Here in Louisiana, as is the case in many jurisdictions, evictions of tenants and eviction court proceedings can be tricky. There are a number of pitfalls that can slow down the eviction process and savvy landlords should be aware of how the process works so that they can get their property back into commerce quickly.
1) Evictions, by law, are to be conducted quickly;
A true eviction proceeding that does not ask for money damages is an summary proceeding. In Louisiana law there is a major difference between ordinary and summary proceedings.
An eviction is a summary proceeding. La. C.C.P. art. 2592(12); La. C.C.P. art. 4731(A); Betts v. Hoffman,07-1054 (La. App. 3 Cir. 1/30/08), 975 So. 2d 200, 204. La C.C.P. art 2591 states that a Summary Proceeding are to be “conducted with rapidity.”
In Sizeler Real Estate Mgmt. Co. v. Family Dollar Stores of La., Inc., 01-1974 (La. App. 4 Cir. 3/20/02), 814 So. 2d 611, the Fourth Circuit held that when a lessor is attempting to terminate a lease through an eviction proceeding, a summary proceeding is “entirely appropriate.” The Court stated: “When the lessee’s right of occupancy has ceased because of the termination of the lease for any reason, the lessor is afforded the use of summary proceedings to obtain possession of the premises.” Id. at 614. Further, “[t]ermination or continued existence of a lease is triable in a summary proceeding to evict a lessee.” Id.
2) Do not ask for money damages in an eviction – it will force an ordinary proceeding;
Many landlords and their attorneys make the mistake of asking for money damages, such as late rent and property damages when filling for an eviction. This is not proper, and can convert the “rapid” summary proceeding into an ordinary proceeding. This conversion will greatly slow down the progress of the eviction. The eviction will go from resolution in weeks to months or years.
“In Major v. Hall, the Supreme Court stated: “[t]he law of this state is clear to the effect that damages, in the absence of a special provision, may only be recovered in an ordinary proceeding.” 262 La. 243, 263 So.2d 22 (La. 1972). In Friedman v. Hofchar, Inc., 424 So.2d 496 (La.App. 5th Cir. 1983), the court, citing Major, stated, “[t]his was a summary proceeding, and the Supreme Court of Louisiana has said, … that money damages are not recoverable in summary proceedings on a rule to show cause.” [emphasis in original.] Also see, Housing Authority of New Orleans v. Wilson, 503 So.2d 565 (La.App. 4th Cir. 1987).”Abdallah v. Uptown Dante Supermarket, Inc., 137 So. 3d 745, 747-48 (La. Ct. App. 2014).
I like to file my eviction whether they are commercial or residential, as a “rule to evict” and have it served on the tenant, personally. From there the court will set the date and the parties will show up for the eviction trial.
3) Do not accept late rent;
One key element that befuddles most unsophisticated landlords is the acceptance of rent after the lease has been terminated. This is the most tempting and fatal way to damage an eviction. The landlord is technically entitled to the money because the terminated tenant will not vacate the premises. However if that landlord accepts the money, they will have acquiesced to the tenant staying in the building.
If the landlord holds onto the checks of the tenant and then evicts the tenant, its possible that they can deposit the held rent checks after the landlord has regained the property.
4) Make sure you serve the proper party and timely, 3 days before hearing;
Service is probably the most important aspect of the eviction, without it then you have nothing. I prefer personal service but that is not always possible, and the sheriff is allowed to tack the eviction papers to the door, thus giving proper notice.
Note that the timing of service is paramount. The rule states, that service of Rule to Evict must be made at least 3 business/working days prior to summary eviction trial. South Peters Plaza, Inc., v. P.J. Inc., 05-1050 (La. App. 4 Cir. 5/31/06), 933 So. 2d 876, 878; see also, La. C.C.P. art. 5059. This means that if your eviction is scheduled for a Wednesday, then service needs to be accomplished on or before the Thursday before the hearing to be safe.
5) Is discovery available for evictions?
There are no specific rules with regards to discovery in an eviction summary proceeding. Because, of the fact that an answer is not required to be filed by the defendant prior to the hearing (La C.C.P. art. 2593) and that summary proceedings are to be “conducted with rapidity” (La. C.C.P. art. 2591) it is likely, that normal rules of discovery do not apply.
So if you are a landlord in the metro-New Orleans area, especially Uptown New Orleans, then Smiley Lawcan help. Contact us today to see what rights you have regarding the eviction of a lingering tenant.