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Regular Session, 2012
SENATE BILL NO. 752 (Substitute of Senate Bill No. 447 by Senator Peterson)
BY SENATORS PETERSON, APPEL, MARTINY AND MORRELL AND
REPRESENTATIVES ADAMS, BILLIOT, CONNICK, HENRY,
LEOPOLD, LIGI, LOPINTO, LORUSSO, TALBOT AND WILLMOTT
MUNICIPALITIES. Authorizes municipalities to enact ordinances relative to abandoned
properties. (gov sig)
AN ACT1
To enact R.S. 9:5396 and R.S. 33:5065 through 5069, relative to ordinances requiring2
abandoned property be maintained in a safe and sanitary condition; to allow the3
governing authority of certain municipalities to maintain abandoned properties; to4
provide for definitions; to provide for notice; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. R.S. 9:5396 is hereby enacted to read as follows:7
§5396. Maintenance of abandoned mortgaged property8
A. If a mortgagee or loan servicer receives a notice from a governing9
authority in accordance with R.S. 33:5062 or R.S. 33:5065 et seq., identifying10
certain maintenance required on the mortgaged property, the mortgagee and11
loan servicer shall have the right to directly or through third parties enter onto12
the property to perform maintenance.13
B. If any abandoned residential property, as defined by R.S. 33:5066,14
affected by a mortgage is unoccupied or abandoned and is constructively seized15
relative to a foreclosure action and a notice of seizure has been recorded in the16
parish mortgage records, the mortgagee and loan servicer shall each have the17 SB NO. 752
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legal right, directly or through third parties, to enter onto the property and to1
perform maintenance to protect and preserve the property until it can be sold2
at private sale or sheriff's sale.3
C. The mortgagee, loan servicer, and any third parties hired by them to4
perform maintenance on the property, as defined by R.S. 33:5066, shall not be5
liable to the mortgagor or the owner of the seized property or any other person6
for any financial or pecuniary loss or damage claimed to have been suffered by7
the mortgagor or owner of the property or any other person by reason of the8
maintenance of the property.9
D. Any costs and expenses incurred by the mortgagee or loan servicer10
for maintaining the property may be added to any loan balance secured by the11
mortgage and recoverable from proceeds received from a sale of the property.12
Section 2. R.S. 33:5065 through 5069 are hereby enacted to read as follows:13
§5065. Maintenance of abandoned residential properties in municipalities and14
parishes15
The governing authority of any parish with a population between four16
hundred thousand and four hundred forty thousand based on the latest federal17
decennial census, and any governing authority of a municipality that lies within18
such a parish, may enact ordinances requiring that abandoned residential19
property be maintained in safe and sanitary condition to maintain the stability20
of the neighborhood.21
§5066. Definitions22
The following words and phrases when used in R.S. 33:5065 through23
33:5069 shall have the following meaning, unless the context clearly indicates24
otherwise:25
A. "Abandoned residential property" shall mean one-to-four family26
residential property that is vacant as the result of the relinquishment of physical27
possession or control by a homeowner or any other person or entity with an28
interest in the property. Property may be deemed abandoned when there is29 SB NO. 752
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evidence of conditions, taken separately or as a whole, which would lead a1
reasonable person to conclude that the property was unoccupied including, but2
not limited to evidence of vacancy.3
B. "Evidence of vacancy" shall mean condition that on its own, or4
combined with other conditions present which would lead a reasonable person5
to believe that the property is vacant. Such conditions include but are not6
limited to overgrown or dead vegetation, accumulation of newspapers, circulars,7
flyers, or mail, past due utility notices or disconnected utilities, accumulation of8
trash, junk or debris, the absence of window coverings such as curtains, blinds9
or shutters, the absence of furnishings or personal items consistent with10
residential habitation, and statements by neighbors, passersby, delivery agents,11
or government employees that the property is unoccupied.12
C. "Maintenance" shall mean but is not limited to repairing or replacing13
broken glass windows, repairing or replacing exterior doors, repairing or14
replacing soffit, fascia, shutters, and siding, repairing or replacing fences, and15
maintaining or covering swimming pools and hot tubs.16
D. "Owner" is defined as those with care, custody, or control of the17
property at issue, including but not limited to record owners, seizing creditors,18
mortgage holders, lien holders, loan servicers of foreclosed property pending19
title transfer, or is an agent or assignee of the seizing creditor, mortgage20
holders, lien holders, or loan servicer.21
E. "Notice" shall mean posting notice of the alleged violation on the door22
of the property at issue and sending notice via certified mail, return receipt23
requested, from the governing authority addressed to the property owner,24
referencing the subject property, providing an explanation of the maintenance25
