brignac v. Boisdore, 272 So. 2d 463, 465 (La. App. 4 Cir. 1973), aff’d, 288 So. 2d 31 (La. 1974).
• 3453 So. 2d 615 (La. App. 1 Cir. 1984).
• 4See Rhodes v. Jackson, 109 So. 46, 48 (La. 1926); Freeman v. G.T.S. Corp., 363 So. 2d 1247 (La. App. 4 Cir. 1978); Dikert v. Ruiz, 231 So. 2d 633 (La. App. 4 Cir. 1970).
• 5See Dickert, 231 So. 2d 633.
• 6See, e.g., DiRosa v. Bosworth, 225 So. 2d 42, 45 (La. App. 4 Cir. 1969) (mailing carries a presumption of receipt but only if there is proof of actual mailing).
• 7Lee v. Badon, 487 So. 2d 118 (La. App. 4 Cir. 1986).
• 8103 So. 2d 525 (La. App. 2 Cir. 1958).
• 934 So. 2d 633 (La. App. 2 Cir. 1948).
• 10See Barrow v. Culver Bros. Garage, 78 So. 2d 69 (La. App. 2 Cir. 1955).
• 11See, e.g., id. (lessee parking garage could not operate due to electrical defect).
• 12Davilla, 436 So. 2d 507.

Once repairs are made, a tenant may demand reimbursement or deduct from rent due.1  A tenant under a long-term lease has a right to make deductions for repairs up to the amount due under the lease.2  As a practical matter, a tenant with a month-to-month lease is probably limited to making repairs that do not exceed the monthly rent.3  However, use of Article 2694 is risky for month-to-month tenants because a landlord may respond to a repair-and-deduct remedy by issuing a 10-day notice to terminate a month-to-month lease. Louisiana does not have a statutory prohibition against retaliatory evictions.

On July 1, 2023, Sections 26-680 and 26-681 of the New Orleans Municipal Code took effect. These sections prohibit retaliatory eviction and nonrenewal of lease if a tenant has made a repair request or complaint. The ordinance creates a rebuttable presumption of retaliation if the action for eviction or nonrenewal occurs within 6 months of a verifiable repair-related complaint.

• 1La. C.C. art. 2694.
• 2Heirs of Merilh v. Pan Am. Films, 200 So. 2d 398, 402 (La. App. 4 Cir. 1967); Lorenzon v. Woods, 1 McGloin 373 (Orl. App. 1881); see also Cameron v. Krantz, 299 So. 2d 919, 923 (La. App. 3 Cir. 1974).
• 3Evan v. Does, 283 So. 2d 804, 808 (La. App. 2 Cir. 1973).

To prevail on a repair-and-deduct claim, the tenant must be able to prove that the repairs made were necessary and that the price of the repairs was reasonable. The “necessity of the repairs” should be established through the testimony of a qualified person.1  Purely cosmetic repairs are not covered by Article 2694.2

The actual price of the repairs should be provable by testimony of payment, corroborated by introduction into evidence of the bills paid, and identification of them as expenses incurred because of the landlord’s default.3  The reasonableness of the price should be proved through the testimony of a person qualified and knowledgeable in the assessment of the value of repairs.4

If a repair person or trade contractor cannot be obtained for the trial, you should attempt to introduce other competent testimony on the nature of the defects, the amount of time spent on the repairs, and the costs of the labor and materials. You can attempt to introduce any estimates for the repair work. Although these estimates are ordinarily inadmissible as hearsay,5  you could argue that the estimates are not being admitted for the truth of the matter asserted, but rather to show that the tenant obtained multiple estimates in order to satisfy the reasonableness requirement.

