Louisiana Landlord-Tenant Law: Recommendations and Best Practices for Adopting Stronger Tenant

Louisiana Landlord-Tenant Law: Recommendations and Best Practices for Adopting Stronger Tenant Protections in Louisiana Statutory Law Submitted to: Louisiana State Senate – Committee on Judiciary A By: Louisiana Housing Alliance

The Louisiana Housing Alliance (LHA) submits these comments in response to Senate Resolution 195, adopted on June 6, 2013. The Resolution “urge[s] and request[s] the Senate Committee on Judiciary A to study the laws applicable to the rights of landlords and tenants,” including the Uniform Residential Landlord and Tenant Act of 1972 (URLTA), and to provide a written report of its findings, along with proposed legislation, by February 1, 2014. We hope the information and recommendations that follow will inform such a report and proposed legislation. Please contact Marla Newman, executive director of LHA, at [email protected] to discuss further. I.

Summary

Louisiana law fails to protect tenants in a variety of ways, including the following four areas of landlord-tenant law identified as priority areas by the Louisiana Housing Alliance, Southeast Louisiana Legal Services, and other local partners: (1) notice of eviction, (2) notice of rent increase, (3) landlord retaliation, and (4) making repairs. Louisiana’s failure to adequately protect tenants in these priority areas often leaves tenants with limited and undesirable options, including living in substandard housing conditions or exhausting already limited resources in pursuit of more adequate housing. Furthermore, Louisiana landlord-tenant law is not codified in one section of state law. Provisions of the Louisiana Civil Code, the Louisiana Code of Civil Procedure, and state Contract law, as well as case law, all govern disputes between landlords and tenants, making the law confusing, difficult to locate and unpredictable. Based on a review of Louisiana’s provisions in the priority areas listed above, the relevant laws in surrounding states, and URLTA, we recommend the following in order to adequately protect Louisiana’s most vulnerable tenants: Eviction 1. A landlord must provide at least 30 days’ notice to terminate a lease. 2. A landlord may only terminate a lease “with cause.” 3. A tenant must have a right to cure a breach before eviction occurs.

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4. A landlord may not bring an eviction proceeding against the same tenant within 30 days of a previous proceeding. Rent Increase 5. The statute should specify that rent is a term of the lease, the altering of which is subject to proper notice requirements. 6. A landlord must provide at least 30 days’ notice to a tenant of his/her intention to increase rent. Retaliation 7. The statute should expressly prohibit retaliation by a landlord against a tenant who exercises his/her rights and create a rebuttable presumption of retaliation when a landlord commences an eviction of a tenant within 6 months of a tenant complaint. Retaliatory conduct can include eviction, an increase in rent or a reduction in services in response to the tenant’s attempt to secure rights under the lease. Repairs 8. The statute should require that the landlord make a repair within fourteen days of being notified by the tenant. After 14 days have elapsed, a tenant can make the repairs him/herself and safely deduct the costs of the repairs from the rent. 9. The statute should allow the tenant to seek substitute housing when there is a loss of essential services, and free the tenant of the obligation to pay rent until the repair has been made. Other 10. The statute should include a provision regulating how and when a landlord can impose a change to the existing rental agreement, including requirements about notice and the tenant’s written consent. 11. A landlord must provide tenants with a handbook on their rights and responsibilities at the time the landlord delivers the property to the tenant. Below we describe the provisions of Louisiana state law governing the tenant protection priority areas that are in need of improvement. We compare these to relevant provisions of URLTA and to neighboring states Mississippi, Alabama and Tennessee. URLTA was enacted to create a uniform set of laws to govern landlord-tenant disputes. Twenty-one states have adopted URLTA or some version of URLTA, including Mississippi, Alabama, Tennessee and Georgia. It is important to note that URLTA is currently being revised to incorporate best practices that have evolved in state landlord-tenant law since its initial adoption in 1972. With the revisions of URLTA, the new standard for landlord-tenant law will be heightened. That said, if Louisiana continues to use an antiquated system of law, it will fall even further behind. Not only do the comparison states have landlord-tenant laws codified in one set of statutes, making it easier for tenants to locate and understand their rights, these states offer

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stronger tenant protections in the priority areas. Each of these states has based its own Residential Landlord-Tenant Act on URLTA; however, none of these states represent the ideal standard, as the strength of the tenant protections found within the priority areas vary widely. Therefore, the provisions we have included should only be considered as a starting point with much room for improvement. II.

Notice of Eviction

Under Louisiana law, there is no requirement that a landlord must have “good cause” to evict a tenant, and the amount of required notice is unreasonably short. Further, Louisiana law does not provide the tenant with a right to cure, meaning a tenant is not given a fair opportunity to correct the conduct that was used as the basis for the eviction. A.

