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2017 Regular Session
SENATE BILL NO. 120
BY SENATOR WARD (On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
LEASES. Provides for security deposits and evictions involving residential leases. (1/1/18)
1 AN ACT
2 To amend and reenact Civil Code Articles 2704, 2725 and 2728(2), the heading of Title XI
3 of Code Book VII of the Code of Civil Procedure, Code of Civil Procedure Articles
4 4701, 4702, the section heading of Code of Civil Procedure Article 4703, Code of
5 Civil Procedure Articles 4704, 4731, 4732 and 4912, and Part IV of Chapter 1 of
6 Title IX of Title 9 of the Louisiana Revised Statutes of 1950, to be comprised of
7 R.S. 9:3251 through 3254, relative to residential leases; to provide a grace period for
8 the nonpayment of rent; to provide for notice not to extend; to provide for notice of
9 termination; to provide for the notice to vacate; to provide for the judgment of
10 eviction; to provide for the return of a security deposit; to provide for the right of
11 retention; to provide time periods; to provide for damages and attorney fees; to
12 provide with respect to the waiver of rights; and to provide for related matters.
13 Be it enacted by the Legislature of Louisiana:
14 Section 1. Civil Code Articles 2704, 2725 and 2728(2) are hereby amended and
15 reenacted to read as follows:
16 Art. 2704. Nonpayment of rent
17 If the lessee fails to pay the rent when due, the lessor may, in accordance with
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1 the provisions of the Title "Conventional Obligations or Contracts", dissolve the
2 lease and may regain possession in the manner provided by law.
3 Nevertheless, a residential lease shall not be dissolved for the lessee's
4 failure to pay the rent when due unless the lessor has given to the lessee a
5 written notice to pay the rent within a period of no less than ten days, with a
6 warning that, if the lessee does not pay, the lessor may dissolve the lease. If the
7 lessee does not pay the rent within the period given, the lessor may immediately
8 dissolve the lease by giving written notice of dissolution to the lessee. If within
9 six months after a notice to pay the rent has been given, the lessee fails on an
10 additional occasion to pay the rent when due, the lessor may immediately
11 dissolve the lease by giving written notice of dissolution to the lessee.
12 Revision Comments - 2017
13 (a) The second paragraph of this Article is new. Even when a residential lease
14 contains a dissolution clause providing that the lessee's failure to pay rent gives rise
15 to extrajudicial dissolution, the lease may not be dissolved unless the lessor complies
16 with the requirements of this Article. The lessee's right to receive the notice to pay
17 rent required by this Article may not be waived by the lessee.
18 (b) The lessor may not give the lessee written notice to the pay rent until after
19 the lessee has failed to pay the rent when due. See C.C. Art. 2015 (1984). A delay
20 of grace granted to a residential lessee in a written lease therefore does not satisfy the
21 requirements of this Article. Nevertheless, when the lease grants a grace period for
22 the payment of rent, the lessor need not wait until the delay of grace has expired
23 before giving the lessee written notice to pay. Instead, the delay of grace required by
24 this Article may run concurrently with a conventional delay of grace.
25 (c) Under the last sentence of this Article, the lessor is not required to tolerate
26 a subsequent failure to pay rent when due during the six-month period after a notice
27 to pay the rent has been given. If the rent is not paid when due on a second occasion
28 during that period, the lessor may dissolve the lease immediately by written notice
29 without first giving an additional notice to pay rent.
30 (d) The 2017 revision is not intended to displace the jurisprudential doctrine
31 of "judicial control" of leases. See, e.g., Atkinson v. Richeson, 393 So. 2d 801 (La.
32 App. 2 Cir. 1981).
33 (e) Code of Civil Procedure Article 4701 (Rev. 2017) provides that a written
34 notice to pay the rent given to a residential lessee under this Article shall be
35 considered notice to vacate. Thus, if a residential lessee who has been given notice
36 to pay the rent under this Article fails to pay within the delay given, the lessor may
37 proceed immediately with an eviction proceeding by filing a rule to show cause why
38 possession should not be delivered. If the lessor has not dissolved the lease
39 extrajudicially prior to the hearing on the rule to show case, the court may order
40 dissolution of the lease at that time.
