Here in Louisiana, just as in many jurisdictions, there are certain rights or privileges which are bestowed on certain types of individuals or entities. These privileges are not effective until the person or entity decides to exercise those rights. A common example that we blog about here is the, Statement of Claim and Privilege, a Louisiana lien. The subject matter of this post refers to another privilege, the Lessors Privilege.
The Lessors Privilege is found in the Louisiana Code of Civil Procedure under the “special proceedings” book and the “provisional remedies” code, La C.C.P. 3571. It is also found in the Louisiana Civil Code under the section Lessors Security Rights, La C.C. 2707.
I in layman terms the Civil Code lays out the laws and rights allowed to persons. Whereby the Code of Civil Procedure is the method of steps that a person needs to accomplish in order to properly exercise those code rights.
The Lessors Privilege is defined as:
“To secure the payment of rent and other obligations arising from the lease of an immovable, the lessor has a privilege on the lessee’s movables that are found in or upon the leased property.” La C.C. 2707.
This means that if a lessee (tenant) has not paid rent or any other obligation under the lease, the lessor (landlord) has the power under the law to seize the tenants property, by using the Sheriff or Constable, and hold it until the landlord can get a judgment against the tenant.
The Power of Sequestration
Saying that the landlord has a privilege over the tenants things is one thing, but carrying this out in the real world is difficult. Therefore the law uses a tool called Sequestration. If the landlord thinks its within the power of the tenant to get rid of the property he can file a writ of sequestration with the court and have the sheriff seize the property of the tenant who owes back rent.
La. C.C.P. 3571 reads:
“When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.”
La C.C.P. 3572 goes a step further and allows for Sequestration based on the lessors privilege before the rent is due! This is extremely powerful and a good way to get that tenant to pay up before vacating the premises. Most writs of sequestration require some type of security deposit, but the lessor’s privilege is exempt from this requirement.
Of course the tenant has rights too but these must be enforced after the property has been sequestered. Tenant can get its property back by posting a security deposit in lieu of its property under seizure.
How Is All This Accomplished?
All of these rights and privileges are great but unless you know how to put them into action, they are meaningless. A good landlord / tenant attorney will be able to walk you through these steps. This procedure is complicated and landlords should always consult an attorney when making such bold moves.
Nevertheless, the Cliff Notes version of how to do this goes like this… First, the landlord need to file an eviction proceeding. This is a summary proceeding under Louisiana law and can be accomplished fairly quickly, in a few weeks. An eviction proceeding is the subject of another blog post. Once the eviction order or judgment has been granted and back rent is owed, then the landlord need to file an ordinary law suit to claim its lessors privilege.
Second, the lawsuit is an ordinary proceeding whereby it will not be expedited. The lawsuit needs to contain a sworn statement from the landlord that rent is due and how much. From there it needs to assert the Lessor’s privilege and use a Writ of Sequestration to seize the property of the tenant.
Third, once suit is filed and it contains a Writ of Sequestration with the clerk of court, the sheriff or constable will get the Writ and set up a time with the landlord to go to the property and take inventory of the tenants property. Here in New Orleans, the landlord can be named “keeper” and “mover” of the property therefore it can pay to have the property moved and stored to save costs. If not then the sheriff or constable will do this, many times a high price.
Finally, the landlord and tenant proceed with the lawsuit all the way until a trial can be had. Once a judgment is rendered in favor of the landlord, the property will then be sold at an auction. The proceeds from the auction will go to pay the costs and then to the judgment of the landlord. Any extra proceeds after these parties are paid, will go back to the tenant.
All of these steps can take a while. This process can take weeks, months or even years depending on how much is at dispute and how much the tenants fights the suit.
Overall, this is a very powerful process and savvy landlords will use this process to their advantage to claim the lessors privilege. This can also be a costly process, but a properly written lease can provide for the repayment of attorney fees and costs from the proceeds of any collection attempts. At the end of the day, the law needs to have teeth. The use of sequestration and eviction are ways that the law has teeth.