The following information is meant to provide general information, and does not constitute legal advice or opinion. Parties should seek legal counsel before seeking court redress.
GENERAL LANDLORD/TENANT LAW BASICS
- Failure of Landlord or Tenant to fulfill lease obligations entitles the other party to ask the court to dissolve the lease.
- However, dissolution of leases is not favored by law.
- Normally, while Tenant’s failure to pay rent is an “active” breach of the lease entitles Landlord to seek dissolution, that right is subject to judicial control according to the circumstances.
- If Landlord accepts rent “late enough and long enough,” the Landlord will not be permitted to cancel the lease unless it gives prior notice that it intends to enforce the payment provisions in a strict manner. This rule doesn’t hold true where the Landlord has made frequent and unsuccessful demands for the rent or where acceptance of tardy payments is because of unwilling and forced indulgence on the Landlord’s part.
- There is no “self help” allowed the Landlord (locking the doors, etc.) except in cases where the Tenant has abandoned the property. Since abandonment is a question of fact, Landlords should be proceed cautiously in the event they believe premises have been abandoned.
- Know your lease terms and conditions. The lease is the “law between the parties” except in some items where general Civil Code Articles may apply. Do not call the Court and ask for legal advice or opinions as to what a lease means, or ask the court to comment on your “situation.”
- When there has been a breach, the Landlord has several remedies, each of which are mutually exclusive:
- A. File a Petition of Eviction to gain possession of the premises. Landlord follows the summary procedures allowed by the Louisiana Code of Civil Procedure. The Landlord may also file a separate, ordinary action to recover past due rent and any damages to the property. By taking this approach, the Landlord can not seek future rent - only the amount of rent incurred while the tenant occupies the unit. The Rule for Eviction is summary in nature, and usually the hearing is held quickly. The Landlord may also file a separate suit for any past due rent and the rent that will accrue up through the point the Tenant has possessed the unit. This is an ordinary action, must be served and answered, and takes longer to resolve.
- B. Sue for accrued rentals and accelerate future rentals. This means the Tenant maintains possession of the property, and the Landlord may enforce the judgment as any other money judgment, ie, garnishments, seizures, etc. However, the Tenant maintains possession of the unit.
- C. If premises are abandoned, Landlord may sue for accrued and future rents, but Landlord has the obligation to re-rent the unit, and then must credit Tenant with rent received from new tenant. In fact, the Landlord steps into the shoes of the Tenant and basically acts as a sub-lessor. Therefore, any rent collected during the period the Tenant should have been in the unit is credited towards any amounts owed by the Tenant.
- By and large, most residential and apartment rentals involve option A, without a separate suit for recovery of accrued rentals. Landlord must give a 5 day “Notice to Vacate”. That is five business days, exclusive of holidays. At the end of that period, if tenant is still in possession, Landlord may file a Petition of Eviction. The Notice to Vacate requirement may be waived in writing, and that is usually the case in most Louisiana leases. However, the waiver should be for the full five days - not some type of clause setting the time limit to 3 days, or 2 days, etc. If Landlord gives Tenant some kind of notice that says “notice to vacate,” then Landlord has “waived the waiver” and is bound to wait the 5 days before a rule for eviction can be instituted.
- When the Petition for Eviction is based on non-payment of rent, the acceptance of any rent from the Tenant after the Notice to Vacate is given vitiates the effect of the Notice to Vacate and maintains the Tenant in possession. If the Petition for Eviction is based on some other breach of contract, the Landlord may accept rent, but depending on facts and circumstances, may have to refund a portion of the rent to the tenant.
- Because, as mentioned above, the law disfavors cancellation, here are some practical examples of payment issues and ways of handling them:
- A. Rent is $500. Tenant tenders $300 on the 5th of the month. Landlord can accept the partial payment, and then proceed with a Petition of Eviction because balance of rent was not paid timely. Meaning, acceptance of partial payments does not vitiate Landlord’s ability to seek cancellation of lease where balance is not paid. However, if Landlord files a petition for eviction with very little rent due and owing, the court is more likely to make Landlord accept payment from Tenant if Tenant has the funds by the date of hearing.
