A tenant must give the landlord timely notice of lease termination. The notice of lease termination informs the landlord of the tenant’s intent not to renew the lease and theoretically allows the landlord to prepare for a new tenant in order to minimize loss or “damage.” Notice by mail should be sufficient unless the lease or other agreement requires otherwise.1  Testimony that the tenant (or other person) personally mailed the notice, postage prepaid, properly addressed, and that the letter was not returned, creates a presumption that the landlord received the notice.2

Prior to the enactment of La. R.S. 9:3251(C), an inadequate notice of lease termination was merely viewed as a breach of a lease obligation. It did not preclude recovery of a security deposit unless the landlord incurred actual damage from such default.3  However, courts generally interpret La. R.S. 9:3251(C) to bar recovery of a security deposit if the tenant did not provide proper notice of lease termination.4  In Low v. Bologna, the court found that the tenants gave notice in December, but that it only terminated the lease for January. Since the tenants vacated in December, the court declined to order the refund of their security deposit. However, the court applied it as a credit toward the unpaid January rent.5

Timeliness, form (written vs. oral), and method of service or delivery are the most common grounds for challenging the adequacy of a tenant’s notice of termination. An arguably defective notice of termination may be overcome in certain circumstances. For example, waiver of a notice requirement or mutual cancellation of the lease, if provable, should remove any La. R.S. 9:3251(C) bar to security deposit recovery.6  Presumably, midterm cancellation of the lease for legal cause, such as breach of the warranty of habitability or constructive eviction, would also relieve the tenant from the notice requirements of La. R.S. 9:3251(C).7  Surrender of possession without written notice to the landlord at “the time at which the notice of termination shall be given under Article 2728” constitutes sufficient notice.8  Thus, for example, if a month-to-month tenant surrenders possession 10 calendar days before the end of the rental month, the surrender is sufficient notice without a need for written notice.

• 1Moore v. Drexel Homes, Inc., 293 So. 2d 500 (La. App. 4 Cir. 1974).
• 2See, e.g., id. at 502–04.
• 3See, e.g., Garb v. Clayton-Kent Builders, Inc., 307 So. 2d 813, 814–15 (La. App. 1 Cir. 1975) (failure to give 30-day notice required by lease did not forfeit security deposit).
• 4Low v. Bologna, 2008-2578 (La. App. 1 Cir. 06/19/09), 11 So. 3d 1246 (table; Mays v. Alley, 599 So. 2d 459 (La. App. 2 Cir. 1992); see also R. Hersbergen, Developments in the Law, 1980-81: Consumer Protection, 42 La. L. Rev. 513, 535 (1982). If it can be argued that La. R.S. 9:3251 does not supersede the tenant’s underlying contractual cause of action, then failure to give the landlord proper notice would only render the statutory cause of action under La. R.S. 9:3251(A) inapplicable and would not bar recovery of the security deposit under the contractual cause of action.
• 5Low, 2008-2578; 11 So. 3d 1246.
• 6Cf. Bradwell v. Carter, 299 So. 2d 853 (La. App. 1 Cir. 1974) (waiver of time requirement for notice); Cantelli v. Tonti , 297 So. 2d 766, 768 (La. App. 4 Cir. 1974) (midterm cancellation of lease); Audrey Apartments v. Kornegay, 255 So. 2d 792, 793 (La. App. 4 Cir. 1972); Calix v. Whitson, 306 So. 2d 62, 64 (La. App. 4 Cir. 1974) (subsequent oral agreement to terminate at any time upon notice and payment of pro rata rent); see also La. C.C. arts. 1983, 2045–2046.
• 7Cf. Nash v. LaFontaine, 407 So. 2d 783 (La. App. 4 Cir. 1981); see also La. C.C. arts. 2714–2719.
• 8See La. C.C. art. 2729.

A landlord may argue abandonment of the unit by a tenant before the end of the current lease term as a defense to a security deposit lawsuit.1  In Curtis v. Katz, the court held that living at a new apartment prior to the expiration of the lease did not constitute abandonment where the tenant retained the key and kept some property at the old apartment until the lease expired.2  The court defined “abandonment” as the voluntary relinquishment of the apartment with the intent of terminating possession and without vesting ownership in any other person. Where a tenant gives the landlord notice of lease termination, but leaves the premises prior to the termination and fails to pay rent for the remainder of the lease period, the tenant is not entitled to the return of the security deposit.3

What if a tenant places a deposit, but does not move in? The Lessee’s Deposit Act may or may not apply to leases that are rescinded prior to a tenant taking possession. Some courts have read the Lessee’s Deposit Act as being intended to apply when a lease terminates, but not when is has been rescinded or abandoned.4  Ultimately, this will depend on the court that you are in as the circuits are split on this issue. 