Louisiana Law

Under Louisiana state law, there is no requirement that a landlord must have “good cause” to evict a tenant, but rather the terms of the lease dictate for what reasons a landlord may choose to evict.1 The eviction process varies depending on whether the tenant holds a lease for a fixed term or for a periodic tenancy. A lease with a fixed term terminates upon the expiration of the specified term, and does not require notice to terminate the lease.2 If the tenant does not vacate the premises upon the expiration of the lease, and the landlord seeks to obtain possession of the occupancy, the landlord must deliver a written notice to vacate to the tenant.3 This notice to vacate must allow the tenant at least 5 days to vacate the premises and is required for the termination of all fixed term leases, regardless of the cause.4 Although a 5-day notice to vacate the premises may be given for any cause, Louisiana case law directs landlords to specify the reason for termination in the notice to vacate.5 If the notice received is deficient in some manner, the tenant may use that as a defense in an eviction proceeding.6 For example, notice that the tenant is to contact the landlord without stating the reason regarding the landlord’s intention to terminate the lease, has been found to be inadequate notice to vacate.7 This protection afforded by the courts is not currently codified in Louisiana state law.8 Moreover, Louisiana state law allows for a tenant to waive his right to a 5-day notice to

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Telephone interview with Southwest Louisiana Legal Services Housing Attorneys (Oct. 4, 2013). Louisiana Code of Civil Procedure Article 2720. 3 La. Code Civ. Proc. art. 4701. 4 Id. (Previous to the 2004 legislative revisions to Louisiana Civil Code articles 2668 to 2744 governing leases, time requirements for notices were dependent upon the circumstances of the termination. However, the official revision comment to Article 4701 states: “[t]his article covers all cases of termination of lease, regardless of the cause, and fixes a notice period of five days.”). 5 Louisiana State Museum v. Mayberry, 348 So.2d 1274 (La. App. 4th Cir. 1977). 6 Telephone Interview supra note 1. 7 Buchanan v. Daspit, 245 So.2d 506 (La. App. 3d Cir. 1971). 8 Telephone interview supra note 1. 2

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vacate by a written waiver clause in the lease.9 If the tenant waives his right to a notice to vacate the premises, then a landlord wishing to terminate a lease for any reason may initiate eviction proceedings without any notice.10 This option in the law allowing a waiver provision in a lease leaves the tenant vulnerable to detrimental hidden lease provisions. Under Louisiana state law, a lease with an indeterminate term, such as a month-to-month lease, must be terminated by a written notice, and is subject to specific time requirements.11 The notice to terminate a lease with an indeterminate term also acts as a notice to vacate, meaning a separate notice to vacate is not necessary as it is with a fixed term lease.12 The specific time requirements are as follows: “(1) for a lease whose term is longer than a month, written notice must be given 30 days before the end of that time period; (2) in a month-to-month lease, written notice must be given 10 days before the end of that month; and (3) in a lease whose term is equal to or longer than one week but shorter than one month, written notice must be given 5 days before the end of that time period.”13 If a lease does not have a specified term, the default presumption will be to treat the lease as one with a month-to-month indeterminate term.14 B.

Uniform Residential Landlord Tenant Act

Unlike Louisiana law, URLTA provides the amount of notice required to terminate a lease for various reasons, including when a tenant is non-compliant with lease provisions or when the rent goes unpaid at the time it is due. If a tenant is compliant with the rental agreement, and is paying her rent, URLTA leaves little room for a landlord to have a reason to evict his tenant. This differs from Louisiana in that under Louisiana law, a landlord may write whatever the reason to evict is into the notice to vacate. Where a tenant is noncompliant with a rental agreement, the landlord may terminate the rental agreement and must provide the tenant with at least 30 days’ notice.15 The notice must be written and explain the acts and/or omissions constituting the breach and specify the date upon which the rental agreement will terminate. In general, if the breach is not corrected within 14 days after the notice has been provided, the rental agreement will terminate on the date specified in the notice.16 However, this is subject to some exceptions and alternatives. In situations where the tenant’s breach can be remedied by repairs, payment of damages, or any other adequate remedy provided by the tenant, and the tenant subsequently makes such repairs before the termination date specified in the notice, then URLTA states that the rental agreement shall not terminate.17 This is a substantial protection that affords a tenant the “right to 9

La. Code Civ. Proc. art. 4701. Id. 11 Louisiana Civil Code Article 2727. 12 La. Code of Civil Proc. art 4701. 13 La. Civil Code art. 2728. 14 Id. at. 2680. 15 URLTA at § 4.201(a). 16 Id. 17 Id. 10

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cure” or correct the problem for which he/she is being evicted. However, if within 6 months the tenant again breaches the rental agreement in substantially the same manner as provided for in the previous notice to terminate, the landlord may terminate the rental agreement by written notice upon at least 14 days’ notice.18 URLTA permits a landlord to provide less notice when a tenant has not paid rent at the time rent is due.19 In this situation, only 14 days’ notice is required.20 If the landlord has provided a written notice to the tenant, specifying that the rental agreement will terminate if rent is not paid within 14 days, and subsequently the tenant still does not pay the rent within the 14day period, URLTA states that the landlord may then terminate the rental agreement.21 URLTA does not direct the landlord to provide further written notice of eviction in addition to the original notice given to the tenant alerting her of the unpaid rent and of the landlord’s intention to terminate the rental agreement. When a landlord intends to terminate a periodic tenancy, one with an indeterminate term, he must provide 10 days’ notice for a week-to-week tenancy and 60 days’ notice for a month-tomonth tenancy.22 These notice requirements are for “no cause” terminations, presumably for when a landlord wishes to end a periodic tenancy due to the natural expiration of the month-tomonth or week-to-week term. Further, there is no provision in URLTA which separates the reasons allowing a landlord to terminate periodic tenancies from longer duration tenancies, and so it implies that the 30-day notice requirement for breach of the rental agreement and 14-day notice requirement for non-payment of rent apply to periodic tenancies as well.23 C.

