Mar 242014
 

Owen Courreges

Louisiana’s relatively lax landlord-tenant laws arguably need to be revisited, but a new proposal in the state legislature tilts the scales too far in favor of tenants who breach their obligations.

In late February, Louisiana State Senator Yvonne Dorsey-Colomb filed Senate Bill 298, which includes a laundry list of revisions to the laws governing residential leases.  The centerpiece is a non-waivable 30-day eviction notice period for all evictions, regardless of grounds.  Under existing law, a tenant may be evicted with five days notice, although this notice may be waived by agreement of the landlord and tenant in the lease.

David Zisser of the Lawyer’s Committee for Civil Rights Under Law was quoted in the Times-Picayune opining that the change would bring Louisiana in line with the policies of the majority of states.

This is not the case.

Although many states do have a thirty day eviction notice provision, these provisions only apply to leases that are terminated for no specified reason.  Such evictions are uncommon.  As one would expect, most evictions are for nonpayment of rent or specific violations of the lease agreement.  It is rare for landlords to evict good tenants.

Accordingly, in the vast majority of states, evictions for nonpayment of rent require only a very brief notice period, normally between three and seven days (depending on the particular state).  Evictions for breaches of other lease obligations sometimes have a slightly longer notice period, usually between five and 10 days.

I am not aware of any state that requires thirty days notice for all evictions.  I would be shocked if there was one because it’s a blatantly bad policy.

When a tenant fails to pay rent or commits a serious breach of the lease, a landlord is well-justified in demanding that the tenant leave as soon as possible.  Landlords have bills associated with the property that they have to pay.  If a tenant’s rent is going towards a mortgage payment (including taxes and insurance) the bank won’t sympathize if the landlord cannot pay because his tenants stiffed him and cannot be evicted in a timely fashion.

In the same vein, if a tenant is essentially destroying the apartment, he probably shouldn’t be given an additional 30 days to finish the job.  In fact, the tenant probably shouldn’t receive any significant notice at all.

It would have been far more reasonable to make the existing five day notice provision non-waivable, and provide a truncated notice provision for emergency evictions.  That way, tenants could not sign away their right to notice, and landlords would be able to do more rapid evictions in cases where a tenant’s conduct needs to be addressed immediately.

Alas, therein lies the chronic fatal flaw in Dorsey-Colomb’s bill.   It combines good ideas with bad ones, and ultimately fails to strike a reasonable compromise between the competing interests of tenants and landlords.

Other provisions in SB 298 are actually quite reasonable.  Dorsey-Colomb proposes, for example, to increase the penalty for landlords to illegally retain security deposits to pay a penalty of up to twice the amount of the deposit.  The current penalty is only $200, which is widely regarded as inadequate to stem the epidemic of landlords making bank on funds illegally retained.

However, SB 298 would also reduce the amount of time to refund the deposit to 14 days from 30, which is a very brief window for landlords to assess damage and receive estimates for repairs.  It further requires all landlords to keep security deposits in a separate bank account.  Although this may make some sense for landlords who rent several units, it places a needless burden on small properties like the archetypical New Orleans shotgun double in which the owner lives in one side and rents out the other.

While Louisiana’s present landlord-tenant laws are at least arguably too favorable to landlords, the situation will not be solved by SB 298, which invites abuse by tenants.  The 30-day notice provision is the most radical and egregious example.

Instead of a comprehensive reform bill that reeks of grandstanding, the focus needs to be on individual reforms.  A bill to make the five day notice provision non-waivable would be reasonable and stand a decent chance of being passed.  A bill including a significant increase in the penalties for illegally withholding a security deposit might also garner support in Baton Rouge.

SB 298, however, is a complete non-starter.  Accordingly, I agree with John Radziewicz , who told the Times-Picayune, “I don’t think this has a prayer.”

Even those sympathetic to the idea of reform of residential lease laws need to acknowledge that SB 298 includes too many changes and too many of them are wrong.  I’ll be glad to see it fail, but more importantly, I’ll be hopeful that more reasonable reforms can emerge in the future.