Finally, note that a tenant may be able to make a rent deduction for the value of the tenant’s own labor, if properly proved.6

• 1See, e.g., Scott v. Davis, 56 So. 2d 187 (Orl. App. 1952) (holding that production of receipted bill for automobile repairs, allegedly necessitated as the result of a collision, is not alone sufficient proof and that there must be testimony); Ermis v. Gov’t Emps. Ins. Co, 305 So. 2d 620 (La. App. 4 Cir. 1975) (holding that damage claim based on bill for medical expenses from a clinic was not proven where no doctor from the clinic testified).
• 2Pylate v. Inabnet, 458 So. 2d 1378, 1389 (La. App. 2 Cir. 1984).
• 3See, e.g., Dikert v. Ruiz, 231 So. 2d 633 (La. App. 4 Cir. 1970); Trinity Universal Ins. Co. v. Normand, 220 So. 2d 583, 586 (La. App. 3 Cir. 1969); see also Freeman v. G.T.S. Corp., 363 So. 2d 1247, 1251 (La. App. 4 Cir. 1978). But see Ducote v. Allstate Ins. Co., 242 So. 2d 103, 107 (La. App. 1 Cir. 1970) (holding that that a party’s testimony alone is insufficient to establish a claim for damages); Vezinat v. Marix, 217 So. 2d 416, 421 (La. App. 1 Cir. 1968) (same).
• 4See, e.g., Ducote, 242 So. 2d at 106; Vezinat, 217 So. 2d 416.
• 5Thompson v. Simmons, 499 So. 2d 517 (La. App. 2 Cir. 1986); Ordonez v. Md. Cas. Co., 312 So. 2d 875 (La. App. 4 Cir. 1975); Dikert, 231 So. 2d 633.
• 6Kopcso v. Alello, 32 So. 2d 99, 101 (La. App. 1 Cir. 1947) (holding that plaintiff who repaired cars professionally was entitled to his regular, reasonable charge for repairing his own vehicle). But see Lambert v. Allstate Ins. Co., 195 So. 2d 698, 702 (La. App. 1 Cir. 1967) (refusing to award plaintiffs damages for the cost of security services where they provided the service themselves).

A tenant who fails to prove one or more elements of an Article 2694 defense may nonetheless avoid eviction for nonpayment when the attempt to use the repair-and-deduct remedy was made in good faith and rent was withheld due to a genuine belief that it was not owed.1  Good faith has been found where a tenant, relying on counsel’s advice, refused to pay more than he thought was due.2

• 1Plunkett v. D & L Fam. Pharmacy, 562 So. 2d 1048, 1052 (La. App. 3 Cir. 1990) (where there was “a serious dispute here as to whether the defendant-lessee's withholding of $534.50 in rent was justified under LSA–C.C. art. 2694,” the court affirmed the trial court’s judgment that rent was owed to the Plaintiff, but reversed a the portion of the judgment terminating the lease); Brewer v. Forest Gravel Co., 135 So. 372 (La. 1931) (lease should not be canceled where “defendant has not refused arbitrarily to pay the rent, but was in good faith in refusing to pay more than he thought was due according to the advice of his counsel”).
• 2Brewer, 135 So at 373.

LUTPA prohibits “unfair and deceptive” acts or practices in the conduct of any trade or commerce.1  The definition of “trade or commerce” includes the sale or distribution of any services and any property, corporeal or incorporeal, immovable or movable, and any other article or thing of value.2  A practice is unfair when it offends established public policy, and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to customers.3  A practice is deceptive when it involves fraud, deceit, or misrepresentation.4  A practice does not fall under LUTPA if it is merely “disorganized and slipshod.”5

At a minimum, the victim of an unfair trade practice may recover actual damages and attorney’s fees. After notice to the Attorney General, the violator may be subjected to treble damages.6  Some courts have held that general damages are also available if there are actual damages.7  Suits with unfair trade practices claims should be filed within 1 year of the unfair practice because these claims are subject to a 1-year prescriptive period.8

In 2010, the Louisiana Supreme Court re-affirmed the broad coverage of LUTPA and affirmed that it covers parties beyond business consumers and competitors.9  The Supreme Court clarified that, “any limitation must be contained in the language of the statute.”10  Since the consumer relationship between a residential lessee and lessor is not expressly exempted from LUPTA, it should be covered.

