The Times-Picayune has adopted a new crusade – renter’s rights.
It started with a series of pieces from Times-Pic staff writer Richard Webster regarding the limited rights tenants have in Louisiana. Webster noted that housing advocates are pushing for Louisiana to adopt the Uniform Residential Landlord and Tenant Act of 1972, which has only been adopted in a minority of states with significant variations (hence, it isn’t very “uniform”).
These articles were followed up by an opinion piece from columnist Jarvis DeBerry, who derided Louisiana law regarding the return of security deposits, the speed of evictions, and housing standards.
There is some truth to Webster’s reports and DeBerry’s column. Louisiana does not provide many additional rights to tenants to hold landlords’ feet to the flames, and many landlords use their (usually) superior financial position to take advantage of tenants. There are horror stories of landlords making money off of withholding deposits and including unreasonable (and frequently illegal) provisions in their leases.
However, there is also a great deal of misinformation in these pieces.
First, Webster cites Ben Orzeske, legislative counsel with the Uniform Law Commission based in Chicago, for the proposition that Louisiana is unique insofar as landlord-tenant issues are dealt with under property law as opposed to contract law. This is simply incorrect. Residential leases are defined in the Louisiana Civil Code as conventional obligations or contracts in Book 3 of the Civil Code, whereas property law is primarily restricted to Book 2.
Orzeske argues that this supposed quirk in Louisiana law results in a system where a tenant cannot withhold rent due to a breach of the landlord’s obligations. This is not accurate. The primary obligation of landlords in a residential lease are normally to deliver and maintain peaceful possession make to make necessary repairs. If a landlord fails in these obligations, a tenant may sue for damages and dissolution of the lease. A tenant facing a landlord who refuses to make repairs may also make repairs themselves and charge it against their rent.
A worse error is made by DeBerry, whose column alleges that “the maximum a landlord can be fined [for wrongful failure to return a security deposit] is $200.” This is a minimum, not a maximum, and DeBerry fails to note that Louisiana law also allows for a tenant to recover court costs and attorney’s fees. Compounding this error, DeBerry proceeds to analogize the $200 fine against landlords to the fines for felony theft. What DeBerry doesn’t recognize is that a lease is a contract, and breach of a contract is not analogous to criminal theft. Withholding a security deposit is no more felony theft than is nonpayment of rent.
After all, what’s sauce for the goose is sauce for the gander. If we want to impose draconian, criminal fines for refusal to release a security deposit relative to a private contract, then surely we should be clapping deadbeat tenants in irons.
This, in my opinion, is the over-arching problem with Webster’s and DeBerry’s pieces. They lean over so heavily in favor of tenants, selectively characterizing Louisiana law, that they ignore all countervailing considerations.
In truth, good landlords are probably victimized by bad tenants at least as often as bad landlords victimize good tenants. I’ve been on both sides of this divide.
I personally rent out a one-bedroom apartment, and against my better judgment I rented to an individual with decent income but relatively poor credit. He later lost his job, told me a sob story, and I allowed him to fall behind on his rent. He only paid rent sporadically over the next few months, and I insisted that he get current or I would have to terminate his lease. He then began reciting a novel laundry list of trivial complaints about the apartment in an angry, frenzied manner. I responded by telling him that I would be evicting him as soon as possible. The eviction process was expensive and took weeks.
My situation is actually fairly common in New Orleans; people rent out small apartments in their homes or accessory structures. The idea that evictions should be even more difficult and lengthy, regardless of how much consideration you give tenants, seems like a slap in the face.
Louisiana law may need some minor revisions, but not those being proposed by housing advocates. The claim that evictions can be executed in as little as 24 hours is deceptive. In order to evict a tenant, a landlord must file a Petition for Eviction, pay the filing fee, and then pay an additional fee to have the tenant served with the petition. The tenant must then be served with the petition and the trial date, which can be several weeks in the future depending on the court’s docket. Accordingly, a tenant facing eviction has typically been aware that the landlord wants them out for weeks.
Moreover, the fee for a tenant to answer a Petition for Eviction is far less than the fee to file and serve the petition, and in my experience, judges will listen to tenants at trial irrespective of whether they have formally answered. Showing up to court is enough.
We definitely need better code enforcement. Nobody likes to hear about landlords charging rent for blighted housing or including illegal, unenforceable in leases. I’ve personally seen leases where landlords include comical provisions claiming legal authority to perform evictions without legal process, even to the point of physically removing tenants and their belongings (I’ve never heard of a landlord trying this, but if they did, they would be committing a number of serious crimes). Perhaps we do need additional penalties for this type of conduct.
What we don’t need, however, is to slow the eviction process or bend over backwards in favor of tenants. Every landlord is not the Snidely Whiplash to their tenants’ Nell Fenwick. The law should reflect that.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.