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.

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  • boathead12

    I agree with you Owen that this bill would significantly increase the cost of maintaining rental property, and therefore drive up rents. However, there are a few extremely unscrupulous landlords in Uptown New Orleans who need to be taken down, and it appears there currently is no legal way to do it. One needs to look no further than Napoleon Ave. at a few stately but blighted old homes. In fact, if there is a large blighted home in your hood divided into many more units than allowed by zoning, one of two property owners are likely to blame. They were divided into 10 or more apartments years ago. It is clearly the owners intent to keep them rented in this manner until the structures are condemned as uninhabitable. The leases are written to eliminate the tenants rights as much as possible and guarantee the security deposit will not be refunded. I have one such property owned by the “worst landlord in New Orleans” (Google them) down the street, and it seems I’ll be stuck with it until the owners die. It’s very frustrating, since they take from the community and it appears there is no recourse against them.

    • Owen Courrèges

      boathead,

      I agree, which is why I’d support the policies I mentioned here — making eviction notices non-waivable and greatly increasing penalties for illegally withholding security deposits. As for housing being blighted, though, it’s a whole ‘nuther ball of wax. I had a previous column on proposed reforms in that area, and they weren’t very well-thought-out either.

  • Owen Courrèges

    ultimateliberal,

    I’m glad you can afford that. Many landlords can’t afford to give a tenant two months in free rent (which is about what this amounts to) plus pay for an eviction.

    If you’ve actually been through the eviction process, you should know that the notice period is not the only timeframe involved here. The actual lawsuit adds additional time as well, and it isn’t cheap.

    Here’s how it goes: The tenant doesn’t pay by the fifth, so you file the 30 day eviction notice (as it would be under this law). Then after thirty days, you spend hundreds of dollars to file for an eviction, wait for a date on the court’s docket (which can be as much as a few weeks) and then once you actually have your judgment, you wait until the Constable’s office can come out to remove the tenant.

    That whole process, besides being stressful and onerous, is going to take several weeks. If the landlord uses the rent to pay the mortgage, he might already be in foreclosure. If the rent includes utilities, he might not be able to pay his light bill.

    And let’s not forget the bad consequences for good tenants. Facing a bizarrely lengthy eviction process, this would force landlords to increase rents, or require an additional month of rent up front, which would have a major negative effect on the affordability of housing.

    It sounds like you think that deadbeat tenants should be able to live rent-free for about three months if they refuse to leave, which is insane. That is not the law anywhere because it’s ridiculous.

  • Owen Courrèges

    ultimateliberal,

    Yeah, no. Again, you just seem content allowing people to stay rent free for an extended period. I’m not, and I know many landlords can’t afford that.

  • Owen Courrèges

    Yvonne,

    Thanks for the dose of sanity. I’m frankly becoming enraged at the notion that the notice period is the same as the time it actually takes to force a tenant out. It’s not. It takes weeks to get an eviction judgment, and nonpaying tenants often wait out the entire process. I’ve had it happen to me — it was horrible and financially damaging.

    It seems to me that a lot of people want landlords to essentially be charities as a matter of law, and that’s flat-out absurd. If a tenant doesn’t pay, they need to leave quickly if the landlord wants them to. It’s one thing for landlords to work with tenants informally, it’s quite another for tenants to be able to stay free because the law forces it.

  • boathead12

    I’ve had the experience where 72 hours was enough time for the friends of my tenant to smash holes in over 2000 sq. ft. of sheetrock and cut the copper pipes out of the walls. A friend tells the story of a prominent NOLA musician who strung her out for 30 days in court. In fact he was out of the house, but was buying time for each of the chunks of steak that he had placed in each kitchen cabinet and refrigerator to melt into maggot slime. Every cabinet had to be replaced.

    Now shame on us for not taking more care in vetting our tenants, but there are definitely instances where a 1 hour eviction period is still too much time.

  • Owen Courrèges

    Hear, hear. That’s the issue I’m really trying to bring in here. Dragging out evictions is massively unfair to landlords, who already have to go to considerable time and expense to evict. It’s not something a sane landlord does on a whim.