Surrounding Jurisdictions’ Landlord-Tenant Laws

Alabama law is similar to URLTA in that it expressly states the reasons a landlord may terminate a rental agreement as well as it makes clear the amount of notice afforded to tenants in each situation. However, under Alabama law, the tenant is afforded less protection in the actual amount of notice he receives. This is still a stronger protection than under Louisiana law, where the tenant is provided little notice at all and no right to cure. Under Alabama law, if a landlord wishes to terminate the lease because of material noncompliance with the rental agreement, a misrepresentation in the rental agreement or noncompliance with health and safety, the landlord must provide at least 14-days’ notice to the tenant.24 If the tenant is able to remedy the breach within 14 days, the lease shall not terminate.25 However, a breach due to an intentional misrepresentation on behalf of the tenant in the rental

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Id. Id. at § 4.201(b). 20 Id. 21 Id. 22 Id. at § 4.301(b). 23 Id. 24 Alabama Code § 35-9A-421(a). 25 Ala. Code at § 35-9A-421(a). 19

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agreement cannot be remedied.26 Additionally, to terminate periodic tenancies under Alabama law, 7 days’ notice to terminate is required for week-to-week tenancies, and 30 days’ notice is required for month-to-month tenancies.27 Under Alabama law, a tenant who is in breach of the rental agreement due to nonpayment of rent receives 7 days’ notice.28 If the tenant is in breach due to unpaid rent and an additional noncompliance, the 7-day notice will govern.29 However, if a landlord accepts rent during a period of default on the part of the tenant, the acceptance of such rent constitutes a waiver of the landlord's right to terminate the rental agreement for that breach.30 Unlike provisions contained in URLTA, Alabama statutes do not include provisions stating that in a situation where a tenant is put on notice of a breach, and within a 6-month time period the tenant is non-compliant in a substantially similar manner; the landlord may terminate the lease with less notice given to the tenant.31 The provision was intentionally removed in Alabama law, and provides an additional tenant-protection in that if within 6 months of a prior remedied breach a tenant breaches in the same way, he is afforded the full amount of notice. Under Mississippi law, the tenant is afforded greater protection regarding notice of eviction. Mississippi law requires the landlord to provide at least 30 days’ notice for material non-compliance with the rental agreement.32 Additionally, similar to Alabama, Mississippi allows the tenant a right to cure the breach, giving the tenant a “reasonable time” to remedy the breach.33 What constitutes a reasonable time is not specified. If the tenant successfully remedies the breach, the rental agreement will not terminate. Unlike Alabama, Mississippi kept the URLTA provision allowing a landlord to provide less notice when a tenant has a reoccurring breach within 6 months of a breach that was already provided notice.34 While Alabama and URLTA provide less protection for a tenant who breaches the rental agreement due to non-payment of rent, Mississippi has the biggest gap in the amount of notice required. Mississippi law expressly states that a tenant in default of rent is not entitled to the 30day notice requirement afforded for other breaches.35 When a tenant is in breach of the rental agreement for non-payment of rent, such a situation is governed under antiquated landlord-tenant law, as opposed to Mississippi’s uniform landlord-tenant statutes. Under Mississippi law, when the rent is unpaid at the time it is due, the landlord must provide only 3 days’ notice, but must also allow the tenant a right to cure by paying the rent owed.36 Mississippi case law directs that a 26

Id. Id. at § 35-9A-441. 28 Id. at § 35-9A-421(b). 29 Id. 30 Id. at § 35-9A-424. 31 URLTA at § 4.201(a). 32 Mississippi Code Ann. § 89-8-13. 33 Miss. Code Ann. at § 89-8-13(3) (while this right to cure is an added tenant-protection, the time a tenant is afforded is not specified, leaving the interpretation of “reasonable time” up to judicial interpretation.). 34 Id. at § 89-8-13(3)(b). 35 Id. at § 89-8-13(5). 36 Id. at § 89-7-27. 27

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notice to vacate upon a tenant in default of rent does not satisfy the notice requirements because it does not allow the tenant a chance to pay the rent owed.37 D.

Recommendation

We recommend that Louisiana adopt a 30-day notice requirement for termination of a lease when a tenant is non-compliant with the rental agreement, including non-payment of rent. Ideally, this 30-day requirement would apply to both annual and periodic tenancies. Further, we recommend the adoption of a 14-day right to cure, giving the tenant an opportunity to correct the breach in circumstances where the breach is remediable by repair or by the payment of rent or damages. III.

Notice of Rent Increase

Under Louisiana law, if a landlord wishes to increase a tenant’s rent, he is not required to provide any notice. A.

Louisiana Law

Louisiana state law does not contain specific provisions concerning the appropriate amount of notice that should be given to a tenant when the landlord intends to increase the rent. The current state of the law regarding an increase in rent represents a change since 2004. In 2004, the Louisiana legislature enacted revisions to the Louisiana Civil Code provisions governing leases. Prior to the 2004 revisions in the law governing leases,38 a landlord could not unilaterally increase rent in a month-to-month lease unless a 10-day notice was given prior to the expiration of the current rental month.39 This was because a rent increase made unilaterally by the landlord denoted a new lease agreement, terminating the previous lease, and triggering the 10day notice requirement for termination afforded to a month-to-month tenant.40 However, the 2004 revisions legislatively overruled this practice with the enactment of La. Civil Code section 2726.41 As the law stands today, a change in the amount of the stipulated rent does not represent a change to the lease agreement, creating a new lease.42 A new lease is created only when both parties intend to do so and have agreed upon the new term.43 Therefore, it is presumed that a unilateral change in the rent for a month-to-month tenancy no longer represents a termination of the lease, and no longer triggers the notice requirement. Due to this change, tenants with month-to-month leases are left particularly vulnerable because a landlord can unilaterally decide to increase the rent without notice. 37

Williams v. Shivers, 222 Miss. 626, 76 So.2d 838 (1955). In 2004, legislative revisions to the Louisiana Civil Code articles 2668 to 2744 were enacted. 39 La. Civ. Code 2728. 40 Id. 41 Louisiana Civil Code Article 2726 reads: “[a]n amendment to a provision of the lease contract that is made without an intent to effect a novation does not create a new lease.” 42 Peter S. Title, 2 LA. PRAC. REAL EST. § 18:9 (2D ED.) (2013). 43 Id. 38

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B.

