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.