Belts and Suspenders for Landlords, but the Tenant Can Still Cause the Pants to Fall

In a recent case decided by the Louisiana Court of Appeals for the Fifth Circuit, which has jurisdiction over Jefferson Parish, Louisiana, a landlord put into its lease all of the proper provisions to relieve the landlord from liability for injuries inside the leased premises, but those provisions still could not prevent the tenant from having her day in court to try to impose liability on the landlord.

Faciane v. Golden Key Division Limited Partnership

In Faciane v. Golden Key Division Limited Partnership (Case No. 17-CA-636), Golden Key Division Limited Partnership (“Landlord”) was the landlord of a residential apartment complex. Kim Faciane (“Tenant”) rented one of the units in that complex, and was injured one evening when sheetrock fell from the apartment’s ceiling due to a leak in the roof of the building. She sued Landlord on account of her injuries.

The lease (“Lease”) between Landlord and Tenant tried to protect Landlord from liability using both “belts” and “suspenders” – two independent provisions that attempted to relieve the Landlord from liability for injuries occurring in or around the leased premises. All landlords should make sure that their leases contain both of these protections.

First, the lease contained a waiver by Tenant of the warranties that would otherwise apply in a Louisiana lease. In Louisiana, a landlord owes to a tenant, under Louisiana Civil Code Articles 2696 and 2697, warranties that the leased premises are suitable for their intended purposes and are free of vices or defects that prevent its use for such purposes, even if those vices or defects arise after delivery of the leased premises. However, these warranties can be waived, under Louisiana Civil Code Article 2699, by a lease provision that is clear and unambiguous. The Lease between Landlord and Tenant did contain language that was effective under Article 2699 to waive these warranties.

However, Article 2699 provides that an otherwise valid waiver is ineffective (a) with respect to vices or defects that the tenant does not know about but that the landlord knows or should have known about, (b) if the issue at hand is due to the intentional or gross fault of the landlord, or (c) in a residential or consumer lease, if the vices or defects seriously affect health or safety.

Landlords, take note. The tenant’s waiver of warranties cannot protect you in the above three circumstances.

Louisiana law allows landlord a second way to insulate themselves from liability. Louisiana Revised Statute 9:3221 allows a lease to include a provision whereby the tenant assumes responsibility for the condition of the leased premises. Pursuant to such a provision, the landlord is not liable for injury caused by any defect in the leased premises, except if the landlord knew or should have known about the defect and failed to remedy it within a reasonable time.

Louisiana Revised Statute 9:3221 trumps the warranties under the Civil Code discussed above. Even if a lease does not contain a waiver pursuant to Article 2699, an assumption of responsibility under Revised Statue 9:3221 will relieve the landlord from liability for the condition of the leased premises, even a breach of warranty under Articles 2696 and 2697, unless landlord knew or should have known of the defect and failed to remedy it within a reasonable time.

The Catch – Exculpation Doesn’t Apply to Injuries Resulting From Defects in Common Areas

However, there is a catch. The exculpation under Louisiana Revised Statue 9:3221 applies only to defects in the leased premises themselves, and not to injuries resulting from defects in common areas or common accessories, such as stairwells. This is understandable. It would be quite a stretch for a tenant to assume responsibility for a defect in a portion of the building that is outside of the leased premises and serves the building as a whole.

Such was the case for Tenant. The court ruled that Tenant’s case could not be dismissed by summary judgment and would proceed to trial. The court held that the alleged defect in the roof of the building was an alleged defect in a common accessory, not the leased premises themselves, and therefore the assumption of responsibility by Tenant under Louisiana Revised Statue 9:3221 did not apply.

Then, turning to the Tenant’s waiver of the Civil Code warranties, the court held that the lease in question was a residential lease and that an alleged defect in a solid, shared roof covering the entire apartment complex affected “health and safety,” and therefore could not be waived by Tenant under Article 2699.

In this particular case, Landlord had contractually done everything that it could do to relieve itself from liability. It had used both the “belt” of a waiver of the Civil Code warranties under Article 2699 and the “suspenders” of Louisiana Revised Statue 9:3221. Nevertheless, Tenant will still get her day in court to try to pull the Landlord’s pants down. If, on the facts, a defect in the roof is found to have existed, the “belt” will not hold because that defect affects “health or safety” under a residential lease, and the “suspenders” will not hold because the defect exists outside of the leased premises themselves.