Uniform Residential Landlord Tenant Act

Similar to Louisiana law, URLTA does not have a specific provision regarding adequate notice for an increase in rent. However, URLTA does contain a provision governing when a unilateral change or adoption of a new rule takes place by a landlord. If the rent amount is expressed in a rental agreement, and therefore is considered a rule or regulation of the rental agreement, then URLTA requires certain conditions be met before a landlord can change or increase the rent. URLTA provides that a landlord and tenant may include the terms and conditions of how rent will be paid in the rental agreement.44 A rental agreement may be written or oral and encompasses all agreements, rules and regulations concerning the terms and conditions of the use and occupancy of a dwelling unit.45 A landlord is permitted to adopt a rule or regulation regarding the tenant’s use and occupancy of the premises, but subject to strict limitations.46 Such a rule or regulation is enforceable against the tenant only if the tenant has notice of the new regulation at the time she enters into the rental agreement, or when it is adopted.47 The amount of notice a landlord must provide is not specified. If an increase in rent is considered an adoption of a rule or regulation as intended by this provision, then the tenant is entitled to notice of the rent increase if the rental agreement does not include a provision regarding periodic rent increases or a similar provision previously agree upon. This notion is further supported under URLTA §3.102(b), which states: “if such a rule or regulation is adopted after the tenant enters into the rental agreement that works a substantial modification of his bargain it is not valid unless the tenant consents to it in writing” (emphasis added).48 This section should govern an increase in rent, as an increase in rent would be a rule or regulation adopted after the tenant enters into the rental agreement, and that has the effect of substantially modifying the tenant’s bargain under the lease. Further, if there is an express rent amount stipulated in the rental agreement and a contested rent increase takes effect, the tenant may bring an action for breach of the rental agreement.49 C.

Surrounding Jurisdictions’ Landlord-Tenant Laws

Similar to URLTA, neither Alabama nor Mississippi state law contains a specific provision governing the amount of notice required by a landlord to increase rent. However, both do contain provisions similar to the one cited in URLTA, which imposes certain conditions a landlord must meet in order to adopt a rule or regulation or change regarding the rental agreement. Under Alabama law, the rental agreement means the original agreement made

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URLTA at § 1.401(a). Id. at § 1.301(11). 46 Id. at § 3.102(a). 47 Id. at § 3.102 (a)(1)-(6). 48 Id. at § 3.102(b). 49 Id. at § 4.101(b). 45

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between the landlord and the tenant as to the use of the premises.50 Under Mississippi, the rental agreement means all agreements, rules or regulations adopted concerning the tenant’s use and occupancy of the premises.51 Under both states’ laws, a rule or regulation adopted by a landlord is only enforceable against a tenant if the landlord meets certain conditions, which includes providing notice to the tenant at the time the rule or regulation is adopted or at the time the tenant and landlord enter into the rental agreement.52 The amount of notice required is not specified in either. This provision protects tenants in that it invalidates rules unilaterally made by landlords and provides a complete defense to many evictions.53 Alabama’s law does vary from the corresponding URLTA provision in that instead of prohibiting the unilateral adoption of a rule or regulation that works a substantial modification of a tenant’s bargain, it governs a rule or regulation that works “a substantial modification of the tenant's use of the leased premises.”54 This variation in the Alabama law may be interpreted as less related to an increase in rent and more a rule or regulation such as not allowing pets or prohibiting subleasing. However, the Alabama provision continues to provide that in the case of any “variance between the lease and a rule or regulation, the lease prevails.”55 This provision provides more tenant protection in that if the lease has an express amount of the rent due, and the landlord tries to unilaterally increase the rent, Alabama law governs and states that the amount of rent stipulated in the lease would prevail. While Mississippi and Alabama do not specifically state that their statutes governing how a landlord may adopt a rule or regulation is intended to cover a rent increase, other jurisdictions do. In Washington, a state whose landlord-tenant laws are also based on URLTA, a landlord cannot change any aspect of a lease during the tenancy except by mutual agreement.56 The statute expressly includes rent as a term of the lease. If the landlord wishes to increase the rent, he must provide at least 30 days’ notice, and the increase will come into effect only after the expiration of the tenancy.57 Therefore, rent is fixed for the duration of the tenancy.58 However, for month-to-month tenancies it is easier for a landlord to increase rent, due to the short duration of the tenancy. Washington’s 30-day notice period helps protect tenants in this situation. For a month-to-month tenancy, 30 days’ notice is still required if a landlord intends to