41 * * *
42 Art. 2725. Extension
43 If the lease contract contains an option to extend the term and the option is
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1 exercised, the lease continues for the term and under the other provisions stipulated
2 in the option.
3 In a residential lease in which the parties have agreed that the term shall
4 be automatically extended for a fixed term unless the lessee notifies the lessor
5 of his intent not to extend the term, the lessee's notice shall not be required
6 more than thirty days prior to the day on which the term is set to expire. If the
7 lease stipulates a longer time for the lessee's notice, that time shall be reduced
8 to thirty days.
9 Revision Comments - 2017
10 The second paragraph of this Article is new. This prohibition is intended to
11 prevent hardship on a residential lessee who decides near the end of the original term
12 of the lease not to extend the lease for an additional fixed term. In residential leases,
13 the lessor typically supplies the lease agreement and enjoys greater bargaining power
14 than the lessee. Therefore, this prohibition applies only to the lessee's notice of intent
15 not to extend. An agreement requiring the lessor to give notice of intent not to renew
16 more than thirty days prior to the end of the original term is not affected by the
17 second paragraph of this Article.
18 * * *
19 Art. 2728. Notice of termination; timing
20 The notice of termination required by the preceding Article shall be given at
21 or before the time specified below:
22 * * *
23 (2) In a month-to-month residential lease, thirty calendar days before the
24 end of that month; in all other month-to-month leases, ten calendar days before
25 the end of that month;
26 * * *
27 Revision Comments - 2017
28 (a) A month-to-month residential lease may be terminated by either party
29 giving a notice of termination at least thirty days prior to the end of that month. The
30 "end of that month" refers to the last day of the last month of the lease's term, which
31 may or may not correspond to the last calendar day of a given month. For example,
32 a month-to-month residential lease that commenced on January 15 may be
33 terminated on the 14
th
day of a given month by either party's giving a notice of
34 termination at least thirty days prior to the 14th day of that month. Thus, to terminate
35 on July 14 a lease that commenced on January 15, a party must provide notice of
36 termination no later than June 14. The thirty-day notice period begins to run on the
37 day after notice is given (June 15) and includes the last day of the term (July 14). See
38 C.C. Art. 1784 (Rev. 1984). As provided by Article 2729 (Rev. 2005), a notice to
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1 terminate a residential lease must be made in writing.
2 (b) Under the second paragraph of this Article, if on June 14 either party
3 gives notice of termination of a month-to-month residential lease that began the
4 preceding January 15 and the notice does not specify the date of termination, the
5 lease will terminate on July 14. If instead either party gives notice of termination on
6 June 15, again not specifying the date of termination, the lease will terminate on
7 August 14. If, however, notice of termination is given on June 15 and specifies that
8 the lease will terminate on September 14, then the lease will terminate on that date.
9 Section 2. The heading of Title XI of Code Book VII of the Code of Civil Procedure,
10 Code of Civil Procedure Articles 4701, 4702, the section heading of Code of Civil Procedure
11 Article 4703, Code of Civil Procedure Articles 4704, 4731, 4732 and 4912 are hereby
12 amended and reenacted to read as follows:
13 TITLE XI. EVICTION OF TENANTS LESSEES AND OCCUPANTS
14 * * *
15 Art. 4701. Termination of lease; notice Notice to lessee to vacate; waiver of notice
16 A. When a lessee's right of occupancy has ceased because of the termination
17 of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for
18 any other reason, and the lessor wishes to obtain possession of the premises, the
19 lessor or his agent shall cause written notice to vacate the premises to be delivered
20 to the lessee. The notice shall allow the lessee not less than five days from the date
21 of its delivery to vacate the leased premises. If the lease has a definite term, notice
22 to vacate based on the expiration of the term may be given not more than thirty
23 days before the expiration of the term. If the lease has no definite term, the
24 notice required by law for its termination shall be considered notice to vacate
25 under this Article.
26 B. When the lease has been dissolved or the lessor has the right to
27 dissolution, the lessor who wishes to obtain possession of the premises shall
28 cause written notice to vacate the premises to be delivered to the lessee. A
29 written notice of dissolution given to the lessee shall be considered notice to
30 vacate the premises under this Article. A written notice to pay the rent given to
31 a residential lessee in accordance with Civil Code Article 2704 shall also be
32 considered notice to vacate the premises, provided that the lessee does not pay
33 the rent within the period given.
