The required elements of a repair-and-deduct remedy or defense under Article 2694 are:
- The repairs were ones that the landlord was obligated to make.
- The repairs were necessary.
- The tenant called on the landlord to make repairs.
- The landlord refused or failed to make these repairs after reasonable notice and demand.
- The tenant made the repairs following the landlord’s refusal or failure to make them.
- The price of the repairs was reasonable.
- 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.