There is a dearth of Louisiana jurisprudence on unfair trade practices in the residential landlord-tenant context. However, several courts have conducted a substantive LUTPA analysis regarding a residential lease,11  and no court has ruled that LUTPA is inapplicable to a residential lease simply because it is not commercial. Louisiana courts have held that interpretations of the federal courts and the Federal Trade Commission relative to 15 U.S.C. § 45 should be considered to adjudge the scope and application of LUTPA.12  15 U.S.C. § 45 has been interpreted to apply to various aspects of the leasing transaction.13  In addition, it should be noted that LUTPA is identical or virtually identical to the unfair trade practices laws of many other states. Decisions from other states on statutes identical, or similar to, those of Louisiana, are persuasive authority.14  Many states with identical or similar unfair trade practices laws have held them applicable to unfair or deceptive acts committed in the leasing of residential property.15

Other state courts have held a variety of landlord abuses to be unfair or deceptive trade practices:16

• Extrajudicial eviction.17
• Disconnection of utilities to evict.18
• Demand for money not owed under threat of eviction.19
• Routine filing of groundless evictions to collect debts not actually due and charging subsidized tenants more than authorized under federal law.20
• Violation of warranty of habitability.21

• 1La. R.S. 51:1405(A).
• 2La. R.S. 51:1402(9).
• 3F.T.C. v. Sperry Hutchinson Co., 405 U.S. 233 (1972); Risk Mgmt. Servs., LLC v. Moss, 09-632 (La. App. 5 Cir. 04/13/10), 40 So. 3d 176, 184–85.
• 4Moss, 09-632, 40 So. 3d at 85.
• 5Plater v. Ironwood Land Co., L.L.C., 39,085, pp. 17–18 (La. App. 2 Cir. 12/08/04), 889 So. 2d 475, 482.
• 6La. R.S. 51:1409; McFadden v. Import One, Inc., 2010-952 (La. App. 3 Cir. 02/09/11), 56 So. 3d 1212.
• 7Gandhi v. Sonal Furniture & Custom Draperies, LLC, 49959 (La. App. 2 Cir. 07/15/15), 192 So. 3d 783, 792 (damages under LUTPA include damages for mental anguish and humiliation); Bank of New Orleans & Tr. Co. v. Phillips, 415 So. 2d 973, 976 (La. App. 4 Cir. 1982) (upholding award of damages for mental anguish under LUTPA because “[h]umiliation and mental anguish are ‘real’, ‘genuine’, ‘existing in fact’, a part of ‘reality’ and ‘exist in the present’, as opposed to the future”); Laurents v. La. Mobile Homes, 96-0976 (La. App. 3 Cir. 02/05/97), 689 So. 2d 536, 542 (upholding $2,000 award for mental anguish where plaintiff’s mobile home was not delivered on the date that appeared in the parties’ contract, holding that “UTPL [LUTPA] provides for the recovery of actual damages, which include damages for mental anguish and humiliation”).
