Posts Tagged ‘Louisiana Supreme Court’

Eviction – Get Out Of My Property!

Here in Louisiana as is the case in many states there is no “self-help” with regard to Landlords evicting an unworthy, lease breaching tenant. Evictions can be a prickly subject and even more difficult when you have a tenant who will simply not vacate the property. When it comes to commercial property and leases, there are very strict rules that must be followed in order to have a tenant kicked out.

Eviction proceedings are ones that are considered summary proceedings here in Louisiana. These are ones that can be conducted much faster than an ordinary proceeding. See La C.C.P. art. 2591. Unfortunately this is not always the case and the Judge may use his discretion to retard the progress of the action.

Depending on the type of lease that Landlord and Tenant will determine how the lease may be terminated and eviction proceeding started. Termination of a lease is governed by La C.C.P. art. 4701 et seq. A helpful aspect for a Landlord to put into his lease, is that La C.C.P. art. 4701 notice is waived, therefore the Landlord will be able to institute eviction proceedings immediately upon default or termination of the lease.

The law has specific definitions for all the parties involved with a lease and eviction. These definitions are spelled out in the code at La C.C.P. art 4704. Terms such as Lease, Lessee, Lessor, Occupant, Owner and Premises are literally spelled out by the code. This is helpful to determine who the parties are.

If the Landlord is awarded possession of the premises by a court, and the tenant does not remove itself from the premises, then a Warrant will be issued to have the sheriff remove the tenant from the premises. This is a very serious penalty. See La C.C.P. arts 4731 and 4733 for more on this procedure.

Landlord / Tenant relationships can be very frictional at times. Most of the time the parties get along and there are not issues. In the small majority of the time where there are disputes, the lease will control. Further, the eviction proceeding is where the parties will have their day in court. I have dealt with a number of lease disputes here recently, and none are easy by the time they get to me. Its important to have a good working lease and take into account the rules to get the tenant out.

Posted in:     Collections, Common Topics, Disputes, Litigation, Louisiana  /  Tags: , , , , , ,   /   Leave a comment

Louisiana Supreme Court Decides Ebinger Case Proving The Law Can Be Unfair

On July 1, 2011, the Supreme Court of Louisiana decided a case, Charles Ebinger, et ux. v. Venus Construction Corporation, et al., that focused on the interpretation of La. R.S. 9:2772. This Louisiana statute has established a specific time limit of five years to bring an action against residential building contractors.  Here, the Supreme Court reversed the decision of the Third Circuit Court of Appeals, making it very clear where the law stands regarding this issue.

Let’s get our feet wet with the facts of the case to better understand the real issues and implications of this case.

The Ebinger family hired Venus Construction to build their home. Venus then hired Post-Tension Slabs, Inc. to supply the foundation. In 1997, the Ebingers moved into their home and obtained a certificate of occupancy. Six years later, the Ebingers decided to sue Venus for certain construction defects, like cracks in the wall, brick, and floors.

Before the case between the Ebingers and Venus was decided with finality by the court, Venus filed a “third-party demand” in 2006 seeking indemnification from Post-Tension. In other words, because Venus believed Post-Tension was partially responsible for these defects it was being sued for, Venus attempted to bring Post-Tension into the suit to share the potential liability if the court did end up ruling against it.

The real question that this case presents is two-fold: when does the time frame to sue under La. 9:2772 begin and does one always have the right to bring a cause of action against a residential building contractor within that time frame?

This court determined that the time frame for Venus’ third-party indemnification action against Post-Tension began when the Ebingers obtained a certificate of occupancy in 1997.

Which brings me to the second fold of this two-fold issue: one does not always have the right to a cause of action under this statute. Your right must be “vested.” Whether a right to take action is vested is contingent on the outcome of the original claim itself. At the time Venus’ attempted the third-party action against Post-Tension, the outcome of the Ebinger suit was not settled. And by the time that suit was settled, the five-year time period had passed. So, tough luck for Venus, as they are basically punished because the Louisiana court system can be so slow…

Two bottom lines here:

The five-year time period for actions involving construction defects by residential building contractors always begins when the building is first occupied, i.e. when the certificate of occupancy is obtained; but

Just because the time period starts to run does not mean that you, as a contractor being sued for defects, have a right to bring a third-party contractor into the same suit for indemnification; your right is established if and when the original case is settled against you.
Remembering these nuances as a residential building contractor can make all the difference when it comes to how much liability you will bear if you are ever sued for construction defects.

Posted in:     Litigation, Louisiana  /  Tags: , , , , ,   /   Leave a comment
Posted in:     Construction Contracts, Louisiana  /  Tags: , , , ,   /   Leave a comment