For instance, in Mayeaux v. Christakis, the court held that the Lessee’s Deposit Act did not apply when both parties mutually rescinded their lease.5  There, the defendant never received keys and the landlord had verbally agreed to give back both security deposit and first month’s rent after a job fell through such that the tenant was no longer able to move into the apartment as originally planned. The court also noted here that the lease was rescinded when the landlord quickly leased the property to a new tenant. The court ultimately held that the parties mutually rescinded the lease and so the Lessee’s Deposit Act did not apply.

On the other hand, in Barnes v. Smith, the landlord testified that she had a policy of retaining half the deposit if tenants changed their minds and did not move in. The tenant disputed any discussion of this policy.6  The court treated the case as a security deposit case and ordered the return of entire deposit upon finding that the landlord failed to prove any damages when the tenants paid their deposit on Saturday, changed their minds on Monday, and the apartment was not available to anyone until Friday.

• 1Hood v. Ashby P’ship, 446 So. 2d 1347 (La. App. 1 Cir. 1984) (holding that the statute simply required a tenant to abide by the lease terms).
• 2Curtis v. Katz, 349 So. 2d 362 (La. App. 4 Cir. 1977).
• 3Borne v. Wilander, 509 So. 2d 572 (La. App. 3 Cir. 1987).
• 4Mayeaux v. Christakis, 619 So. 2d 93, 97 (La. App. 5 Cir. 1993).
• 5619 So. 2d 93.
• 606-42180 (La. App. 2 Cir. 05/16/07), 957 So. 2d 381.

If the tenant did not vacate by the lease expiration date, the landlord will claim an additional month’s rent as an offset on the theory that the lease has reconducted for one month.1  The landlord has the burden of proving reconduction in this situation.2  Occupancy of the apartment for one week or less after the expiration of the lease would not constitute reconduction.3  A tenant’s continued occupancy after lease termination would presumably entitle the landlord to the fair market rental value of the actual holdover period under an unjust enrichment theory. 

The landlord should not be able to claim rent for the period after a tenant vacates the apartment pursuant to an eviction notice or after the issuance of a notice to vacate.4  Landlords also often claim an additional month’s rent if the tenant does not return the keys prior to or on the date the lease ends.5

• 1Ball v. Fellom, 406 So. 2d 781 (La. App. 4 Cir. 1981). For additional discussion of reconduction, see Section 10.6.
• 2Talambas v. La. State Bd. of Educ., 401 So. 2d 1051 (La. App. 3 Cir. 1981).
• 3Ball, 406 So. 2d 781; Misse v. Dronet, 493 So. 2d 271 (La. App. 3 Cir. 1986); Baronne St. Ltd. v. Pisano, 526 So. 2d 345 (La. App. 4 Cir. 1988).
• 4Sciacca v. Ives, 952 So. 2d 762 (La. App. 4 Cir. 2007); McGrew v. Milford, 255 So. 2d 619 (La. App. 4 Cir. 1971).
• 5See, e.g., Simkin v. Vinci, 215 So. 2d 404 (La. App. 4 Cir. 1968).

A landlord may retain the portion of the security deposit that is reasonably necessary to remedy unreasonable wear to the premises. Tenants are never responsible for reasonable wear, damage that pre-existed the lease, damage that was not their fault, or repairs that are the landlord’s responsibility.1  “Reasonable wear and tear” is a factual determination for the trial court.2  The length of time the tenant has lived in the unit is an important consideration in the determination whether something is attributable to reasonable wear and tear or tenant-fault damage.3  If the tenant has caused damage for which the tenant is at fault, a landlord who willfully fails to return the security deposit could file a reconventional demand for damages to the premises and be successful in that claim.4

Only the amount necessary to repair the damage may be withheld. For instance, a landlord’s defense that a carpet had to be replaced due to damage from the tenant’s smoking was rejected based on the tenant’s evidence that the smoke damage could be repaired for $50. The court ordered the deposit, minus $50, refunded to the tenant.5

