12.5 Amount of Recovery

A tenant is entitled to the security deposit. If the landlord willfully fails to comply with the Louisiana’s Lessee’s Deposit Act, the tenant is entitled to an additional statutory penalty of the greater of either $300 or twice the amount wrongfully deducted plus court costs and attorney’s fees.1

The First and Fourth Circuits have held that failure to make a written demand for refund bars the tenant from recovering the statutory penalty and attorney’s fees.2  This holding is unsupported by the statutory language and contravenes prior jurisprudence. Properly construed, La. R.S. 9:3252 only creates a conclusive presumption that the landlord’s failure to remit after a written demand for a refund constitutes the “willful failure,” thereby triggering the statutory penalty. La. R.S. 9:3252 conditions the statutory penalty on willful non-compliance with La. R.S. 9:3251 (duty to return deposit and provide written itemization). It does not limit the statutory penalty to cases where the tenant has made a written demand for a refund.3  Nonetheless, tenants should provide the landlord with written demand for refund on the day the lease terminates in order to ensure the landlord’s liability for the heightened statutory penalty.

The landlord can be liable for the statutory penalty for the unjustified retention of any portion of the security deposit.4  However, in Provosty v. Guss, a landlord who properly retained less than one-third of the security deposit escaped the statutory penalty imposed by La. R.S. 9:3252.5  A landlord who does not provide a timely itemization can be liable for the statutory penalty even if there is a valid dispute as to the amount that is returnable.6

• 1La. R.S. 9:3252; see, e.g., Cantelli v. Tonti, 297 So. 2d 766, 769 (La. App. 4 Cir. 1974); Nwokolo v. Torrey, 31,412 (La. App. 2 Cir. 01/20/99), 726 So. 2d 1055.
• 2Maxie v. Juban Lumber Co., 444 So. 2d 181 (La. App. 1 Cir. 1983); Trapani v. Morgan, 426 So. 2d 285 (La. App. 4 Cir. 1983).
• 3Cf. Ball v. Fellom, 406 So. 2d 781, 783 (La. App. 4 Cir. 1981); Altazin v. Pirello, 391 So. 2d 1267 (La. App. 1 Cir. 1980); Curtis v. Katz, 349 So. 2d 362 (La. App. 4 Cir. 1977); Provosty v. Guss, 350 So. 2d 1239 (La. App. 4 Cir. 1977).
• 4See, e.g., Lugo v. Vest, 336 So. 2d 972 (La. App. 1 Cir. 1976) ($72.30 of $100 deposit withheld for replacement of a few light bulbs and for patching a couple of small holes in the screen).
• 5350 So. 2d 1239.
• 6See, e.g., Altazin, 391 So. 2d 1267.