    There are slumlord-type landlords who don’t make necessary repairs and illegally withhold deposits, but any reforms need to target those behaviors — providing an insanely long notice period for evictions simply kills any chance for reforms that are actually needed.

  • Owen Courrèges

    Jackson,

    Yes, landlords could start requiring larger deposits or could simply require the payment of additional rent up front (i.e., paying the ‘last month’ of the lease, which a minority of landlords already do). This would obviously not be positive for good tenants, who would need a great deal more money to secure a lease. No matter how you worked it out, tenants would basically be insuring the landlord against the possibility of needlessly lengthy eviction.

  • Owen Courrèges

    Drainage,

    Most leases contain holdover provisions that essentially make the lease month-to-month, but the rent automatically increases. I see no reason for a legal mandate in this area; the terms should be agreed to in the lease.

  • Owen Courrèges

    N1120A,

    I don’t normally use all-caps because it’s a tad obnoxious, but I’m at the end of my rope so I’m going to do it:

    30 DAY EVICTION NOTICES ARE NOT THE NORM, PERIOD. WITH EVICTIONS FOR NONPAYMENT OR BREACHES OF THE LEASE, THE NOTICE PERIOD IN EVERY JURISDICTION IS (WITH FEW EXCEPTIONS) VERY BRIEF. I HAVE CHECKED, UNLESS YOU HAVE DONE SO AS WELL, PLEASE STOP SPREADING MISINFORMATION.

    • ultimateliberal

      That is why IT NEEDS TO BE CHANGED!

      • Owen Courrèges

        ultimateliberal,

        You’re nuts.

        • ultimateliberal

          Thirty-day evictions allow for time to find other suitable housing. You’d prefer homelessness to suitable, less expensive housing (or a subsidy) for your tenants?

          Three of my tenants are on Housing Choice Vouchers. I helped two of them get vouchers when they started having problems meeting all their expenses.

          One had the decency to meet with me before missing a rent payment and asked for a lowered rent.–he was suddenly laid off from a good job. A social service agency paid the rent during his first month out of work. Yes, I sent him there, and the agency paid me directly.

          The other became disabled due to a serious illness that has persisted for six years now. The third had a voucher before leaving her previous landlord, so I knew she was all set with affordable payments.

          There are ways to deal with slow-pay tenants that does not insult them or send families into the streets.

  • Owen Courrèges

    ultimateliberal,

    THREE MONTHS? You honestly think that’s acceptable? Ridiculous.

    And no, you don’t get to dictate what losses landlords should or should not be able to take so somebody can stay in their space free of charge. You’re basically telling the struggling owner of a shotgun double that he should lose his home if he gets a deadbeat tenant, and that it’s his own fault for “not having what it takes” to invest in real estate. That’s cruel and stupid.

    A person should have neither the right nor the ability to stay in somebody else’s property for months without paying rent when the landlord wants them out. The loss of that income is financially damaging and there’s no valid reason to force landlords to shoulder it.

    • ultimateliberal

      “A person should have neither the right nor the ability to stay in
      somebody else’s property for months without paying rent when the
      landlord wants them out.” Correct; I wholly agree. That is why landlords must act swiftly at the first indication of tenant problems… Don’t give any deadbeat any slack. The first time the rent is late, start the process and help the tenant find a new place FAST.

      What is the essential difference between 1) having a non-paying tenant and 2) having a vacant apartment while seeking a tenant? There’s no income in either instance. That is why mortgagors do not rely heavily on rental income for qualifying; neither should the mortgagee.

      The only difference I see is that showings must be done while an undesirable is living there, or showings can be done in a pristine, vacant unit, the latter more conducive to acceptance by a potential renter. Also, after the former tenant leaves, there is likely a one month period where no rent is being collected while the expenses of repairs, cleaning, and redecorating are incurred….a double whammy that can surprise inexperienced landlords.