needed on the property, specifying the time period in which the work is26
required to be completed, providing the name and phone number of a contact27
person with the governing authority who has knowledge of the matter who can28
provide more information, including a copy of the applicable ordinance, and29 SB NO. 752
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including a photo of the subject property. If the property is encumbered by a1
recorded mortgage, then a notice letter shall also be sent certified mail, return2
receipt requested, from the governing authority addressed to the seizing3
creditor, mortgage holder, lien holder, or loan servicer of foreclosed property4
pending title transfer that includes all of the information and enclosures5
required to be provided in the letter to the owner.6
§5067. Time delays, procedure for maintenance7
A. No such work shall be undertaken by the governing authority8
pursuant to this Section until the owner of the property, as defined in R.S.9
33:5066 (D), has been given notice and a minimum of forty-five days to perform10
the maintenance.11
B.(1) A governing authority may undertake the maintenance of the12
property if the requirements of notice and time delay as provided for herein13
have been met and the maintenance has not been performed.14
(2) The governing authority shall take a photograph showing the15
condition of the property before the maintenance is performed and shall take16
a photograph showing the condition of the property after the maintenance is17
performed. The governing authority shall keep records showing the expenses18
incurred in maintaining the property, and those records shall be retained for19
a period of five years or until the property is sold, whichever time is less.20
(3) The governing authority shall use licensed and insured vendors to21
perform maintenance on property pursuant to this Section.22
C. After completion of the maintenance on the subject property, the23
governing authority shall record in the public mortgage records in the parish24
where the property is located, an affidavit, signed by either the chief elected25
official or his designee or by the parish or city attorney or his designee. The26
required affidavit shall include the following:27
(1) A legal description of the property to which maintenance was28
performed, sufficient to reasonably identify it.29 SB NO. 752
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(2) The name of the property owner.1
(3)A description of the maintenance performed and an itemization of the2
amounts of money spent on maintenance.3
(4) The name of the governing authority and a statement that the4
provisions of this statute and the provisions of the applicable local ordinance5
have been complied with.6
§5068. Privilege7
A. The governing authority shall have a privilege against the subject8
property for the cost of maintenance it incurs, as documented in the recorded9
affidavit, and the privilege shall have the ranking priority as to other mortgages10
and privileges as provided in R.S. 9:4821(1).11
B. The cost of maintenance shall include charges, costs, and expenses12
incurred by the governing authority in enforcing such ordinances enacted13
pursuant to R.S. 33:5065 through 33:5069 shall be the actual cost thereof to the14
governing authority, not to exceed a total amount of five thousand dollars in a15
twelve-month period.16
§5069. Procedure for disputing privileges17
A property owner and a mortgage holder shall have the right to dispute18
a privilege created against a mortgaged property under R.S. 33:5068, if the19
work creating a privilege was not performed on the property. A privilege may20
be disputed by submitting an affidavit to the governing authority. The affidavit21
shall be made by someone with knowledge of the condition of property,22
providing a statement that the work giving rise to the lien was not performed23
on the subject property, and giving an explanation as to why it believes the work24
was not performed on the property. Additional documentation may be25
submitted with the affidavit, such as pictures of the identity and condition of the26
property, and invoices or records showing that work was performed privately.27
Upon receiving the affidavit and other documentation, the governing authority28
shall have thirty days to investigate the dispute and respond by either producing29 SB NO. 752
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pictures or records to prove that the privilege established on the property for1
work performed is accurate, or by issuing a written release and cancellation of2
the privilege.3
Section 3. This Act shall become effective upon signature by the governor or, if not4
signed by the governor, upon expiration of the time for bills to become law without signature5
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If6
vetoed by the governor and subsequently approved by the legislature, this Act shall become7
effective on the day following such approval.8
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by James Benton.
DIGEST
Peterson (SB 752)
Proposed law provides that if a mortgagee or loan servicer receives a notice from a
governing authority in accordance with present law, identifying certain maintenance required
on the mortgaged property, the mortgagee and loan servicer shall have the right to directly
or through third parties enter onto the property to perform maintenance.
