EVICTION PROCEEDINGS IN LOUISIANA

By: Donald H. Knecht, Jr.

What is an eviction?

Eviction is the process of expelling a person and his or her belongings from the premises owned by another person. The person to be evicted is called the "occupant,” and is defined as "any person occupying immovable property by permission or accommodation of the owner.” La. Civ. Code Ann. art. 4704.

Eviction is most commonly seen where a landlord has to evict a tenant, usually for non-payment of rent. However, this is also the process that must be used to formally remove someone who has established a residence on the premises of another, even for an unwelcome houseguest that has stayed just a bit too long.

Who can evict an unlawful occupant?

The owner of the property or a person lawfully leasing the property has the right to file for an eviction of anyone who is not also lawfully on the property. The "owner” of the premises is defined to include a lessee who is in lawful possession of the property. La. Code. Civ. Proc. Ann. art. 4704.

When can you evict an unlawful occupant?

You can evict someone at any time, if they are not lawfully on the property. If they have not established a residence on the property, then a call to the police can usually have them removed, with a possible warning against criminal trespassing. However, after they have established a residence on the property, form eviction proceedings need to be filed. If the eviction is of a residential or commercial tenant, then the tenant can be evicted only if in breach of their residential or commercial contract.

How do I evict an unlawful occupant? What is the procedure?

The procedure to evict an occupant must be conducted in the courts of the State of Louisiana. There is no self-help option in Louisiana. The procedure to evict an occupant is found in Articles 4701-4725 of the Louisiana Code of Civil Procedure. These articles, and a step by step guide to a successful eviction, are summarized as follows:

(1)   Serve notice on the unlawful occupant that they are ordered to vacate the premises. The notice must give the occupant not less than five days from the date of its delivery to vacate the premises. (Often, a written lease agreement has a provision that waives the requirement of this notice, in which case the property owner can institute immediate eviction proceedings in a court of competent jurisdiction.) La. Code Civ. Proc. Ann. arts. 4701-4702.

(2)   In the case where the occupant is not home or available when notice is served, it is acceptable to attach the notice of eviction on the door to the premises, and this shall have the same effect as if the notice to vacate was delivered in person. La. Code Civ. Proc. Ann. art. 4703.

(3)   After notice has been given, the owner can take possession of the premises if it is obvious that the premises have been vacated. La. Code Civ. Proc. Ann. art. 4731.

(4)   If the occupant fails to comply with the notice to vacate the owner may file in court for a judicial eviction. This takes the form of a rule to show cause why possession of the property should not be delivered to the owner. This rule must state all the reasons why the eviction of the occupant is sought. La. Code Civ. Proc. Ann. art. 4731.

(5)   The court shall hear the rule not less than three days after service of notice of the rule, at which time the court shall try the rule and hear any defenses to the eviction that the occupant wants to raise. La. Code Civ. Proc. Ann. art. 4732.

(6)   If the court finds in favor of the owner, or if the occupant fails to appear, then the court shall render an immediate judgment of eviction ordering the premises surrendered to the owner. This judgment shall be effective for 90 days. La. Code Civ. Proc. Ann. art. 4732.

(7)   If the unlawful occupant does not comply and vacate the premises within twenty-four hours, the court shall issue a warrant to the sheriff, constable, or marshal to deliver the possession of the premises to the owner. La. Code. Civ. Proc. Ann. art. 4733. The sheriff, constable or marshal has the power to remove all occupants and their belongings, furniture, etc., from the premises, and can break open any locked areas as necessary to accomplish these duties. La. Code Civ. Proc. Ann. art. 4734.

What happens if the unlawful occupant appeals the eviction?

State law allows the occupant to file an appeal of the judgment of eviction. If the occupant does so, the appeal is not effective unless they have appeared at the hearing, plead their case, raised a defense that would allow him to retain possession, and provided a bond for the appeal. This must be done within the twenty-four hour time period immediately following the judgment. The amount of this bond shall be set in an amount to protect the owner against all damage that he might sustain because of the appeal. La. Code Civ. Proc. Ann. art. 4735. Practically speaking, this rarely occurs unless the matter is a contested commercial lease.

Where do you file for an eviction?

In Louisiana, most evictions are handled by the Justice of the Peace Courts. These courts have jurisdiction over suits by owners for the eviction of occupants of all residential premises. In addition, Justice of the Peace Courts have jurisdiction over the eviction of occupants of commercial premises where the rent does not exceed $5,000.00 per month. La. Code Civ. Proc. Ann. art. 4912. Otherwise, the eviction proceeding must be brought in the parish or district court where the premises are located.