An affirmative defense in an eviction proceeding is one that raises a new matter not covered by the petition and that would defeat the plaintiff’s demand on the merits, even if the plaintiff proves all of the allegations in the petition.1 As such, it differs from a general denial.
A verified answer pleading an affirmative defense must be filed prior to the trial of the rule for possession to preserve the tenant’s right to suspensively appeal an eviction judgment rendered by a city, parish, or district court.2 Written pleadings are not required for evictions in justice of the peace court.3 As a practical matter, many justice of the peace courts offer no formal way to file any type of pleading.4
Thus, the first step in defending an eviction is the preparation of a verified answer to the rule for possession. The answer must be written, signed, and sworn to by the tenant under oath.5 As long as the verified answer is filed prior to trial, there is no other time requirement for filing.6 If no other affirmative defense is available, you should always plead the affirmative defense of judicial control.
Defenses vary according to the grounds for the eviction. The most common defenses to the major types of eviction are discussed in the following sections.
- 1Newport-Nichols Enters. v. Grimes, Austin & Stark, Inc., 463 So. 2d 111, 113 (La. App. 3 Cir. 1985) (holding that defendant’s defense of judicial control entitled the tenant to a suspensive appeal).
- 2A post-trial answer will not be considered. Williams v. Bass, 37,156-CA (La. App. 2 Cir. 05/14/03), 847 So. 2d 80; McMillan v. Chauvin, 281 So. 2d 181 (La. App. 4 Cir. 1973) (holding that sworn testimony asserting affirmative defenses and answer filed after trial but before judgment did not meet requirements of suspensive appeals). However, the court may extend time to file an answer in response to a motion for leave. Newport-Nichols Enters., 463 So. 2d 111.
- 3La. C.C.P. art. 4917. The landlord must still give a written notice to vacate that complies with due process, applicable laws, or lease provisions. The trial should be limited to the grounds stated in the notice to vacate.
- 4This practice provides further support for the argument that a verified answer is not required to suspend an eviction judgment from a justice of the peace court during the pendency of the trial de novo in the reviewing court. For a more extensive discussion of the requirement of a verified answer to preserve appellate review, see Section 7.1.1 (appeals from city, parish, or district court), and Section 7.3 (appeals from justice of the peace court).
- 5La. C.C.P. art. 4735; McMillan, 281 So. 2d 181 (testimony under oath is insufficient); Papa v. Sullivan, 268 So. 2d 326 (La. App. 2 Cir. 1972) (where answer filed timely but not verified under oath until after trial, suspensive appeal requirements not met).
- 6Newport-Nichols Enters., 463 So. 2d at 113.