Proposed law provides that if any abandoned one-to-four family residential property, as
defined by present law, affected by a mortgage is unoccupied or abandoned and is
constructively seized relative to a foreclosure action and a notice of seizure has been
recorded in the parish mortgage records, the mortgagee and loan servicer shall each have the
legal right to, directly or through third parties, enter onto the property and to perform
maintenance to protect and preserve the property until it can be sold at private sale or
sheriff's sale.
Proposed law provides that if the mortgagee, loan servicer, and any third parties hired by
them to perform maintenance on the property, as defined by present law, shall not be liable
to the mortgagor or the owner of the seized property or any other person for any financial
or pecuniary loss or damage claimed to have been suffered by the mortgagor or owner of the
property or any other person by reason of the maintenance of the property.
Proposed law provides that any costs and expenses incurred by the mortgagee or loan
servicer for maintaining the property may be added to any loan balance secured by the
mortgage and recoverable from proceeds received from a sale of the property.
Proposed law provides that the governing authority of a parish between 400,000 and 440,000
based on the latest federal decennial census, and the governing authority of any municipality
that lies within such a parish, may enact ordinances requiring that abandoned residential
property be maintained in safe and sanitary condition to maintain the stability of the
neighborhood.
Proposed law provides for the following:
1. "Abandoned residential property" means one-to-four family residential property that
is vacant as the result of the relinquishment of physical possession or control by a
homeowner or any other person or entity with an interest in the property. Property
may be deemed abandoned when there is evidence of conditions, taken separately SB NO. 752
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or as a whole, which would lead a reasonable person to conclude that the property
was unoccupied including, but not limited to evidence of vacancy.
2. "Evidence of vacancy" means condition that on its own, or combined with other
conditions present which would lead a reasonable person to believe that the property
is vacant. Such conditions include but are not limited to, overgrown or dead
vegetation, accumulation of newspapers, circulars, flyers or mail, past due utility
notices or disconnected utilities, accumulation of trash, junk or debris, the absence
of window coverings such as curtains, blinds or shutters, the absence of furnishings
or personal items consistent with residential habitation, statements by neighbors,
passersby, delivery agents, or government employees that the property is
unoccupied.
3. "Maintenance" means, but is not limited to, repairing or replacing broken glass
windows, repairing or replacing exterior doors, repairing or replacing soffit, fascia,
shutters and siding, repairing or replacing fences, and maintaining or covering
swimming pools and hot tubs.
4. "Owner" is defined as those with care, custody, or control of the property at issue,
including but not limited to record owners, seizing creditors, mortgage holders, lien
holders, loan servicers of foreclosed property pending title transfer, or is an agent or
assignee of the seizing creditor, mortgage holders, lien holders, or loan servicer.
Proposed law provides that no work shall be undertaken by the municipal governing
authority until the owner of the property, as defined by present law, has been given notice
and a minimum of 45 days to perform the maintenance.
Proposed law provides that a governing authority may undertake the maintenance of the
property if the requirements of notice and time delay as provided for herein have been met
and the maintenance has not been performed.
Proposed law provides that the governing authority will take a photograph showing the
condition of the property before the maintenance is performed and will take a photograph
showing the condition of the property after the maintenance is performed. The governing
authority will keep records showing the expenses incurred in maintaining the property, and
those records will be retained for a period of five years or until the property is sold,
whichever time is less.
Proposed law provides that the governing authority will use licensed and insured vendors
to perform maintenance on property pursuant to this Section.
Proposed law provides that after completion of the maintenance on the subject property, the
governing authority shall record in the public mortgage records in the parish where the
property is located, an affidavit, signed by the chief elected official or his designee, or by the
parish or city attorney, or his designee.
Proposed law provides that the governing authority shall have a privilege against the
property for the cost of maintenance it incurs, as documented in the recorded affidavit, and
the privilege shall have priority in ranking as to other mortgages and privileges.
Proposed law provides that a property owner and a mortgage holder shall have the right to
dispute a privilege created against a mortgaged property under proposed law, if the work
creating a privilege was not performed on the property. A privilege may be disputed by
submitting an affidavit to the governing authority.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Adds R.S. 9:5396 and R.S. 33:5065 through 5069)