• 8The courts of appeal have held that the 1-year limitations period for LUTPA claims is peremptive. However, the Louisiana Supreme Court has not yet ruled on the issue as of this writing. See Bottinelli Real Est., L.L.C. v. Johns Manville, Inc., 2019-0619 (La. App. 4 Cir. 12/27/19), 288 So. 3d 179, 185; Glod v. Baker, 2004-1483 (La. App. 3 Cir. 3/23/05), 899 So. 2d 642, 646; 920 So. 2d 238; Kuebler v. Martin, 610 So. 2d 270, 271 (La. App. 5 Cir. 1992); Capitol House Pres. Co. v. Perryman Consultants, Inc., 98-1514 (La. App. 1 Cir. 12/10/98), 725 So. 2d 523, 526. But see Miller v. Conagra, Inc., 2008-0021 (La. 9/8/08), 991 So. 2d 445, 456 (specifically declining to rule on the question).
• 9Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633, pp. 7–8 (La. 4/23/10), 35 So. 3d 1053, 1058 (citing La. R.S. 51:1409(A) and holding that “the courts decide, on a case-by-case basis, what conduct constitutes a violation of the statute”).
• 10Id. at 1058.
• 11La. R.S. 51:1401, et seq.; see Plater v. Ironwood Land Co., L.L.C., 39,085, p. 17–18 (La. App. 2 Cir. 12/08/04), 889 So. 2d 475, 482 (affirming the trial court’s holding that LUTPA was inapplicable, though not on grounds that lease was not commercial but rather because the tenant’s showing that the lessor’s business practices were “disorganized and slipshod” was insufficient evidence of unfair trade practices); Scott v. MAC-RE, LLC, 16-224 (La. App. 3 Cir. 02/08/17), 211 So. 3d 693, 699 (affirming judgment in favor of landlord where tenant brought wrongful eviction and LUTPA claims, but court determined tenant abandoned premises; court denied attorney fees to landlord under LUTPA finding tenant’s claim was not in bad faith). But see Webb v. Theriot, 97-624, p. 13 (La. App. 3 Cir. 10/29/97), 704 So. 2d 1211, 1215 (stating that “we do not find that the lease and sublease of the hunting property and camp fall within the definition of ‘trade’ or ‘commerce’” for the purpose of LUTPA liability). Note that Webb is pre-Cheramie.
• 12Moore v. Goodyear Tire & Rubber Co., 364 So. 2d 630, 633 (La. App. 2 Cir. 1978); Guste v. Demars, 330 So. 2d 123 (La. App. 1 Cir. 1976).
• 13See, e.g., In re Hallmark Grp. Cos., 84 F.T.C. 1 (1974); LaPeyre v. F.T.C., 366 F. 2d 117 (5th Cir. 1966).
• 14Fontenot v. N.Y. Life Ins. Co., 357 So. 2d 1185 (La. App. 3 Cir. 1978).
• 15See, e.g., Commonwealth v. Monumental Props, 329 A.2d 812 (Pa. 1974); Commonwealth v. DeCotis, 316 N.E.2d 48748 (Mass. 1994); Commonwealth v. Isaacs, 577 S.W. 2d 617 (Ky. 1979).
• 16For more examples of the application of unfair trade practice laws to landlord-tenant practices, see Nat’l Consumer L. Ctr., Unfair and Deceptive Acts and Practices (10th ed. 2021), https://library.nclc.org/udap (paywalled).
• 17Mosley & Mosley Builders v. Landin, Ltd., 389 S.E.2d 576 (N.C. Ct. App. 1990); Dadonna v. Liberty Mobile Home Sales, Inc., 550 A.2d 1061, 1068 (Conn. 1988).
• 18Shepard v. Bonita Vista Props. LP, 664 S.E.2d 388 (N.C. Ct. App. 2008), aff’d 675 S.E.2d 332 (N.C. 2009).
• 19Stringer v. Perales, No. 01-02-00281-CV, 2003 WL 1848594 (Tex. Ct. App. 2003).
• 20Travieso v. Gutman, Mintz, Baker & Sonnenfeldt, 94 CV 5756, 1995 WL 704778 (E.D.N.Y. Nov. 16, 1995).
• 21Haddad v. Gonzalez, 576 N.E.2d 658 (Mass. 1991).