- B. No rent paid at all. Petition of Eviction filed on 15th, hearing set on 21st. Tenant contacts Landlord or comes to the hearing with all money, including late fees and court costs. Landlord may accept the money, and Petition is dismissed.
- C. No rent paid at all. Petition filed on 15th, Hearing set on 21st. Tenant is able to offer much of the rent, but is short $150. Landlord should not accept the money (unless he wants to dismiss his Petition), and should tell Tenant to appear in court. The Court can issue a Consent Judgment the day of hearing in which the terms and conditions of payment are set forth in writing. Typically, Judgment will be a two step procedure:
- “Defendant agrees to pay $400 by 5:00 pm 10/21/06; otherwise, Writ of Possession is enforceable. Further, Defendant to pay $150 by 5:00 pm 10/24/06; otherwise, Writ of Possession is enforceable.”
By this agreement, if Tenant does what he commits to do, he remains in possession. If not, then Landlord can evict him.
- D. Petition is filed on the 22nd, Hearing set on 28th. Now our facts are later in the month. At this point, if the Tenant is willing to pay the rent, late fee and court costs as in the examples above, it will not be held against the Landlord for still exercising the option of settling with the Tenant.
- E. No rent paid at all. Rule filed on 15th, Hearing set on 21st. A couple of days before the hearing, the Tenant places some of the rent owed in Landlord’s drop box. Landlord is not willing to accept Tenant’s offer of payment. A reasonable effort should be made by Landlord to notify Tenant that partial payment is not acceptable. If possible, give the payment back to Tenant, preferably with witnesses. Worst case, bring the payment with you to court and explain the attempted payment to the court.
NOTE: Managers/Owners have asked: “Do I have to take accept their money?” The answer is: “Sometimes yes, sometimes no.” There is no real economic reason not to accept rent, late fees and court costs from Tenant, especially when couched in terms of a Consent Judgment. Because the law disfavors dissolving the lease, and because it is subject to judicial control “according to the circumstances,” there should be no iron clad rule against accepting rent, late fees and court costs, regardless of when it is offered. Depending on the facts and circumstances, the court may order a short payment plan. Managers are sometimes laboring under the mistaken impression that because they’ve paid court costs, they feel they “deserve” or are entitled to a judgment of eviction. Remember, you are paying to be heard and to have a fair hearing. There may be some extenuating circumstances that merit giving the tenant additional time to pay what is owed.
- Accepting any money after the Judgment is rendered renders the Judgment null (unless payment has been in accordance with some form of Consent Judgment referenced above.) Accepting money after judgment has been issued does not create a pattern of accepting money late.
- Tenant is “causing problems” but manages to pay rent timely. Landlord should review lease and explore possibility of simply terminating lease. Most leases are written as 6 month leases that roll over into a month-to-month term. The easiest way to end the relationship (other than non-payment) is to simply terminate the lease. While a tenant may claim such termination is done on retaliatory grounds, the courts have held that either party may cancel a month to month lease at the canceling party’s discretion. Of course, all contracts must be perfomed in good faith. The court will determine whether such cancelations have been in good faith.
- Tenants are believed to be “causing problems” or causing other breaches of the lease agreement. If Landlord tries to evict Tenant based on something other than non-payment of rent, good evidence has to be brought into court to cover such breaches - Not hearsay, but actual witnesses, photographs, recordings, etc. Police reports and/or security guards reports are hearsay and not given great weight. Again, it is usually easier to terminate the lease based on expiration of the lease term than to litigate the alleged breach of lease.