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1 C. If the lease has no definite term, the notice required by law for its
2 termination shall be considered as a notice to vacate under this Article. If the lease
3 has a definite term, notice to vacate may be given not more than thirty days before
4 the expiration of the term. In all cases, a notice to vacate shall state the reasons
5 for termination of the lease.
6 D. In a residential lease, the notice requirements of this Article may not
7 be waived by the lessee. Nevertheless, the notice requirements of this Article do
8 not apply if a residential lessee's failure to perform seriously affects the health
9 or safety of the lessor or any person occupying the premises or adjacent
10 property. In a lease other than a residential lease, the A lessee may waive the
11 notice requirements of this Article by written waiver contained in the lease, in which
12 case, upon termination of the lessee's right of occupancy for any reason, the lessor
13 or his agent may immediately institute eviction proceedings in accordance with
14 Chapter 2 of Title XI of the Louisiana this Code of Civil Procedure.
15 E. A rule to show cause why possession should not be delivered under
16 Article 4731 shall not be filed until the expiration of five days after delivery of
17 any notice given under this Article.
18 Revision Comments - 2017
19 (a) As under former law, eviction proceedings may be initiated by the
20 delivery of a notice to vacate when the lessee's right of occupancy has ceased
21 because of the termination of the lease by expiration of its term, when the lease has
22 been dissolved, or when the lessor has the right to dissolution. The 2017 revision
23 clarifies the law by providing that a lessor who has the right to dissolution may
24 institute eviction proceedings even though the lease has not yet been dissolved. In
25 such a case, if grounds for dissolution are present, the court may dissolve the lease
26 and order the lessee to deliver the premises to the lessor.
27 (b) The notice requirements of this Article may be satisfied by the delivery
28 of a written notice to vacate, a notice to terminate an indeterminate term lease given
29 in accordance with Civil Code Article 2728 (Rev. 2004), a written notice of
30 dissolution, or a written notice to pay rent given to a residential lessee in accordance
31 with Civil Code Article 2704 (Rev. 2004).
32 (c) A lessor of an immovable who wishes to terminate an indeterminate term
33 lease may do so by giving written notice of termination to the lessee. See C.C. Arts.
34 2728 and 2729 (Rev. 2004). This notice shall serve as a notice to vacate. In most
35 cases, the time required for notice of termination will exceed the minimum five-day
36 notice period required by this Article. For example, a lessor who wishes to terminate
37 a month-to-month residential lease must give thirty days' written notice prior to the
38 last day of the lease. See C.C. Art. 2728 (Rev. 2004). If the lessee remains in
39 possession after the lease has been properly terminated by such notice, the lessor
40 may immediately file a rule to show cause why possession should not be delivered
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1 without first delivering additional notice to vacate to the lessee.
2 (d) When the lessor has dissolved a lease extrajudicially through written
3 notice of dissolution, the rule to show cause why possession should not be delivered
4 is premature if filed fewer than five days after the notice of dissolution is given to
5 the lessee. Such a rule is also premature if filed prior to the effective date of
6 dissolution provided in the written notice.
7 (e) A lessor who wishes to dissolve a residential lease for the lessee's failure
8 to pay the rent when due must first give to the lessee a written notice to pay the rent
9 within no less than ten days, with a warning that, if the lessee does not pay, the lessor
10 may dissolve the lease. See C.C. Art. 2704. If the lessee fails to pay the rent within
11 the delay given, the lessor may immediately file a rule to show cause why possession
12 should not be delivered without first delivering an additional notice to vacate the
13 lease. In such a case, the lessor may also immediately dissolve the lease by giving
14 written notice of dissolution to the lessee. C.C. Art. 2704. If the lessor has not
15 dissolved the lease extrajudicially prior to the hearing on the rule to show cause, the
16 court may order dissolution of the lease at that time.
17 (f) Minimum requirements of due process require that the notice to vacate
18 state the reasons for eviction, in order to allow preparation of a defense if available.
19 See Louisiana State Museum v. Mayberry, 348 So. 2d 1274 (La. App. 4 Cir. 1977).
20 (g) The 2017 revision changes the law by prohibiting waiver of the
21 requirements of this Article in residential leases. The relative disparity of bargaining
22 power between residential lessees and lessors militates against allowing the lessee
23 to waive the right to notice.
