Eviction Defenses
A tenant facing eviction has the right to appear in court and present defenses. Louisiana law recognizes several grounds on which a tenant may successfully resist eviction, ranging from procedural defects in the landlord’s case to substantive protections under state and federal law.
Procedural Defenses
Section titled “Procedural Defenses”The eviction process has strict requirements. A landlord who fails to follow proper procedure may have the case dismissed.
Improper Notice to Vacate
Section titled “Improper Notice to Vacate”Louisiana law requires at least five days’ notice to vacate before filing an eviction — unless the lease contains a valid waiver. A tenant may defend by showing:
- No notice was given
- Notice was given but was defective (unclear, wrong address, etc.)
- Notice period had not expired when the petition was filed
- The lease waiver relied upon is unenforceable
Defective Service
Section titled “Defective Service”The tenant must receive proper notice of the eviction hearing. Defenses include:
- Service was not made at all
- Service was made improperly (wrong person, wrong address)
- Service was not made in accordance with statutory requirements
- The constable’s return does not show proper service
Landlord Failed to Prove Case
Section titled “Landlord Failed to Prove Case”Even if the tenant does not appear, the landlord must still prove entitlement to eviction. The tenant may show:
- The landlord cannot prove a valid lease existed
- The alleged violation did not occur
- Rent was actually paid before the petition was filed
Substantive Defenses
Section titled “Substantive Defenses”Beyond procedure, Louisiana law provides several substantive protections for tenants.
Repair and Deduct
Section titled “Repair and Deduct”Louisiana Civil Code article 2694 allows a tenant to make necessary repairs and deduct the cost from rent when the landlord fails to maintain the property. This remedy is a valid defense to eviction for nonpayment if:
- The property needed repair not caused by the tenant
- The tenant notified the landlord in writing
- The landlord was given reasonable time to repair
- The landlord failed to make the repair
- The tenant made the repair at reasonable cost
- The tenant properly deducted the amount from rent
Important limitations:
- The repair is required to be necessary — not merely cosmetic
- The cost is required to be reasonable — not inflated
- The tenant is required to have proof (receipts, photos, written notice)
- The deduction cannot exceed the repair cost
A tenant who deducts rent for repairs without following this procedure may face eviction for nonpayment.
Reduction of Rent for Defects
Section titled “Reduction of Rent for Defects”If a defect diminishes the property’s usefulness, the tenant may be entitled to a reduction in rent proportional to the diminution. This is different from repair and deduct — here the tenant seeks to pay less because the property is worth less, not to offset repair costs.
The landlord is responsible for repairs necessary to maintain the property in suitable condition, except for deterioration from the tenant’s fault or normal wear.
Landlord’s Breach of Warranty
Section titled “Landlord’s Breach of Warranty”Louisiana Civil Code article 2682 establishes the landlord’s warranty of peaceful possession. If the landlord substantially breaches this warranty — making the property uninhabitable or interfering with the tenant’s use — the tenant may be relieved of the obligation to pay rent.
Examples of substantial breach:
- Failure to provide essential services (water, heat, electricity where promised)
- Failure to make repairs that render the property uninhabitable
- Harassment or interference with the tenant’s peaceful enjoyment
- Permitting dangerous conditions to persist
Waiver by Acceptance of Rent
Section titled “Waiver by Acceptance of Rent”If a landlord accepts rent after becoming aware of a lease violation, the landlord may have waived the right to evict for that violation. The acceptance is required to be knowing — if the landlord did not know about the violation when accepting rent, there is no waiver.
Similarly, accepting rent after serving notice to vacate may waive the eviction, creating a new rental period through tacit reconduction.