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Comment to Ala. Code § 35-9A-141 (“[r]ental agreement” will thus include the original agreement between landlord and tenant as well as any modification and all valid rules and regulations concerning use and occupancy as provided in Section 3.102. 51 Miss. Code Ann. § 89-8-7(1)(i). 52 Ala. Code § 35-9A-302(b)(6) ; Miss. Code Ann. § 89-8-11. 53 Lawrence F. Gardella, NEW LANDLORD-TENANT ACT MAKES IT EASIER FOR LEGAL SERVICES AND VLP LAWYERS TO HELP LOW-INCOME TENANTS, 68 Ala. Law. 41 (Jan. 2007) (article discusses how Alabama’s adoption of a Uniform Landlord-Tenant Act, similar to URLTA, has aided in the protection of low-income tenants). 54 Ala. Code § 35-9A-302(c). 55 Id. 56 Rule Changes and Rent Increases, available at www.tenantsunion.com (last visited Nov. 27, 2013). 57 Wash. Rev. Code Ann. § 59.18.140. 58 Id. 9

increase the rent and the increase will only go into effect in the first full month following proper notice.59 D.

Recommendation

We recommend Louisiana adopt a similar provision to that found in URLTA, Mississippi, Alabama and Washington governing how and when a landlord may adopt a rule or regulation pertaining to the rental agreement. Further, we recommend that Louisiana put in place added protections by expressly stating the provision would apply to the situation of an increase in rent, therefore stating that the landlord must provide notice of his intention to increase the rent, as it does in Washington. If the landlord provides notice of the rent increase that is to take effect at the natural expiration of a lease, and the tenant is unable to afford the new rent amount, we recommend that there be protection in place allowing the tenant adequate time to secure other housing. This protection would take the form of a 30-day notice specifying the landlord’s intent to increase the rent when the existing lease is said to expire. IV.

Landlord Retaliation

Under Louisiana law, a tenant is not protected against retaliatory conduct by the landlord. Even with the “abuse of right” doctrine sometimes afforded by the courts, rarely do the courts rule in favor of the tenant. A.

Louisiana Law

Landlord retaliation occurs when the tenant attempts to improve the quality of living conditions, and as a result the landlord retaliates against the tenant, most commonly through eviction. Under Louisiana law, there are no specific provisions concerning landlord retaliation. However, some courts may recognize the abuse of right doctrine. An abuse of right occurs when someone appears to exercise an individual right, but does so with the intent to harm.60 Retaliatory eviction may be considered an abuse of right, because it is the termination of a lease or the refusal to renew the lease in response to the tenant’s attempt to secure rights under the lease. Louisiana courts have determined that an abuse of right has occurred where one of the following conditions are met: “(1) the predominant motive for the exercise of right is to cause harm; (2) there is no serious or legitimate motive for exercise of the right; (3) the exercise of the right violates moral rules, good faith, or elementary fairness; or (4) the exercise of right is for a purpose other than that for which it is granted.”61 A review of case law reveals that while courts in Louisiana have recognized that a tenant may bring an abuse of right claim in an eviction proceeding, courts rarely if ever rule in favor of a tenant bringing this claim. Even if the tenant 59

Housing Resource Group v. Price, 92 Wash. App. 394 (1998). Mark Moreau, Louisiana Landlord-Tenant Law. Page 471. 61 See Steir v. Heller, 732 So. 2d 787 (La. App. 2nd Cir. 1999) (where plaintiffs were unable to prove that defendants’ exercised their right to give notice to vacate with the intention to cause harm, as defendant’s had knowledge of plaintiff’s high-risk pregnancy and the potentially grave impacts on the pregnancy.). 60

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can establish that an abuse of right has occurred, the eviction will still proceed. The court may merely grant a tenant more time to vacate the property.62 Failure to actively prohibit landlord retaliation often keeps tenants from reporting property conditions that negatively impact their health and safety as they fear any attempt to exercise this right leaves them vulnerable to possible eviction, forcing them to exhaust the few resources available to them to find a new, and potentially more expensive, home. B.

Uniform Residential Landlord Tenant Act

Unlike Louisiana law, URLTA contains specific provisions prohibiting a landlord from retaliating against a tenant who has taken steps to improve his or her living conditions by attempting to secure rights under a rental agreement. Under URLTA, a landlord may not retaliate by increasing rent, decreasing services, or bringing or threatening to bring an action for possession of the property, after a tenant has complained to the landlord concerning the failure to maintain the premises, and/or complained to a governmental agency responsible for enforcing building or housing code violations.63 Additionally, a landlord may not retaliate against a tenant who has organized or joined a tenant’s union or similar organization.64 A tenant may use evidence of retaliatory conduct as both an affirmative defense in an eviction proceeding or as an independent cause of action against a landlord.65 If a tenant provides evidence that establishes he complained within a year before the alleged act of retaliation, a rebuttable presumption is created, requiring the trier of fact to presume the landlord’s conduct was in retaliation to the tenant’s complaint.66 If the trier of fact determines that the landlord’s conduct is retaliatory in nature, the tenant is entitled to recover possession of the property or terminate the rental agreement. Additionally, the tenant is entitled to recover no more than three months’ rent or actual damages and reasonable attorney’s fees.67 C.