24 Art. 4702. Notice to occupant other than tenant lessee to vacate
25 When an owner of immovable property wishes to evict the occupant
26 therefrom, after the purpose of the occupancy has ceased, the owner or his agent,
27 shall first cause a written notice to vacate the property to be delivered to the
28 occupant.
29 This notice shall allow the occupant five days from its delivery to vacate the
30 premises. A rule to show cause why possession should not be delivered shall not
31 be filed until the expiration of five days after delivery of the notice given under
32 this Article.
33 Art. 4703. Delivery or service when premises abandoned or closed, or whereabouts
34 of tenant lessee or occupant unknown
35 * * *
36 Art. 4704. Definitions
37 Unless the context clearly indicates otherwise, as used in this Title the
38 following terms have the following meanings:
39 "Lease" means any oral or written lease, and includes a sublease;
40 "Lessee" includes a sublessee, whether the person seeking to evict is a lessor
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1 or sublessor; and an assignee of a lessee;
2 "Lessor" includes a sublessor, assignee, or transferee;
3 "Occupant" includes a sharecropper; half hand; day laborer; former owner;
4 and any person occupying immovable property by permission or accommodation of
5 the owner, former owner, or another occupant, except a mineral lessee, owner of a
6 mineral servitude, or a lessee of the owner;
7 "Owner" includes a lessee; and
8 "Premises" includes the land and all buildings and improvements thereon
9 leased by a tenant lessee, or possessed by an occupant.
10 * * *
11 Art. 4731. Rule to show cause why possession should not be delivered;
12 abandonment of premises
13 A. If the lessee or occupant fails to comply with the notice to vacate required
14 under this Title, or if the lessee has waived his right to notice to vacate by written
15 waiver contained in the lease, and has lost his right of occupancy for any reason, the
16 lessor or owner, or agent thereof, may cause the lessee or occupant to be cited
17 summarily by a court of competent jurisdiction to show cause why he should not be
18 ordered to deliver possession of the premises to the lessor or owner. The rule to show
19 cause shall state the grounds upon which eviction is sought.
20 B. After the required notice has been given, the lessor or owner, or agent
21 thereof, may lawfully take possession of the premises without further judicial
22 process, upon a reasonable belief that the lessee or occupant has abandoned the
23 premises. Indicia of abandonment include a cessation of business activity or
24 residential occupancy, returning keys to the premises, and removal of equipment,
25 furnishings, or other movables from the premises.
26 Art. 4732. Trial of rule; judgment of eviction
27 A. The court shall make the rule returnable not earlier than the third day after
28 service thereof, at which time the court shall try the rule and hear any defense which
29 is made.
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1 B. If the court finds the lessor or owner entitled to the relief sought, or if the
2 lessee or occupant fails to answer or to appear at the trial, the court shall render
3 immediately a judgment of eviction ordering the lessee or occupant to deliver
4 possession of the premises to the lessor or owner. Nevertheless, in exceptional
5 circumstances, the rendition of the judgment of eviction of a residential lessee
6 may be delayed for a reasonable time not to exceed seven calendar days to
7 prevent undue hardship on the lessee.
8 C. The judgment of eviction shall be effective for not less than ninety days.
9 Revision Comments - 2017
10 A court finding the lessor or owner entitled to the relief sought is required to
11 render "immediately" a judgment of eviction. Under the 2017 revision, a court may
12 in its discretion delay the rendition of the judgment to avoid undue hardship on a
13 residential lessee. Such discretion should be reserved for extraordinary cases of
14 hardship, such as that wrought by severe disability, serious illness, or dangerous
15 weather conditions. This discretion should be exercised only to permit the lessee a
16 reasonable time to vacate the premises, and not to delay the effect of the judgment
17 significantly.
18 * * *
19 Art. 4912. Possession or ownership of movable property; eviction proceedings;
20 justice of the peace courts
21 A.(1) A justice of the peace court shall, within its territorial jurisdiction, have
22 jurisdiction, concurrent with the parish or district court, over suits for the possession
23 or ownership of movable property not exceeding five thousand dollars in value and
24 over suits by landowners or lessors for the eviction of occupants or tenants lessees
25 of leased residential premises, regardless of the amount of monthly or yearly rent or
26 the rent for the unexpired term of the lease.