- Repairs. The Landlord has the obligation to keep the Tenant in peaceable possession, and to maintain the premises in the condition fit for their purpose. If landlord fails to make a needed repair, Tenant can make the repair at his expense and withhold that amount from next month’s rent. Just as Tenants may not hold rent hostage for repairs, the Landlord can not hold failure to pay rent as an excuse not to make needed repairs. If the court finds Landlord has unreasonably failed to make needed repairs, the court won’t let the Tenant “live for free,” but will consider some type of set off in favor of the Tenant for Landlord’s failure to made the needed repairs. Tenants --you may also seek court dissolution or terminaion of your lease contract if the condition of the rental unit becomes unfit for the purposes intended. However, please be aware you can not hold your rent "hostage" for repairs. The proper way to handle a repair issue is to put the Landlord on notice in writing of the needed repair. Then, if Landlord fails to make the repair in a reasonable amount of time, you may make the repairs at your expense and deduct the repair cost from next month's rent. There are also instances where the use of the rental unit becomes wholly unusable due to natural disaster or other causes. The parties should consult legal counsel in those instances.
- Landlord may file suit for past due rent, and couple it with a Writ of Seizure to enforce Landlord’s privilege. This is a separate suit, and proceeds more slowly than the Petition For Eviction. All property seized must be stored at cost of Landlord until final judgment and Constable Sale. Very often, when a Tenant can not afford to pay rent, he does not have items that are exempt from seizure of a sufficient value to merit filing this type of action. However, this option should be considered if the circumstances justify its use.
- If premises are abandoned, Landlord may re-take possession and re-let the property. Extreme caution is recommended. Some Landlords are conservative and go through the eviction procedures where the value of property remaining exceeds $100. The court can not “recommend” what Landlord should do under a given set of circumstances.
- The security deposit is just that - security that is used as an offset against whatever the Tenant may owe the Owner. It is not lagniappe. Although most leases contain language that state that Tenant “forfeits” the security deposit if the Tenant fails to complete the term of the lease or abandons the lease, in reality it is to be used as an offset against whatever amounts are owed to Owner. For example:
- Brown rents a house to Doe for 12 months at $800 per month, with a $600 deposit. Doe abandons the property in the middle of month 4 without paying month 4's rent, and Brown is able to re-rent the home to another tenant at the beginning of month 6, but for only $700 per month. What does Doe owe to Brown?
- All of month 4 rent or $800. All of month 5 rent $800. Months 6 - 12 difference (6 X $100) $600. Subtotal $2,200 minus security deposit ($600). Net amount owed $1,600.
- In Louisiana, normally one can't sue for more damages than he has suffered. In breach of contract cases like those involving leases, this means adding up all damages (past due rent, damages to the property, etc). Once that amount is figured, then the deposit should be subtracted. Another way to think of it is as follows: Suppose you didn't request a security deposit. How much would you sue for? The same amount, but you wouldn't have had a deposit to use as an offset. That is why the deposit is not "extra."
- DEFENSES AND APPEALS -- According to the Louisiana Code of Civil Procedure, if a Tenant wants to preserve his appeal rights, he should file an Answer to the Petition of Eviction in writing, made under oath, pleading an affirmative defense entitling him to retain possession of the premises. A Tenant might contact Legal Aid or an attorney with assistance in handling his defense. Appeals may only be taken if an Answer has been filed properly. A suspensive appeal must be taken within 24 hours of the court's decision, and involves the Tenant putting up an appeal bond (usually 1 - 2 months' worth of rent) to stop the Writ of Possession from being executed. A Tenant may also take a devolutive appeal, but the Writ of Possession will still be executed.
RULE DAY PROCEDURES
For Landlords: Determine whether you can appear in court. Technically, a legal entity (such as a corporation, partnership, or limited liability company) may appear through officers and employees. An individual should not appear on behalf of another individual as that may constitute the “unauthorized practice of law.” LSA-R.S. 38:212 states in part:
C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting any claim, not exceeding five thousand dollars, or defense pertaining to an open account or promissory note, or suit for eviction of tenants on its own behalf in the courts of limited jurisdiction on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.