      • Owen Courrèges

        ultimateliberal,

        But with a 30 day notice period, the process ISN’T fast. It would take MONTHS to evict a person with that extensive a notice period. And that’s why such a notice would be absurd and completely unreasonable.

        As for having a vacant apartment, I don’t know your experience, but I can always rent an apartment out quickly if I advertise it and ask for a reasonable amount of rent. I think the longest period my apartment has been vacant is about two weeks.

        You’re being silly and refusing to admit the fundamental flaws in your argument. I’m really wondering if you’re just a troll at this point.

        • ultimateliberal

          Not a troll; a successful real estate investor.

  • Owen Courrèges

    ultimateliberal,

    >>In the first place, a landlord who has any business sense would NEVER RELY ON THE RENT<>would not offer housing to someone who was not vetted beforehand and found acceptable, would have tenants who know that they have to leave when told to do so.<<

    Because of course all landlords are clairvoyant… Obviously, a tenant may seem perfectly acceptable but turn out to be a problem later. And they may well lie about their willingness to leave voluntarily. The fact that a certain segment of the population can hide its mendacity tends to defeat your argument, wouldn't you say?

    • ultimateliberal

      No ethical mortgager would lend to a buyer who must rely on the rent unless the buyer is already an experienced landlord. Generally, the mortgagor will bend a little if future rent is needed to make up a 2-3% difference in qualifying income, if the buyer’s income appears to be steady and risk-free, and debt load is minimal.

      I stand by all that I have written. If landlords don’t have the people skills and a sixth sense, they could be wrong with their choices of tenants.

      I know of no ethical business person who will fire someone “immediately” without counseling and providing a second chance to relearn the job. It may take another month, and the employee may eventually be forced out. C’est la vie!

      Tenants are people, too. They need a chance to rethink where they are and time to plan where they need to go next.

      • Owen Courrèges

        ultimateliberal,

        You’re completely wrong and full of crap. I’ve seen it many times before where a person buys a shotgun double and uses rental income from one side to help pay the mortgage. It’s very commonplace, and if you claim that it doesn’t happen, you’re a liar.

        Rental income is important and tenants shouldn’t be able to stay for months rent-free. You think they should be. You’re wrong. That’s the end of this.

        • ultimateliberal

          I never said that rental income cannot be used to help with a mortgage; mortgagers take a MUCH CLOSER LOOK at other resources before qualifying someone on future rental income. And they will not consider ALL of the potential receipts unless the borrower can establish a solid reputation as an experienced landlord.

  • ultimateliberal

    Same here….We have a very nice elderly couple who were a little behind, so we adjusted the due date to coincide with their Social Security benefits payment schedule. Now, they pay 2/3 on the10th, and 1/3 on the 15th–his SS is paid on the 1st Tuesday, hers on the 2nd Wednesday. They’ve been with us for nine years–the apartment is spotless, and he fixes things without bothering us. We also bought the paint when they wanted to update the walls–he did the work in a professional manner.

    In general, all our units have late fees of $20 on the 11th (first warning goes out on the 7th), another $20 on the 20th of the month. Eviction notice on the 26th, if the rent plus $40 is not paid in full by the 25th.

    The eviction letter simply states that we anticipate they do not have the means to catch up with back rent in addition to their next month’s obligation; therefore, they need to seek a less expensive dwelling, and we will help them (with info, not moving costs) get out by the end of the following month. “Attached is a list of reasonably-priced apartments and agencies that provide rental subsidies,” is part of the eviction notice.

  • DeAndre Johnson

    How do you call someone “naive” when he(or she) has been renting for close to 40 years?

    • Owen Courrèges

      DeAndre,

      Because what he’s saying doesn’t seem to suggest that. He’s being ridiculous.

    • ultimateliberal

      These naysayers must have problems with their tenants. I can’t solve their problems. I can only state that I have great tenants and they respect and appreciate me as much as I respect and appreciate them. And I’m pretty sure I am NOT nuts, nor am I a liar.

      What’s the point of acting so immature with the pointed name-calling? I make good money from my tenants, and I’ve had problems with only three in forty years….only one formal eviction which took two months.