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.