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.