27 (2) A judgment of ownership of a vehicle ordered by a justice of the peace
28 court shall be recognized by the office of motor vehicles of the Department of Public
29 Safety and Corrections in accordance with the provisions of Chapter 4 of Title 32 of
30 the Louisiana Revised Statutes of 1950.
31 B. A justice of the peace court shall also have jurisdiction over suits by
32 landowners or lessors for the eviction of occupants or tenants lessees of leased
33 commercial premises and leased farmlands where the amount of the monthly rental
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1 does not exceed five thousand dollars per month, regardless of the amount of rent
2 due or the rent for the unexpired term of the lease.
3 Section 3. Part IV of Chapter 1 of Title IX of Title 9 of the Louisiana Revised
4 Statutes of 1950, comprised of R.S. 9:3251 through 3254, is hereby amended and reenacted
5 to read as follows:
6 PART IV. RESIDENTIAL LESSEE'S SECURITY DEPOSIT
7 §3251. Lessee's deposit to secure lease; retention by lessor; conveyance of leased
8 premises; itemized statement by lessor Return of security deposit;
9 right of retention
10 A. Any advance or deposit of money furnished by a tenant or lessee to a
11 landlord or lessor in a residential lease to secure the performance of any part of a
12 written or oral lease or rental agreement obligations of the lessee shall be returned
13 to the tenant or lessee of residential or dwelling premises within one month after the
14 lease shall terminate in accordance with R.S. 9:3252, except that the landlord or
15 lessor may retain all or any portion of the advance or security deposit which that is
16 reasonably necessary to remedy a default of the tenant or to remedy unreasonable
17 wear to the premises the leesee's failure to perform. If any portion of an advance
18 or a security deposit is retained, by a landlord or lessor, he the lessor shall forward
19 furnish to the tenant or lessee, within one month after the date the tenancy
20 terminates, an a written itemized statement accounting for the proceeds which are
21 amount retained and giving the reasons therefor. The tenant shall furnish the lessor
22 a forwarding address at the termination of the lease, to which such statements may
23 be sent for the retention.
24 B. In the event of a transfer of the lessor's interest in the leased premises
25 during the term of a lease, the transferor shall also transfer to his successor in interest
26 the sum deposited as security for performance of the lease and the transferor shall
27 then be relieved of further liability with respect to the security deposit. The
28 transferee shall be responsible for the return of the lessee's deposit at the termination
29 of the lease, as set forth in Subsection A of this Section. The lessee shall furnish the
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1 lessor an address to which the security deposit and any statements shall be sent.
2 A lessee who fails to furnish an address to the lessor does not forfeit the right to
3 the return of the security deposit or to any written itemized statements.
4 C. Paragraph A of this Section shall not apply when the tenant abandons the
5 premises, either without giving notice as required or prior to the termination of the
6 lease. If the lessee fails to bring an action for the return of the security deposit
7 within three years after the date of the termination of the lease, the security
8 deposit is deemed abandoned and becomes the property of the lessor.
9 Revision Comments - 2017
10 (a) The 2017 revision restates and clarifies the parties' obligations with
11 respect to the security deposit. As under prior law, any security deposit furnished in
12 connection with a written or oral residential lease must be returned to the lessee at
13 the termination of the lease. The lessor may retain all or part of the security deposit
14 necessary to remedy the lessee's failure to perform; however, in this case the lessor
15 must furnish the lessee with a written itemized statement accounting for the amount
16 retained. The itemized statement must provide categorical specification which
17 reasonably apprises the lessee of the reasons for the withholding. See Garb v.
18 Clayton-Kent Builders, Inc., 307 So. 2d 813 (La. App. 1 Cir. 1975). The requirement
19 that the itemized statement be "written" may be satisfied by any means of electronic
20 communication. Moreover, the security deposit itself may be returned by electronic
21 means.
22 (b) The lessee may furnish an address to the lessor orally or in writing,
23 including by any means of electronic communication.
24 (c) Prior Subsection B of this Section has been eliminated. The law governing
25 transfer of obligations, from which the former provision deviated significantly,
26 provides for the obligations of the lessor and a transferee of the lessor's interest in the
27 leased premises with respect to the security deposit.
