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2016 Case Summaries Save from Citrix (00769312).Docx SALES AND LEASES 2016 Marie A. Moore Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, 28th Floor New Orleans, Louisiana 70112 No significant new laws were enacted this year, so our recent developments summary will focus on the case law. I. LEASE A. No Oral Lease Created Ranson v. Cooper, 2016-0029 (La. App. 1 Cir. 9/19/16), 2016 WL 5173506. Prospective tenant for mobile home sent Landlord $850 then $425. When the tenant rejected the proposed mobile home and another one that the landlord offered, the landlord refused to refund these amounts. The trial court held that because the text messages between the parties did not show clearly that a lease had actually been created, no lease was created. The $850 was an advance deposit in return for the landlord taking the trailer off the market, and the $425 was advance rent that should be returned to the tenant. The landlord appealed, asserted that an oral lease had been created and it was entitled to retain the $425 and to recover additional amounts of lost rent. The appellate court recognized that a lease may be made orally, but that when there is no meeting of the minds, there is no contract. Whether a lease has been created is a question of fact, and it upheld the trial court’s determination that no oral lease had been created. B. Landlord’s Remedies KM, Inc. v. Weil Cleaners, Inc., 50,209 (La. App. 2 Cir. 1/13/16), 185 So.3d 112. In January 2001, KM leased a unit in Claiborne Square Shopping Center to Weil for a 5-year term. The lease stated that rent was due on the 1st of the month and was late after the 10th of the month. Weil experienced water leakage in the space, and this leakage became worse after KM removed an awning. On August 22, 2014, KM tacked a 5-day notice to vacate no the door of the space. After this notice to vacate, Weil sent KM a payment on August 26, 2014, but KM did not open the certified letter containing the rent. KM filed a rule for eviction on September 2, 2014. KM’s president testified that in 2014, rent was late 6 of the 8 months, and she did not receive the July rent until July 29, 2014. Weil’s owner testified that he withheld the rent to leverage KM to fix the leakage situation and that he had spent money to stop the water from coming in the door but had not asked for reimbursement. At the time of trial, Weil had tendered payment in full for all past-due rent and for the upcoming month’s rent. The trial court dismissed KM’s eviction because KM’s acceptance of late payments waived KM’s right to evict Weil without prior, unequivocal notice that late payments would not be accepted in the future. The appellate court agreed, explaining that (i) it is inequitable to allow a lessor to lull a tenant into a false sense of security by accepting late payments over a period of time, then without demand for timely payment, to cancel the lease for nonpayment of rent, and (ii) dissolution of a lease for nonpayment of rent is subject to judicial control, and under La. Civil Code art. 2013, in an action involving judicial dissolution, the court can grant an additional time for payment. Richard v. Khalif, 2015-685 (La. App. 3 Cir 2/3/16), 185 So.3d 259. Residential landlord filed suit to evict a tenant that had paid most of the rent under a “lease to own” agreement. Nora Richard asked the landlord Khalif to lease land to her son, Bob, to use as a residence, but Khalif refused because Bob had a criminal record. Then in February 2010, Khalif and Nora signed a lease with an option to purchase. Nora provided $500 down and agreed to pay $150 a month for 36 months, with an option to purchase for $500 at the end of the term. Bob then purchased a mobile home for the site, spent a substantial sum to prepare the land and install a sewer system, then moved into the property with his fiancé and children in August 2010. The evidence indicated that Khalif knew that Bob and his family were living on the property since Khalif lived nearby. Nora made the monthly payments until July 2012, then shortly before the expiration of the term, Khalif began rejecting payments and served Nora with an eviction notice. Nora sought specific performance ordering Khalif to execute the sale because all payments had been made. The trial and appellate courts rejected Nora’s claim for equitable relief because she did not have clean hands. The lease prohibited sublease or granting the use of the premises to another person, and Louisiana law permits a landlord to obtain dissolution for prohibited use of the premises – Nora had violated the use provision of the lease, so Khalid was entitled to dissolution. Also, Nora had acted in bad faith because she signed the lease and permitted Bob to occupy the property after Khalif had specifically refused to enter into a lease with Bob because he had a criminal record. The court explained, “harm to a party who has acted in bad faith cannot thereafter be remedied by principles of equity.” 185 So.3d at 263. Van Mol v. Beasley, 2015-869 (La. App. 3 Cir. 2/3/16); 184 So.3d 280. Beasley leased property from Van Mol for 24 months to house his employee, Bamer, and his family. The Lease stated that the term was from October 1, 2012 to October 1, 2014, but the lease also contained a provision stating that the lessor had to receive 60 days’ notice before move out. When Bamer moved out with 60 days prior notice in July 2013 and Van Mol sued Beasley for rent for the rest of the original term, Beasely claimed that this provision had given him the right to terminate early with 60 days’ notice, and that Van Mol had accepted this termination when she inspected the property and accepted the keys from Bamer on July 29, 2013. Van Mol asserted that the 60- day move-out notice provision simply stated a condition that the tenant had to satisfy to receive the return of its deposit. The trial and appellate courts agreed with Van Mol. The court held that Van Mol was entitled to rent for the remaining year of the term because she had not re-leased the property – Van Mol claimed that she had cleaned it and was holding it for future employees of Beasley. Notwithstanding the cases holding that a landlord must mitigate its damages, the trial and appellate courts observed that the lease expressly provided the landlord with the default remedies of declaring the remaining rent installments immediately due and payable or declaring the lease terminated – and they held that Van Mol had elected to declare the rent due rather than terminating as permitted by the lease: “Since she did not choose to terminate the lease, Mrs. Van Mol could not re-lease the property without also being in breach of the lease. Mrs. Van Mol was not required to breach the lease in order to mitigate damages.” 184 So.3d at 287. Inherent in this holding is a finding that landlord did not deprive Beasley of possession since the property was always available for occupancy by his employees – perhaps there would have been a different 2 result had the tenant leased for its own occupancy and had the tenant made clear that it was terminating when it gave the move-out notice. McCoy v. Housing Authority of New Orleans, 2016 WL 4592162 (E.D. La. 2016). This is a claim by McCoy that she was wrongfully evicted from a Section 8 apartment in a housing complex owned by Abundance Association and managed by IRMC – but McCoy’s suit was against HANO. The complex owner and manager had based her eviction on its claim that she violated the complex’s one-strike policy by being publicly intoxicated and involved in a fight on the complex grounds. The Fourth Circuit had reversed the eviction when it found that the criminal charges against McCoy had been dismissed. McCoy never lost possession of the apartment and HANO’s rent assistance to McCoy was never terminated. McCoy also sued the police officer that arrested her and HANO for an alleged conspiracy to arrest her unlawfully and to violate her civil and due process rights. The court granted summary judgment in favor of HANO. Romero v. Cola, 2015-1058 (La. App. 3 Cir. 5/25/16), 193 So.3d 418. Plaintiff Landlord sued Tenants (the Colas) for past due rent, but the trial court held that Landlord had not proved the amount of the rent. Landlord testified that the rent, which was negotiate by her deceased husband, was $600 per month, and she produced requests for admission stating that the rent was $600 per month that had not been responded to by the Tenants (who were unrepresented). The appellate court recognized that these requests were deemed admitted on the $600 per month rent amount because there was no response. However, it held that the unanswered requests were not enough to prove the aggregate amount of past-due rent, and Landlord’s books and testimony were confusing on this point. The court then reconciled what it could and awarded the Landlord the amount that was justified by written receipt books produced by the Landlord showing deficiencies in the payments.
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