Surrounding Jurisdictions’ Landlord-Tenant Law

Mississippi, Alabama and Tennessee expressly prohibit landlord retaliation. Under Alabama law, a landlord is prohibited from retaliating against a tenant who has complained to a governmental agency concerning the landlord’s failure to maintain building code standards materially affecting the tenant’s health and safety, complained to the landlord concerning the landlord’s failure to maintain the property, or has joined a tenant association.68 Furthermore, where it has been determined that the landlord has acted in retaliation, Alabama law allows a tenant to terminate the lease, recover damages of no more than three months’ rent and recover

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Telephone Interview supra note 1. URLTA § 5.101(a). 64 Id. 65 Id. at § 5.101(b). 66 Id. 67 Id. at § 4.107. 68 Ala. Code § 35-9A-501(a). 63

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attorney’s fees.69 Additionally, the tenant is entitled to a return of the security deposit and any prepaid rent.70 While Alabama’s landlord retaliation provisions are codified using the language of URLTA, Tennessee and Mississippi’s provisions are codified differently, but still intend to protect the tenant from retaliation in a similar way. According to Tennessee’s landlord-tenant laws, a landlord may not evict a tenant from the property or penalize the tenant in some other way, if the tenant pursues a claim against the landlord for failing to maintain the property according to Tennessee health standards.71 According to Mississippi’s landlord-tenant laws, the landlord may recover possession of the dwelling unit, cause the tenant to quit the dwelling unit involuntarily, demand an increase in rent or decrease the services to which the tenant has been entitled once the lease has expired, only if such actions by the landlord did not have the dominant purpose of retaliation against the tenant for his actions authorized under this chapter and the landlord received written notice of each condition which was the subject of such actions of the tenant.72 While Mississippi’s statute concerning retaliation may seem unclear, Mississippi Legal Services has interpreted the statute to expressly prohibit retaliation on the part of the landlord where a tenant has attempted to secure rights granted by Mississippi’s Residential LandlordTenant Act, including the tenant’s rights related to repairs.73 D.

Recommendation

Similar to the URLTA provisions regulating retaliatory conduct, we recommend that the Louisiana Legislature not only codify an express prohibition against retaliation, but also include a rebuttable presumption of landlord retaliation. Under a rebuttable presumption, it will be assumed that the landlord’s conduct was in retaliation if the tenant can provide evidence that the conduct was in response to the tenant’s effort to secure rights under the lease. V.

Repairs

Under Louisiana law, the tenant must follow a strict process in order to be protected from unnecessary costs due to making repairs of the rental unit. Often, tenants are unaware of the precise steps in the process and are left paying the costs. A.

Louisiana Law

Generally, Louisiana’s “repair and deduct” process allows a tenant to undertake repairs that become necessary when a landlord fails to maintain the property as required, and the tenant has notified the landlord of such failure. Louisiana law includes provisions that allow a tenant to

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Ala. Code § 35-9A-407. Id. at § 35-9A-207. 71 Tenn. Code Ann. § 66-28-514. 72 Miss. Code Ann. § 89-8-17. 73 Mississippi Legal Services, Landlord-Tenant Law in Mississippi, available at mslegalservices.org (last visited Nov. 7, 2013). 70

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make reasonable repairs and subsequently deduct the cost of the repairs from the rent. These provisions may be used as an affirmative defense in an eviction proceeding for the nonpayment of rent.74 However, if the tenant does not strictly follow the process described in the repair and deduct provisions, a judge is unlikely to rule in the tenant’s favor.75 This strict application of the law assumes that the repair and deduct process is commonly known among tenants, puts the tenant at risk of being unable to recover the amount of money spent on the repairs, and assumes the tenant is able to cover the cost of repairs out of pocket. First, the tenant must notify the landlord in writing of the condition to be repaired and give the landlord a reasonable amount of time to make the repairs.76 Once the landlord has failed to make the repair within a reasonable time period, the tenant should request multiple estimates from professionals concerning the repair and present the estimates to the landlord.77 The determination of whether or not a reasonable amount of time was given to the landlord is up to the judge’s discretion. If the landlord still refuses to make the repairs, the tenant may make the repairs and demand immediate reimbursement for the repairs or deduct the cost of the repairs from the rent.78 B.

Uniform Residential Landlord Tenant Act

Similar to Louisiana law, URLTA provides a process by which the tenant may make minor repairs and deduct the cost of those repairs from the rent. However, there are some distinctions, which we have noted. According to URLTA, a minor repair is characterized as one where the reasonable cost to undertake the repair is less than $100, or equal to one-half of the periodic rent, whichever is greater.79 The tenant may recover damages based on the reasonable cost, or undertake the repair and subsequently deduct the cost of the repair from the rent.80 However, the tenant may not both recover damages for repairs and deduct the cost of the repairs from the rent payment. If the tenant decides to undertake the repair, the tenant should first notify the landlord of the condition in need of repair, and his or her intention to repair the condition at the landlord’s expense.81 Unlike Louisiana law, which grants the landlord a reasonable amount of time to make the repair, URLTA allows the tenant to make the repairs at his or her own expense if the landlord has not made the repairs within 14 days, or if the condition can be classified as an emergency.82 Once the tenant provides the landlord with an itemized list of the repairs, the tenant may deduct from the rent the actual and reasonable cost or the fair and reasonable value of the

