12.3.4 Damages to Premises

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).