11.2.1 Scope of the Warranty

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”).