28 (d) Prior Subsection C of this Section has been eliminated. Whereas prior law
29 deprived a lessee who abandoned the premises of any right to either the deposit or
30 a written statement accounting for any withholding, under the 2017 revision, a lessor
31 may retain the security deposit only as necessary to remedy the lessee's failure to
32 perform and must provide an accounting, even when the lessee abandons the
33 premises.
34 (e) This revision clarifies the lessor's rights and obligations with respect to
35 unclaimed security deposits by providing that the deposit is deemed abandoned and
36 becomes the property of the lessor if the lessee fails to commence an action for its
37 return within three years after the date of the termination of the lease.
38 (f) An advance payment of rent is distinct from a security deposit. A security
39 deposit is a payment made by a lessee to secure the performance of the lessee's
40 obligations, whether arising by law or under the lease agreement. Advance payments
41 of rent are not governed by this Part.
42 §3251.1. Security deposit; security interest
43 A. The lessor's interest in the security deposit is a security interest under
44 the Uniform Commercial Code. Nevertheless, R.S. 10:9-207(c)(2) shall not apply
45 to the security deposit. Unless otherwise required by law or by agreement of the
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1 parties, the lessor is not required to hold the security deposit in a separate
2 account or to remit to the lessee any interest earned on the deposit.
3 B. The claim of a lessee to a security deposit held in a deposit account
4 maintained by the lessor with a financial institution is preferred to that of the
5 lessor's creditors, except that the lessee's claim is subject to the rights of the
6 following persons:
7 (1) The financial institution with which the deposit account is
8 maintained.
9 (2) A transferee of funds from the deposit account, unless the transferee
10 acts in collusion with the lessor in violating the rights of the lessee to the security
11 deposit.
12 (3) A secured party holding a security interest perfected by control of the
13 deposit account in accordance with R.S. 10:9-104.
14 Revision Comments-2017
15 (a) This Subsection is new and adopts the view that the nature of a security
16 deposit is that of security. See C.C. Art. 3136 (Rev. 2014). The deposit secures the
17 obligations of the lessee.
18 (b) Because the security deposit is a movable, its use as collateral by contract
19 is governed by Chapter 9 of the Uniform Commercial Code. Chapter 9 would
20 normally require the lessor to keep the deposit "identifiable" or maintained in a
21 separate account holding fungible deposits. R.S. 10:9-207(b)(3). In addition, because
22 any interest earned on the security deposit would belong to the lessee, the lessor
23 normally would be required to remit interest to the lessee unless it is applied to the
24 lessee's obligations under the lease. R.S. 10:9-207(c)(2). These requirements are far
25 too onerous for most residential lessors. Therefore, under the 2017 revision, the
26 lessor is relieved of the obligation to pay interest to the lessee and, unless the parties
27 agree or applicable law provides otherwise, the lessor is relieved of the obligation
28 to maintain the deposit in a segregated deposit account.
29 (c) Subsection B provides that when a security deposit is held in a deposit
30 account maintained with a financial institution, the rights of the lessee are superior
31 to the rights of the lessor's other creditors, with some exceptions. This preference is
32 similar to the privilege of a depositor on the thing deposited. See C.C. Art. 3222. In
33 the event that the security deposit is co-mingled with other fungible collateral in the
34 same deposit account, the lessee's rights in the security deposit will persist to the
35 extent that the security deposit can be identified through an acceptable tracing
36 method. See R.S. 10:9-315(b)(2).
37 (d) The preference of the lessee's claim to the security deposit held in a
38 deposit account maintained by the lessor with a financial institution does not apply
39 to the rights of that financial institution, the rights of a secured party who holds a
40 security interest perfected by control of the deposit account, or the rights of a
41 transferee of funds from the deposit account who does not act in collusion with the
42 lessor in violating the rights of the lessee. These exceptions are similar to those
43 applicable to the rights of a pledgee to cash proceeds of rent deposited into an
44 account maintained with a financial institution. See R.S. 9:4402 (Rev. 2014).