The federal Fair Debt Collection Practices Act (FDCPA)1  prohibits debt collectors from harassing or abusive communication with a consumer.2  It also prohibits a debt collector from making false or misleading representations about a debt.3  Within 5 days of communication with a consumer about a debt, the debt collector must send written notice detailing the debt.4  If the consumer disputes the debt, the debt collector must cease collection and verify the debt.5

The FDCPA does not apply to landlords who are attempting to collect from their own tenants,6  but may apply where a landlord uses a name other than his own to collect his own debt.7  However, it does apply to attorneys and collection agencies who attempt to collect debts for landlords.8  Some unfair debt collection practices are:

• Suit filed by debt collection agency against tenant for back rent, where debt collection agency did not own the debt, nor was it authorized to practice law in the state.9
• Communication by law firm that if a tenant signs a stipulation (consent judgment) to move by a certain date the eviction will be dismissed, and then failure to dismiss the eviction.10
• Demand for payment of amounts not authorized or due.11
• Utility shutoffs and lockouts seeking to force a tenant to pay rent in violation of bankruptcy stay.12
• Seizure of tenant’s property without valid lien.13
• Telephone or phone harassment, entry of premises to collect rent.14

• 115 U.S.C. § 1692, et seq.
• 215 U.S.C. §§ 1692c–1692d.
• 315 U.S.C. § 1692e.
• 415 U.S.C. § 1692g.
• 5Id.
• 6Carter v. Tacony Crossing 2021 LLC, No. 22-CV-4941, 2023 WL 2025037, at *3 (E.D. Pa. Feb. 15, 2023) (collecting cases).
• 715 U.S.C. § 1692a(6); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232 (5th Cir. 1997); Brown v. Crawford, No. 3-07-CV-1930-M, 2008 WL 508390, at *3 (N.D. Tex. Feb. 25, 2008) (“Defendant, who is a landlord attempting to collect a debt owed by her tenants, does not meet the statutory definition of a ‘debt collector.’”).
• 8Goldstein v. Hutton Ingram, 374 F.3d 56 (2d Cir. 2004) (attorney’s 3-day notice demanding rent or departure); Romea v. Heiberger Assocs., 163 F. 3d 111 (2d Cir. 1998) (rent demand notice by attorney as predicate to eviction).
• 9Poirier v. Alco Collections, Inc., 107 F.3d 347, 350 (5th Cir. 1997).
• 10Warden v. Tschetter Sulzer, P.C., No. 122CV00271CNSNRN, 2022 WL 17416732 (D. Colo. Dec. 5, 2022) (denying landlord’s motion to dismiss).
• 1115 U.S.C. § 1692f(1); McGrath v. Mishara, 434 N.E.2d 1215 (Mass. 1982) (under state statute); Hodges v. Sasil Corp., 915 A.2d 1 (N.J. 2007). But see Ducrest v. Alco Collections, Inc., 931 F. Supp. 459, 462 (M.D. La. 1996) (attorney not liable under FDCPA where inaccurate amount listed based on client landlord’s representation, and therefore misrepresentation was not knowing or intentional).
• 12In re Aponte, 82 B.R. 738 (Bankr. E.D. Pa. 1988) (under state statute) (subsequent court declined to follow on other grounds).
• 13Clarkson v. DeCaceres, 105 B.R. 266 (Bankr. E.D. Pa. 1989) (under state law).
• 14Id.

Denial of a lease because of a credit report or a tenant screening report is an adverse action under the Fair Credit Reporting Act.1  The tenant must be given notice of the adverse action and an opportunity to dispute inaccurate or incomplete information.2

Since 2021, a Louisiana landlord may not charge an application fee unless, prior to accepting payment, the landlord notifies the applicant of the right to submit a financial hardship statement explaining that the applicant has experienced financial hardship resulting from a state or federally declared disaster or emergency and how that hardship has impacted the applicant’s credit, employment, or rental history. The notice must reference COVID-19 and hurricanes.3  However, tenants have no cause of action against a landlord who violates the law.4  This seems to leave only the option of a consumer complaint to the Attorney General’s office.

• 1See Cotto v. Jenney, 721 F. Supp. 5 (D. Mass. 1989).
• 2See 15 U.S.C. § 1681, et seq.
• 3La. R.S. 9:3258.1.
• 4La. R.S. 9:3258.1(D).