This August 14, 2016 US Coast Guard handout photo shows Coast Guard personel bringing in a boat to evacuate residents from floodwaters in Baton Rouge, Louisiana. Emergency crews in flood-devastated Louisiana have rescued more than 20,000 people after catastrophic inundations that left at least five dead, news reports said August 15. As many as 10,000 people are living in shelters after a weekend of torrential rains that has prompted the federal government to declare a disaster, according to Louisiana governor John Bel Edwards. / AFP PHOTO / US Coast Guard / Petty Officer 3rd Class Brandon GILES / RESTRICTED TO EDITORIAL USE - MANDATORY CREDIT "AFP PHOTO / US COAST GUARD / Petty Officer 3rd Class Brandon Giles" - NO MARKETING - NO ADVERTISING CAMPAIGNS - DISTRIBUTED AS A SERVICE TO CLIENTS PETTY OFFICER 3RD CLASS BRANDON /AFP/Getty Images

By Elisabeth Q. Prescott

The recent flooding of the Baton Rouge and surrounding communities has ravaged property, devastated lives, and impacted businesses.  Much of the legal discussion surrounding the flooding in Louisiana will inevitably involve the ins and outs of flood insurance and FEMA assistance.  However, there are other legal implications of the floods that need some consideration, such as the rights and obligations of landlords and tenants in light of the damage and devastation.

Whether a landlord or tenant, critical at this stage of the game is your knowing what Louisiana law provides by default, what your lease contract provides and where your lease is silent.  The following are key points to keep in mind.

Under default Louisiana law, a Louisiana landlord has the obligation to maintain the leased premise in a suitable condition for the purpose for which it was leased. La. Civil Code art. 2682.  Landlords must maintain the property by making all necessary repairs, and tenants must allow the Landlord to make all necessary repairs that cannot be postponed until the end of the lease.  La. Civil Code arts. 2691 and 2693.

Where damage to the leased premises is so significant that the premises are considered totally destroyed, as is likely the case in many of the present instances, default law provides that the lease terminates by operation of law (i.e., without the need for judicial intervention), with neither party owing damages to the other.  La. Civil Code art. 2714; see also Comment (d) to article 2714.  If the leased premises are only partially destroyed, the tenant may be entitled to diminution of rent until such time as the landlord can complete the necessary repairs or dissolution of lease, whichever is more appropriate under the circumstances.”  La. Civil Code art. 2715.

Landlords and tenants must bear in mind that the foregoing are default provisions.  Parties to a lease are free to negotiate the specific terms of their lease contracts, and it is important to note that many leases contain specific provisions relating to the rights and obligations of the parties in the context of partial or complete destruction of and repairs to the leased premises.  Louisiana case law has addressed article 2714’s provision that a lease terminates by operation of law in light of complete destruction of the leased premises and found that parties to a lease remain free to contract around the default law and, in so doing, prevent such automatic termination.  See, Comment (e) to La. Civil Code art. 2714 citing, Cerniglia v. Napoli, 517 So.2d 1209 (La.App. 4 Cir. 1987).

Important Tips to Consider:

  1. Read your lease and know your rights and obligations;
  2. In the aftermath of destruction to the leased premises, the landlord and tenant should communicate early, openly and clearly about the lease provisions and the parties’ respective intentions;
  3. The landlord and tenant should discuss the condition of the property and, if possible and so long as the premises are structurally and environmentally sound, landlord should attempt to provide tenant access to the leased premises to assess damage to and salvage the tenant’s movables. Where such is not possible, it is wise for the landlord to document his attempts to communicate with the tenant and to endeavor as best possible to document damage to the tenant’s movables so as to assist with tenant’s preservation of any insurance claims.
  4. It may go without saying but tenants should ensure their landlord is aware of the damage to the leased premises and, as best possible, landlord should attempt to account for the post-evacuation location of its tenant to ensure proper lines of communication regarding the lease and leased premises remain open.
  5. Landlords who did not have flood insurance or who may be under-insured should consider whether they may qualify for a Small Business Association loan for property or economic loss.