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1 §3252. Damages; venue Return of security deposit; time periods
2 A. The willful failure to comply with R.S. 9:3251 shall give the tenant or
3 lessee the right to recover actual damages or two hundred dollars, whichever is
4 greater, from the landlord or lessor, or from the lessor's successor in interest. Failure
5 to remit within thirty days after written demand for a refund shall constitute willful
6 failure. The lessor shall return the security deposit and furnish a written
7 itemized statement accounting for any retention within one month after the date
8 of termination of the lease. If the lessee remains in possession of the premises
9 after the termination of the lease, the period within which the lessor shall return
10 the security deposit and furnish any statement does not begin to run until the
11 lessee has relinquished possession to the lessor.
12 B. An action for the recovery of such damages may be brought in the parish
13 of the lessor's domicile or in the parish where the property is situated. If the lessee
14 has not furnished an address to the lessor for the return of the security deposit,
15 the period within which the lessor shall return the security deposit and furnish
16 any statement does not begin to run until the address is furnished.
17 Revision Comments - 2017
18 When the lessee remains in possession of the premises after the termination
19 of the lease, either with or without the consent of the lessor, the lessor may, as a
20 practical matter, be prevented from inspecting the premises and determining whether
21 retention of the security deposit, if any, is warranted. Therefore, when the lessee
22 remains in possession of the premises after the termination of the lease, the lessor's
23 obligation to return the security deposit does not become due until one month after
24 the lessee has vacated the premises. Additionally, a lessor is prevented as a practical
25 matter from returning the deposit until an address for that purpose has been furnished
26 by the lessee. Thus, the term within which the lessor must return the security deposit
27 does not begin to run until the lessee furnishes an address for that purpose.
28 §3253. Costs and attorney's fees Return of security deposit; damages; venue;
29 attorney fees
30 In an action brought under R.S. 9:3252, the court may in its discretion award
31 costs and attorney's fees to the prevailing party.
32 A. If the lessor fails to comply with R.S. 9:3252, the court shall order the
33 return of any portion of the security deposit wrongfully retained and shall
34 award damages in the amount of three hundred dollars or twice the amount of
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1 the portion of the security deposit wrongfully retained, whichever is greater. If
2 the court determines that the lessee knew or should have known that the
3 security deposit is not owed or if the lessor's failure to perform was technical in
4 nature, the court may exercise its discretion to refuse an award of damages.
5 B. An action for the recovery of damages may be brought in the parish
6 of the lessor's domicile or in the parish where the premises are situated.
7 C. In an action for the return of the lessee's security deposit, the court
8 may award costs and attorney fees to the prevailing party.
9 Revision Comments - 2017
10 (a) Under prior law, the lessor's willful failure to comply with the
11 requirement to return the security deposit or provide an itemized statement
12 accounting for any withholding gave the lessee the right to recover actual damages,
13 or two hundred dollars, whichever was greater. Willful failure was defined as the
14 failure to remit within thirty days after written demand. The 2017 revision eliminates
15 the notion of "willful failure," and with it, the requirement that the lessee make
16 written demand for the return of the deposit as a prerequisite to an award of damages.
17 This revision also increases the amount of damages that may be recovered.
18 (b) The purpose of providing for an award of damages under this Section is
19 to deter the arbitrary withholding of the security deposit by the lessor. Recognizing
20 this, courts have required lessors to comply strictly with the requirements of this
21 Part. See, e.g., Golden v. Riverside Apartments, Inc., 488 So. 2d 478 (La. App. 3 Cir.
22 1986). Even if there is a valid dispute between the parties as to the amount of the
23 security deposit to be returned, the lessor must return the deposit or an itemized
24 statement within the requisite time or suffer the penalties provided. Bradwell v.
25 Carter, 298 So. 2d 853 (La. App. 1 Cir. 1974). Nevertheless, courts occasionally
26 have refused a damages award when a lessee's demand for the return of the deposit
27 is not made in good faith and the lessor's noncompliance with the statute is technical
28 in nature. See, e.g., Flynn v. Central Realty of Louisiana, Inc., 338 So. 2d 774 (La.
29 App. 4 Cir. 1976) (refusing to award damages to lessee who demanded the return of
30 the deposit after knowingly failing to pay last month's rent and receiving verbal
31 explanation of reason for withholding from lessor). The elimination of the notion of
32 "willful failure" militates in favor of increased judicial flexibility in the awarding of
33 damages. Although a verbal explanation of the reasons for withholding the deposit
34 will not suffice in every case, courts may refuse to award damages when the lessee
35 knew or should have known that the security deposit is not due and the lessor's
36 failure to perform was technical in nature.