74

See Lake Forest, Inc. v. Katz & Besthoff No. 9, Inc., 391 So. 2d 1286 (La. App. 4th Cir.1980); Cameron v. Krantz, 299 So. 2d 919 (La. App. 3d Cir. 1974); Evans v. Does, 283 So. 2d 804, 807 (La. App. 2d Cir. 1973); Leggio v. Manion, 172 So. 2d 748 (La. App. 4th Cir. 1965). 75 Telephone Interview supra note 1. 76 La. Civ. Code art. 2694. 77 Id. 78 Id. 79 URLTA § 4.103(a). 80 Id. 81 Id. 82 Id. 13

work.83 Additionally, URLTA grants the landlord only one opportunity to make the repair before the tenant may undertake the repair. Furthermore, URLTA distinguishes between basic repairs that fall within the duty of the landlord, and repairs concerning essential services, such as heat, running water, hot water, electric or gas. If the landlord’s failure to make a repair results in the suspension or diminution of an essential service, the tenant may give written notice to the landlord specifying the breach.84 Once notice has been provided to the landlord, the tenant may take reasonable and appropriate measures to secure the services during the period of the landlord’s noncompliance or recover damages based upon the diminution in the fair rental value of the dwelling unit.85 Additionally, the tenant may elect to secure reasonable substitute housing during the period of the landlord’s noncompliance, which will excuse the tenant from paying rent during that period.86 If the tenant secures substitute housing, she may recover the actual and reasonable cost or fair and reasonable value of the substitute housing, not to exceed an amount equal to the periodic rent,87 meaning if the tenant is forced to vacate the property based on the lack of essential services, the tenant cannot be held liable for the rent, and can be reimbursed for the cost of securing the substitute housing. C.

Surrounding Jurisdictions’ Landlord-Tenant Laws

Similar to URLTA, Mississippi’s repair and deduct law specifically governs the point at which a tenant may undertake a repair after written notice to the landlord. If, within 30 days after written notice to the landlord of a specific and material defect which constitutes a breach of the terms of the rental agreement or of the obligation of the landlord, the tenant may repair the defect.88 Additionally, the tenant will be entitled to reimbursement of the expenses of the repairs within 45 days after submission to the landlord of receipted bills provided among other things, the expenses incurred do not exceed an amount equal to one month’s rent and the tenant is current in the rental payment.89 Alternatively, the tenant may deduct the cost of repairs from future rent.90 Mississippi Legal Services recommends that before undertaking a repair, the tenant request two cost estimates, provide them to the landlord, and inform the landlord that he should make the repair if he can do it for less.91 Tennessee’s landlord-tenant law contains repair and deduct provisions, but only allows tenants to make repairs and subsequently deduct the cost of the repairs from the rent when the landlord’s deliberate or negligent failure results in the diminution of essential services and the

83

Id. Id. at § 4.104(a). 85 Id. at § 4.104(a)(1); § 4.104(a)(2). 86 Id. at § 4.104(a)(3). 87 Id. at § 4.104(b). 88 Miss. Stat. Ann. § 89-8-15(1). 89 Miss. Stat. Ann. § 89-8-15(1)(b)(ii); § 89-8-15(1)(b)(iv). 90 Miss. Stat. Ann. § 89-8-15(2). 91 Mississippi Legal Services supra note 69. 84

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tenant has given the landlord written notice.92 The tenant may procure the essential services during the period that the services have been diminished and deduct the actual and reasonable costs from the rent.93 Similar to the URLTA provisions governing the diminution of essential services, Tennessee allows the tenant to procure reasonable substitute housing and excuses them from paying rent during the period he was required to live in alternate housing.94 Additionally, the tenant may recover the reasonable and actual value of the substitute housing. 95 Even though Tennessee state law contains specific repair and deduct provisions, the provisions are unclear concerning the point at which a tenant may undertake a repair. D.

Recommendation

We recommend that the “reasonable time” standard currently given to landlords under Louisiana law be replaced with a specific timeframe. Once the tenant has given notice to the landlord of the condition to be repaired, the landlord should make the repair within 14 days. If the landlord does not make the repair within 14 days, the tenant may undertake the repairs. Additionally, the timeframe given for repairing essential services such as heat, water and electricity should be differentiated from other repairs by giving the landlord a shorter amount of time in which to repair the loss of the essential services. We also recommend that Louisiana adopt a provision allowing tenants the right to obtain substitute housing, where the condition to be repaired creates a loss of an essential service. The provision should also free the tenant from the obligation to pay rent until the loss of the essential service that has required him to seek substitute housing has been repaired. Finally, we recommend that a “right to withhold” be created where a tenant can withhold rent until the landlord has made the repairs, and placing the withheld rent into an escrow account. VI.

Conclusion

Currently, Louisiana law imposes few duties or responsibilities on landlords, which leaves tenants susceptible to substandard living conditions or even worse, eviction without cause or notice. We have proposed several recommendations based on the Uniform Residential Landlord-Tenant Act, as well as landlord-tenant laws found in jurisdictions with best practices. In order to address the rapid eviction process currently in practice in Louisiana, we propose giving tenants 30-days’ notice. This is a practical and much needed revision that allows tenants an adequate amount of time to find a new home. Moreover, requiring a landlord to provide notice before he intends to increase the rent, particularly in month-to-month leases, would allow the tenant time to assess whether or not she can afford the increase, and if not, gives the tenant time to acquire alternate housing. Finally, clarifying the repair and deduct process in conjunction with codifying an express prohibition against landlord retaliation allows tenants to address issues within their homes that may be affecting their quality of life, health and safety without the fear of eviction. 92

Tenn. Code Ann. § 66-28-502(a); § 66-28-502(c). Id. at § 66-28-502(A). 94 Id. at § 66-28-502(C). 95 Id. 93

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Appendix: Comparison of Landlord-Tenant Laws Priority Tenant Protection Area 1. Notice of Eviction

Uniform Residential Landlord-Tenant Act

Louisiana Law For fixed term lease: 5 days to vacate.