The beginning part of this statute refers to "courts of record." Since Justice of the Peace Courts are not courts of record, arguable this statute might not apply. Therefore, property management companies may appear on behalf of individual owners. Ideally, the owner should be a “partnership, corporation, or other legal entity.” However, if the lease is executed between the property management company and the tenant, then the property management company may pursue the eviction on its own behalf.
Bring your file on the unit, and a copy of the lease if the lease agreement is in writing.
If you are trying to cancel the lease due to some breach other than non-payment, make sure you have sufficient evidence to prove your case. Police Reports are hearsay and inadmissible.
For Tenants: File an Answer before court if you want to preserve your appeal rights. Bring evidence of payment of rent or notices/receipts of payment for needed repairs.
The court will swear Landlord, Tenant and any witnesses in for testimony. Typically, the court will ask if Landlord has accepted or received any rent since filing the Petition for Eviction. “Accepting” means you’ve taken money from the tenant, thus ending the procedure. “Received” means the tenant has tendered payment, but at the moment you are not accepting the payment. The court expects full disclosure of all relevant facts at the hearing.
Do not assume the court will rule in your favor. The Landlord bears the burden of proof, and as mentioned above, dissolution of leases is not favored by the law. Your payment of court costs is for the opportunity to have your case heard and considered - it is not payment for a judgment.
PUT OUT PROCEDURES
- The Judgment will give the Tenant 24 hours to deliver possession. Depending on the schedule of the Constable’s office, he will try to accommodate Landlords as quickly as possible. However, there are many things Landlord can do to help:
- Post another Notice (provided by Constable) that notifies Tenant a Judgment has been rendered, and that Constable will be there the next day to execute the Writ of Possession. It doesn’t mean the Constable will be at the unit in exactly 24 hours. In fact, he will not show up unless you and he have made a specific appointment. You should check the unit sometime after the hearing to ascertain whether the Tenant is still in the unit, then call the Constable to discuss setting up an appointment.
- If the premises have personal possessions, and there are no signs of an attempted move, and the Tenant did not show up at court, my instructions to the Constable are to “slow down.” It is neither “normal” nor reasonable for people to allow their personal effects to be put out on the street. Therefore, the Constable and/or Court will probably require the Landlord to give names of relatives, employment or work numbers, etc in an attempt to locate the Tenant. These efforts are done in as much of an effort to err on the side of caution and help the Tenant as they are to protect the Landlord from future litigation. Therefore, please be cooperative and know that the Constable is merely trying to assure the Tenant has had adequate notice, and is not lying in a hospital in a coma completely unaware of what is happening!
- Have sufficient manpower available to execute the Writ of Possession in one hour. Very often the Constable must wait on moving personnel, which in turn impacts his ability to serve pleadings and execute writs of possession at other locations. Accepting funds from the Tenant after the Constable arrives is acceptable, but we ask that every effort be made to obtain payment prior to scheduling the Constable for a put out.
- At least 2 people are needed to execute the Writ of Possession or do the “put out.” The Constable’s office would like to see 2 movers for a one bedroom apartment, and then one additional mover for each additional bedroom. Remember, if the Constable has to spend a lot of time doing put-out’s, he can’t serve the Petitions of Eviction, which in turn means the court dates for evictions can not be set as quickly. We appreciate everyone’s cooperation in this regard.
- Sometimes the Constable will allow tenants to move themselves, and sign over possession to the Landlord for a certain time. Often this means the Landlord can change locks at the appointed time, and treat any items left in the apartment as abandoned. If the tenant then tries to re-enter the unit, the Landlord may contact the sheriff or police department as that would constitute the criminal offense of trespassing.
- The Constable can not “ban” a former Tenant from a property. As long as the former Tenant is the guest or invitee of another Tenant, then he is considered a visitor like anyone else. If the former Tenant is not a guest or invitee, then Landlord can call police or sheriff’s office and have the person picked up for loitering or trespass.