37 §3254. Waiver of tenant's rights prohibited
38 Any waiver of the right clause that, in advance, excludes or limits the
39 rights of a tenant lessee under this part Part shall be absolutely null and void.
40 Section 4. The provisions of this Act shall become effective January 1, 2018.
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.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Thomas L. Tyler.
DIGEST
SB 120 Original 2017 Regular Session Ward
Present law (C.C. Art. 2704) provides for the failure to pay rent.
Proposed law provides an exception in the form of a grace period for residential leases only.
Present law (C.C. Art. 2725) provides for the extension of the term of a lease.
Proposed law provides that in a residential lease, if the parties have agreed that the term will
be automatically extended unless notice is given, the lessee's notice not to extend shall not
be required more than 30 days prior to the expiration of the term.
Present law (C.C. Art. 2728(2)) provides that notice of termination of a month-to-month
lease shall be given ten days before the end of the month.
Proposed law increases the notice from ten days to 30 days for residential leases and retains
the notice period for all other leases.
Present law (C.C.P. Art. 4701) provides for the notice to vacate leased premises.
Proposed law provides that a notice to terminate, a written notice of dissolution, and a
written notice to pay rent may all be considered a notice to vacate in certain circumstances.
Proposed law requires notice to be delivered no fewer than five days prior to the filing of a
rule to show cause and requires the notice to state the reasons for termination of the lease.
Proposed law also prohibits the waiver of notice in residential leases.
Present law (C.C.P. Art. 4702) provides for the notice to vacate for occupants.
Proposed law makes the notice to vacate parallel for both lessees and occupants.
Present law (C.C.P. Art. 4703) provides for service when the premises are abandoned.
Proposed law retains these provisions but updates terminology.
Present law (C.C.P. Art. 4704) provides definitions.
Proposed law retains these provisions but updates terminology.
Present law (C.C.P. Art. 4731) provides for the rule to show cause why possession should
not be delivered.
Proposed law retains these provisions but updates terminology.
Present law (C.C.P. Art. 4732) provides for the trial of the rule to show cause and the
judgment of eviction.
Proposed law provides for a delay in the rendition of the judgment, not to exceed seven days,
for exceptional circumstances.
Present law (C.C.P. Art. 4912) provides for eviction proceedings in the justice of the peace
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courts.
Proposed law retains these provisions but updates terminology.
Present law (R.S. 9:3251) provides for the return of a security deposit within one month after
the termination of a lease and allows for the retention of a portion of the deposit to remedy
any default.
Proposed law retains these provisions but clarifies language.
Proposed law provides that if the lessee fails to provide an address for the return of the
deposit, he does not forfeit his right to the return.
Present law (R.S. 9:3251) provides for the transfer of the deposit to a successor in interest
of the leased premises.
Proposed law deletes these provisions.
Proposed law provides for the abandonment of the security deposit if not claimed within
three years.
Proposed law (R.S. 9:3251.1) provides that a security deposit is a security interest, but the
lessor is not required to hold the deposit in a separate account or pay interest to the lessee
and proposed law sets forth the ranking of a claim to the deposit.
Present law (R.S. 9:3252) provides for venue and damages for the willful failure to comply
with statutory requirements to return the deposit.
Proposed law retains the venue provision but moves it to R.S. 9:3253 and provides a new
damage provision in R.S. 9:3253.
Proposed law provides the time period for the return of the deposit and requires a written
statement accounting for the retention of any funds.
Present law (R.S. 9:3253) provides for costs and attorney fees.
Proposed law retains these provisions but moves it to R.S. 9:3254 and provides for the
damages which may be awarded for a lessor's failure to comply with this Part.
Proposed law provides that damages may equal $300 or twice the amount of the portion of
the deposit wrongfully retained, whichever is greater. Proposed law also gives the court
discretion in the awarding of damages for technical violations.
Present law (R.S. 9:3254) provides for the nullity of any waiver of a lessee's rights.
Proposed law retains these provisions but modernizes the terminology.
Effective on January 1, 2018.
(Amends C.C. Arts. 2704, 2725 and 2728(2), C.C.P. Arts. 4701, 4702, 4703(section
heading), 4704, 4731, 4732 and 4912, and R.S. 9:3251-3254)
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