3.2 Notice to Vacate

An eviction proceeding is initiated by delivery of written notice to vacate to the tenant.1  The notice to vacate is a mandatory part of the summary eviction procedure.2  The notice to vacate may be served when a tenant’s right of occupancy has ceased because of the termination of the lease by expiration of its term, by the landlord’s action, by nonpayment of rent, or for any other reason.3

Most landlords use the form notice to vacate provided by the courts. However, they may draft their own notices. The notice must describe the grounds for termination of the lease with specificity sufficient to allow the defendant to pursue a meaningful defense and satisfy due process.4  The lease or federal law may govern the contents of a notice to vacate.5  A notice to vacate that does not specify the grounds for eviction violates due process and may also be a violation of the lease terms; both should be argued if applicable.

The time for delivery of the notice to vacate will be determined by the grounds for the eviction. If the eviction is for good cause, such as failure to pay rent or other lease violations, a 5-day notice to vacate is required unless waived in the lease.6  When calculating whether a notice to vacate is sufficient, the date of delivery of the notice to vacate should not be included in the computation.7  The last day of the period should be included unless it is a legal holiday, in which case the period runs until the end of the next day that is not a legal holiday.8  Because the 5 days do not include legal holidays,9  the notice period is effectively a minimum of 7 days in parishes in which both Saturday and Sunday are holidays. Lease agreements may also stipulate a longer period. If a lease contains a notice to cure requirement, that notice must be a separate notice from the notice to vacate; the notice to vacate is premature prior to expiration of the cure period.10

When a tenant’s lease is expiring, the landlord can typically serve the tenant with a “no cause” notice to vacate at the end of their lease. The notice must be in writing and must be served at least 30 days before the end of a year lease, or 10 days prior to the end of the month for a month-to-month lease.11  The fact that a tenant is given a notice with a longer period than 10 days is not a fatal defect; the statute only requires a minimum of 10 days.12  If the tenant formerly had a written year lease that rolled over to month-to-month, the notice requirement in the original lease will apply to the new month-to-month term (typically 30 days). Grounds must be specified, but need only read that the landlord wants possession of the property or that the landlord no longer desires to rent to the tenant. Arguably, notice under Article 2728 may not be waived.13  The notice must be in writing.14  Notice under Article 2728 of the Civil Code satisfies the notice requirement of Article 4701 of the Code of Civil Procedure.

Service of the notice is accomplished by a court official, the landlord, or the landlord’s agent. However, if the premises are abandoned or closed, or if the whereabouts of the tenant or occupant are unknown, the notice may be attached to a door of the premises (i.e., service by tacking).15

To meet his burden of proof, a landlord must show proper notice or an applicable waiver.16

• 1La. C.C.P. art. 4701.
• 2Bowling U.S.A., Inc. v. Genco, 536 So. 2d 814 (La. App. 1 Cir. 1988) (cited by Pin Oak v. McSweeney, 2018-CA-1073 (La. App. 1 Cir. 02/26/19), 2019 WL 927186); see La. C.C.P. art. 5053.
• 3La. C.C.P. art. 4701.
• 4La. State Museum v. Mayberry, 348 So. 2d 1274 (La. App. 4 Cir. 1977); 200 Carondelet v. Bickham, 2017-0328 (La. App. 4 Cir. 10/25/17), 316 So. 3d 955. Apollo Plaza Apartments v. Gosey, 599 So. 2d 494 (La. App. 2 Cir. 1992).
• 5See Corpus Christi Hous. Auth. v. Love, 267 S.W.3d 222 (Tex. Ct. App. 2008) (housing authority eviction dismissed for failure to advise tenant of judicial eviction procedure to be used, as required by federal law); see also Apollo Plaza Apartments v. Gosey, 599 So. 2d 494 (La. App. 3 Cir. 1992) (acknowledging that failure of notice to state information that the lease requires of notices may be prejudicial).
• 6La. C.C.P. art. 4701; Tete v. Hardy, 283 So. 2d 252 (La. 1973). Most form leases in Louisiana do contain a waiver of notice provision.
• 7La. C.C.P. art. 5059.
• 8Id.
• 9Id; Rainey v. Bartholomew, 2022-0616 (La. App. 4 Cir. 2/13/23), 2023 WL 1960832.
• 10Second Zion Baptist Church #1 v. Jones, 2017-0926, p. 9 (La. App. 4 Cir. 04/18/18), 245 So. 3d 9, 14.
• 11La. C.C. art. 2728; Torco Oil Co. v. Grif-Dun Grp., Inc., 617 So. 2d 102 (La. App. 4 Cir. 1993). If no landlord-tenant relationship exists (e.g., the evictee is only an occupant), Article 2728 does not apply and a 5-day notice to vacate would suffice. See Ne. Realty v. Jackson, 36,276 (La. App. 2 Cir. 08/14/02), 824 So. 2d 1264 (decided under pre-2005 Civil Code Article 2686).
• 12Lilly v. Angelo, 523 So. 2d 899, 902 (La. App. 4 Cir. 1988).
• 13“A lease in which one or both parties have reserved the right to terminate the lease before the end of the term may be so terminated by giving the notice specified in the lease contract or the notice provided in Articles 2727 through 2729, whichever period is longer. The right to receive this notice may not be renounced in advance.” La. C.C. art. 2718. “[T]his notice” in the last sentence can be read to refer to “notice provided in articles 2727–2729.”
• 14La. C.C. art. 2729; Solet v. Brooks, 2009 CA 0568 (La. App. 1 Cir. 12/16/09), 30 So. 3d 96, 101; Houston v. Chargois, 98-CA-1979 (La. App. 4 Cir. 02/24/99), 732 So. 2d 71.
• 15La. C.C.P. art. 4703; see Fairfield Prop. Mgmt. Stone Vista Apartments v. Evans, 589 So. 2d 83 (La. Ct. App. 1991), French Quarter Realty v. Gambel, 2005-0933 (La. App. 4 Cir. 12/28/05), 921 So. 2d 1025.
• 16JoAnn Place v. Ricard, 2022-0456 (La. App. 4 Cir. 12/27/22); 356 So. 3d 518, 528.