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).