If the tenant is noncompliant with the rental agreement: 30-days written notice of termination.

Lease may contain a provision waiving the right to the 5-day notice.

 For month-to-month lease: 10 days to vacate. No right to cure. No cause required.



If the rent is unpaid at the time rent is due: 14-day notice. Tenant has right to cure – to correct or repair any breach of the lease agreement before termination of the lease.

Surrounding Jurisdictions’ Landlord-Tenant Laws Alabama and Mississippi law expressly state the reasons a landlord may terminate a rental agreement and describe the amount of notice afforded to tenants in each situation. Both jurisdictions provide a right to cure, allowing the tenant an opportunity to correct a breach. Alabama:  14-day notice if the tenant is noncompliant with the rental agreement, or makes a material misrepresentation in the rental agreement.  7-day notice if rent is unpaid at time it is due.  7-day notice for week-to-week tenancy.  30-day notice for month-tomonth tenancy. Mississippi:  30-day notice for noncompliance with rental agreement.  3-day notice for unpaid rent.

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Recommendations Adopt a 30-day notice requirement for lease termination for noncompliance by the tenant, including default in rent. Allow the tenant a right to cure – the opportunity to correct a breach before eviction occurs.

Priority Tenant Protection Area 2. Notice of Rent Increase

Louisiana Law

Uniform Residential Landlord-Tenant Act

Does not contain specific provisions regarding rent increase.

Does not contain specific provisions regarding rent increase.

Tenants with month-tomonth leases are left particularly vulnerable because a landlord can unilaterally decide to increase the rent without notice.

However, if the landlord intends to make a change to the terms of a lease, the tenant must consent to the change, which would include a change in the amount of rent included in the terms of the lease.

Surrounding Jurisdictions’ Landlord-Tenant Laws Neither Alabama nor Mississippi state law contains a specific provision governing the amount of notice required by a landlord to increase rent. However, both jurisdictions contain provisions similar to the one in URLTA, which imposes certain conditions a landlord must meet in order to adopt a rule or regulation or change regarding the rental agreement. Under Washington law, a landlord cannot change any aspect of a lease during the tenancy except by mutual agreement. The statute expressly includes rent as a term of the lease. If the landlord wishes to increase the rent, he must provide at least 30 days’ notice, and the increase will come into effect only after the expiration of the tenancy. 30 days’ notice is also required to increase the rent in a month-to-month tenancy.

3. Landlord Retaliation

Contains no specific provisions regarding landlord retaliation. Case law recognizes the abuse of right doctrine.

Landlord retaliation is strictly prohibited. Evidence of landlord retaliation may be used as an affirmative defense in an eviction proceeding or an

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Alabama, Mississippi and Tennessee expressly prohibit landlord retaliation in response to the tenant’s attempt to secure rights under the lease.

Recommendations Regulate how and when a landlord can impose a change to the existing rental agreement, including an increase in rent. Further, if the tenant is unable to afford the increase, the landlord must provide at least 30 days’ notice to the tenant of his intent to terminate the existing lease.

Adopt an express prohibition of landlord retaliation, as well as a rebuttable presumption, allowing the courts to presume the landlord’s conduct is intended as

Priority Tenant Protection Area

Louisiana Law

Establishing that an abuse of right has occurred does not prevent an eviction; however, the tenant may be given more time to vacate the property.

4. Repair and Deduct

Once the tenant has notified the landlord of a repair, the landlord is given a “reasonable” time to make the repair. The law does not define what is “reasonable.” If the landlord does not make the repair, the tenant should request multiple estimates concerning the repair and present them to the landlord. If the landlord refuses to make the repair, the tenant may make the repair and

Uniform Residential Landlord-Tenant Act

Surrounding Jurisdictions’ Landlord-Tenant Laws

independent cause of action.

retaliation if an eviction of a tenant is sought within 6 months of a tenant’s complaint.

Evidence of a complaint within a year of alleged retaliatory conduct creates a rebuttable presumption that the landlord’s conduct was in retaliation.

Once the tenant has notified the landlord of a repair to be made, the landlord has 14 days to make the repair. If the landlord does not make the repair, the tenant may make the repair, provide the landlord with an itemized list of repairs and deduct from the rent the reasonable cost of the repairs.

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Recommendations

To prevent harassment, implement a ban on reoccurring eviction proceedings against the same tenant. This would not allow a landlord to bring an eviction proceeding against the same tenant within 30 days of a previous proceeding. Mississippi: A tenant may make a repair 30 days after a written notice is given to the landlord. Tenants may (1) submit receipts to the landlord for reimbursement OR (2) deduct the costs of the repair from future rent. Tennessee’s repair and deduct law is applicable only to essential services. The tenant must provide written notice before (1) procuring essential services during the period that the services have been diminished and subsequently deducting costs from the rent OR (2) procuring reasonable substitute housing without paying rent during the period he was

Codify a definition for “reasonable time” in which the landlord may have to make the repairs.

Priority Tenant Protection Area

Louisiana Law

Uniform Residential Landlord-Tenant Act

demand immediate reimbursement or deduct the cost of the repairs from the rent.

Surrounding Jurisdictions’ Landlord-Tenant Laws required to live in alternate housing and recovering the reasonable and actual value of the substitute housing.

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Recommendations