Louisiana Consumer Law:
Louisiana eviction, rental deposit, and landlord-tenant disputes
Very few tenants are aware of the tenant rights laws we have in Louisiana for their protection. It would probably be a good idea if landlords were required to disclose in the lease a summary of the rights available to tenants. The procedures dictated by the law to enforce these rights must be followed exactly, or the right is lost.
When it comes to tenant rights, there are basically two types of disputes that account for virtually all the suits: evictions and fights over deposits.
To defend yourself against an eviction, you must set forth an affirmative defense. Examples of affirmative defenses would be that the rent was paid, that you are not in default, or that the term of the lease is not up. To preserve your right to appeal an eviction, should you lose at the first hearing, you must have filed an answer setting forth your affirmative defense, and your answer must have been made under oath. In other words, you must include a statement swearing that your allegations in the answer are true, and you must sign the statement in front of a notary.
If you lose the eviction, you only have twenty-four hours after the judgment of eviction is signed to file an appeal that will suspend the eviction. We have never seen anyone successfully represent himself in an eviction. That is because the landlord generally is familiar with the procedures, and the tenant is not. Many tenants would have liked to appeal a decision to evict, but by the time they find out that they were required to file an answer under oath, it is too late. In the typical case, the disgruntled tenant goes to see a lawyer a few days after the eviction hearing and is informed that his right to appeal has passed. The tenant may still have the right to appeal the correctness of the decision, but it is too late to keep from being thrown off the premises.
The most frequent complaint tenants have against landlords is the loss of their deposit. Many landlords found from experience that they could keep the tenant’s deposit and that there wasn’t much that the tenant could do about it. It simply wasn’t worthwhile trying to sue to recover a few hundred dollars. The legal expenses alone generally exceeded the amount of the deposit. In 1972, the Legislature recognized this problem and passed several laws controlling the return of tenant deposits. But, the tenant needs to be familiar with these laws and the procedures that they require.
A lessor who holds a deposit from a tenant for the faithful performance of the lease is required to return the deposit within one month after the termination of the lease. However, the lessor can retain all or any part of the deposit that is necessary to remedy a default by the tenant or to repair unreasonable wear to the leased premises. As long as the tenant has not abandoned the premises prior to the termination of the lease, the landlord is required to give the tenant an itemized statement showing why the deposit or any part of it was withheld. If the deposit is not returned and no written statement is given to the tenant, the tenant can demand the return of his deposit in writing. If the lessor still does not make a refund or accounting within thirty days from the written demand, the lessor’s failure to refund will be considered willful, and the tenant will be entitled to the greater of his actual damages or two hundred dollars. The court can also order the landlord to pay the tenant for his attorney’s fees and court costs. An award of attorney’s fees can often be more than the deposit and damages combined and can be the real incentive for the landlord to make a prompt refund once the tenant makes it clear that he is aware of the deposit laws.
If you find it necessary to make a written demand for your deposit back, make sure you can prove that you gave the notice and when the notice was given. Bring a witness with you if you hand-deliver the notice, or send the notice by certified mail. Your notice only has to say that you gave a deposit and expect a refund within thirty days, or you will take further legal action. If the lessor makes a reasonable accounting of why your deposit was withheld, you would not be entitled to damages and attorney’s fees. You could still recover the portion of the deposit that you can prove was unreasonably withheld.
Evictions can go fast. Although there is a requirement that you be given a five day notice to vacate, this right can be waived in a written lease. Read your lease carefully before you make any assumptions about the time you have. Just because someone else got five days to move does not mean you will as well.
In an action brought under R.S. 9:3252 (that requires the return of the deposit), the court may in its discretion award costs and attorney’s fees to the prevailing party.
This is a two-edged sword. If you sue a landlord for the return of your deposit, make sure you are in good faith. If you lose the case and the judge feels it is warranted, you could be ordered to pay the landlord’s attorney’s fees.
Don’t ask for attorney’s fees unless you actually hire an attorney to handle your case. In a lease dispute litigation, attorney’s fees should not have been awarded where the tenants had not incurred the out-of-pocket expenses of retaining an attorney as contemplated by La. Rev. Stat. Ann. § 9:3253. Golden v. Riverside Apts., Inc., 488 So. 2d 478
TIP: Oral demands for your deposit don’t hold much water. To recover damages for a willful failure to return a deposit, the tenant had to have made a written demand upon the landlord per 9:3252; where the tenant did not make such a demand, the tenant was not entitled to damages or attorney’s fees under La. Rev. Stat. Ann. § 9:3253. Maxie v. Juban Lumber Co., 444 So. 2d 181, 1983