Retaliatory Eviction
Section titled “Retaliatory Eviction”While Louisiana does not have a specific anti-retaliation statute like some states, tenants may argue that an eviction is retaliatory when it follows protected activity such as:
- Complaining to code enforcement about habitability issues
- Reporting the landlord to health or safety authorities
- Exercising legal rights under the lease
- Organizing with other tenants
Evidence of retaliation includes:
- Close timing between protected activity and eviction notice
- Landlord statements suggesting retaliation
- Pattern of no prior complaints followed by immediate eviction after tenant action
- Selective enforcement against complaining tenants
Fair Housing Act Defenses
Section titled “Fair Housing Act Defenses”Federal and state fair housing laws prohibit housing discrimination based on protected characteristics. A tenant may defend against eviction by showing it is discriminatory.
Protected Classes (Federal)
Section titled “Protected Classes (Federal)”The Fair Housing Act (42 U.S.C. § 3604) prohibits discrimination based on:
- Race
- Color
- National origin
- Religion
- Sex (including sexual orientation and gender identity)
- Familial status (families with children)
- Disability
Evidence of Discrimination
Section titled “Evidence of Discrimination”A tenant claiming discriminatory eviction may show:
- Landlord statements revealing discriminatory intent
- Pattern of evicting tenants of a particular group
- Different treatment of similarly situated tenants
- Eviction shortly after protected status became known (e.g., after having a child, disclosing a disability)
Reasonable Accommodation
Section titled “Reasonable Accommodation”Disabled tenants are entitled to reasonable accommodations — modifications to rules or policies that allow them equal enjoyment of the property. An eviction for violation of a rule that was required to be modified as an accommodation may be defended on this basis.
Payment Before Judgment
Section titled “Payment Before Judgment”In some circumstances, a tenant who pays all rent due and costs before judgment may avoid eviction. However, this is not an absolute right — it depends on the grounds for eviction and the court’s discretion.
For nonpayment cases, prompt payment may cure the default. For other lease violations, payment alone will not cure the breach.
Presenting Defenses
Section titled “Presenting Defenses”A tenant wishing to raise defenses may:
Answer the Rule
Section titled “Answer the Rule”File a written answer before the hearing date. While oral defenses may be raised at trial, a written answer preserves rights and ensures the court considers all defenses.
Gather Evidence
Section titled “Gather Evidence”- Photographs of property conditions
- Copies of written communications with landlord
- Receipts for repairs made
- Proof of rent payments
- Witness statements
- Code enforcement records
Appear at the Hearing
Section titled “Appear at the Hearing”Failure to appear typically results in default judgment. Even with a valid defense, the court is unable to consider it if the tenant is not present.
Request a Continuance
Section titled “Request a Continuance”If more time is needed to gather evidence or prepare, a continuance may be requested before the hearing date.
Appealing an Eviction Judgment
Section titled “Appealing an Eviction Judgment”If the tenant loses at trial, an appeal may be filed. However, the appeal does not automatically stop the eviction. To obtain a suspensive appeal — one that delays the eviction while the appeal is pending — the tenant must:
- Have answered the rule under oath with an affirmative defense entitling retention of possession
- Apply for appeal and file the appeal bond within twenty-four hours of judgment
For more information, see Eviction Appeals.
Tenant Considerations
Section titled “Tenant Considerations”- Appearing at the eviction hearing is critical
- Raising all defenses — procedural and substantive — is necessary
- Documenting everything (photos, receipts, written communications) is recommended
- Repair and deduct procedures must be followed strictly
- Paying back rent may cure nonpayment but not other violations
Landlord Considerations
Section titled “Landlord Considerations”- Following all notice and procedural requirements carefully is essential
- Documenting lease violations before seeking eviction is recommended
- Consistent enforcement across all tenants is advisable
- Accepting rent after notice may waive the eviction
- Fair Housing Act violations can result in significant liability
Related Topics
Section titled “Related Topics”- Eviction Proceedings — The eviction process
- Nonpayment of Rent — Eviction for unpaid rent
- Lease Violations — Other grounds for eviction
- Wrongful Eviction — Illegal lockouts
- Security Deposits — Deposit disputes
- Eviction Appeals — Appeal procedures