The doctrine of res ipsa loquitur cannot be used to prove that the damage was caused by the tenant’s negligence.6  Once the landlord has established proof of damage, the tenant has the burden of showing that the damages occurred prior to the lease’s commencement or occurred without the fault of the tenant or of an individual was present on the premises with the tenant’s permission.7  The burden then shifts back to the landlord to show that the damage was caused by the tenant’s fault.8

• 1See generally Provosty v. Guss, 350 So. 2d 1239 (La. App. 4 Cir. 1977) (tenant not liable for certain cleaning, replastering and painting, a broken cabinet drawer, grease spots on the carpet, and dents in the threshold of the apartment); Lugo v. Vest, 336 So. 2d 972 (La. App. 4 Cir. 1976) (tenant not liable for replacement of a few light bulbs or the patching of a couple of small holes in the screens).
• 2Provosty, 350 So. 2d 1239; Lugo, 336 So. 2d 972.
• 3O’Brien v. Becker, 332 So. 2d 563, 564 (La. App. 4 Cir. 1976) (noting that the lessor attempted to recover the cost of painting materials, which could not reasonably be considered as “unusual wear” after over four years of occupancy and concluding that the damage penalty against the landlord was properly imposed).
• 4Nwokolo v. Torrey, 31,412 (La. App. 2 Cir. 01/20/99), 726 So. 2d 1055. In Nwokolo, the tenants sued for a return of their security deposit and statutory damages, and the landlord filed a reconventional demand for damages to the leased premises. Both parties prevailed on their claims, and the amount recovered by the tenants was almost equal to the amount awarded to the landlord. The court held that neither party was entitled to attorney fees and split the costs equally between the parties.
• 5Vinson v. Henley, 38,006 (La. App. 2 Cir. 01/28/04), 864 So. 2d 894.
• 6Calix v. Whitson, 306 So. 2d 62 (La. App. 4 Cir. 1977).
• 7Daigle v. Melancon, 442 So. 2d 657 (La. App. 1 Cir. 1983).
• 8Perroncel v. Judge Roy Bean’s Saloon, Inc., 405 So. 2d 626 (La. App. 3 Cir. 1981), rev’d on other grounds, 410 So. 2d 745 (La. 1982); cf. Speirer v. McIntosh, 342 So. 2d 238 (La. App. 4 Cir. 1977); Diaz v. Edward Levy Metals, Inc., 384 So. 2d 581 (La. App. 4 Cir. 1980) (holding that there must be a showing of some fault on tenant’s part).

A security deposit lawsuit may be filed in the parish in which the landlord is domiciled or in the parish where the property is situated.1

• 1La. R.S. 9:3252(B).

Security deposit claims are not governed by any specific prescription statute. Presumably, they are only limited by the 10-year prescriptive period established for claims based on contracts or personal actions.1

• 1See La. C.C. art. 3499.

A security deposit is the tenant’s property.1  Therefore, the burden of proof is on the landlord to show cause for the retention of the tenant’s deposit (property). In reality, however, a tenant’s success in recovering a security deposit depends heavily on the tenant’s ability to dispute the landlord’s retention with reliable evidence.

• 1In re Universal Sec. & Protection Serv., Inc., 223 B.R. 88, 93 (E.D. La. 1998); cf. La. C.C. art. 2926.

In a Chapter 13 bankruptcy, the tenant’s security deposit claim should be a priority claim.1  Generally, all priority claims must be paid in a Chapter 13 bankruptcy. A tenant should consider filing an objection to a Chapter 13 plan if it proposes to pay less than 100% of the claim for the deposit.

In a Chapter 7 bankruptcy, the tenant should argue that the security deposit is not part of the landlord’s bankruptcy estate and that the deposit belongs to the tenant.2  If the security deposit no longer exists, the tenant should file a proof of claim. This may be filed without the payment of any court costs. Although a Chapter 7 bankruptcy will discharge the debt, it is possible that a tenant’s judgment lien, if any, will survive the bankruptcy.

• 1Guarracino v. Hoffman, 246 B.R. 130 (D. Mass. 2000).
• 2In re Universal Sec. & Protection Serv., Inc., 223 B.R. 88, 93 (Bankr. E.D. La. 1998).