11.5 Warranty of Peaceful Possession

Failure to maintain a tenant in peaceable possession is a breach of the lease contract.1  Executory process and an order of seizure and sale is a disturbance of peaceable possession if there is an order to vacate or denial of tenant’s access.2  Landlords also have an obligation to prevent their other tenants from disturbing a tenant’s peaceable possession.3  Failure to provide sufficient security to tenants or to provide utility service4  may constitute a breach of the warranty of peaceable possession.5  The warranty of peaceable possession may not be waived.6

Violation of the warranty of peaceful possession may be considered constructive eviction.7  Prior to 1996, the code provided explicitly for damages where peaceful possession was disturbed by wrongful or constructive eviction.8  Although language about damages was removed in the revision, the revision comments to La. C.C. art. 2701 indicate that the intent of the legislature was to preserve the intent of the former Article 2696 and allow for damages actions.9  A landlord who evicts (actually or constructively) is barred from suing for or collecting future rent due under the lease.10

In addition to other damages, a tenant may be entitled to moving expenses for breach of warranty of peaceful possession.11  However, some courts have ruled that a tenant is not entitled to moving expenses because the lease would eventually expire, and the tenant would then have to move.12

A tenant may sue for emergency injunctive relief where a landlord threatens to constructively evict by cutting utilities, changing locks, or extrajudicially evicting tenant. For 30 days after a disaster declaration, the security bond under La. C.C.P. art. 3610 is waived for a tenant who must sue for emergency injunctive relief due to an illegal eviction.13

• 1La. C.C. art. 2682(3), 2700–2701.
• 2Plater v. Ironwood Land Co., L.L.C., 39,085 (La. App. 2 Cir. 12/08/04), 889 So. 2d 475.
• 3See, e.g., La. C.C. art. 2700–2701; Essen Dev. v. Marr, 95-1344 (La. App. 1 Cir. 11/30/95), 687 So. 2d 98.
• 4Lacour v. Myer, 98 So. 2d 308, 310 (La. App. 1 Cir. 1957).
• 5Potter v. First Fed. Sav. & Loan Ass'n of Scotlandville, 615 So. 2d 318, 320 (La. 1993) (vacating summary judgment for landlord where tenant was assaulted and robbed in the unlit parking lot of her apartment building); Veazey v. Elmwood Plantation Assocs., 650 So. 2d 712 (La. 1994) (affirming damages award against management company where tenant assaulted in her apartment); see also Wallmuth v. Rapides Par. Sch. Bd., 2001-C-1179 (La. 4/3/02), 813 So. 2d 341 (substantially reaffirming Veazey after the 1996 amendments to comparative fault articles).
• 6La. C.C. art. 2682(3); Entergy La., Inc. v. Kennedy, 2003 CA 0166 (La. App. 1 Cir. 7/2/03), 859 So. 2d 74; Southpark Cmty. Hosp. v. Southpark Acquisition Co., 13-59 (La. App. 3 Cir. 10/30/13); 126 So. 3d 805, 815.
• 7Lacour, 98 So. 2d at 310 (affirming judgment in favor of tenant whose petition to cancel his lease agreement was based on an argument that landlord violated the warranty of peaceable possession by cutting off his water service, thus constructively evicting him).
• 8“If the lessee is evicted, the lessor is answerable for the damage and loss which he sustained by the interruption of the lease.” Duhon v. Briley, 2012-1137 (La. App. 4 Cir. 05/23/13), 117 So. 3d 253, 259–60 (citing former La. C.C. art. 2696).
• 9See La. C.C. art. 2701 cmt.
• 10Southpark Cmty. Hosp., 13-59, 126 So. 3d at 819.
• 11Buddy’s Tastee #1, Inc. v. Tastee Donuts, Inc., 483 So. 2d 1321, 1323 (La. App. 4 Cir. 1986); Smith v. Shirley, 2001-1249 (La. App. 3 Cir. 02/06/02), 815 So. 2d 980, 986 (concerning eviction reversed on devolutive appeal).
• 12Knapp v. Guerin, 81 So. 302, 306 (La. 1919); Kelly v. During, 6 La. App. 91, 93 (1927).
• 13La. C.C.P. art. 4731(C)(4).