Author: Patrick Murphree

Until August 2015, Louisiana landlords could make the summoning of the police or acts of domestic violence on the premises cause for eviction.[1] Domestic violence victims were thus forced to choose between summoning help and losing their homes.[2] In a laudable attempt to remedy this situation, the Louisiana legislature passed a law restricting the ability of landlords to evict victims as a result of their abusers’ actions.[3] Nevertheless, the final act abandoned the promise of the original bill, leaving too many Louisianans without adequate protection of their housing rights in the aftermath of domestic violence. By prioritizing the needs of landlords over those of domestic violence survivors, the legislature values the economic interests of property holders more than the safety of victims.

The Original Bill

Senate Bill 174, sponsored by Senator Sharon Broome of Baton Rouge, sought to address the impossible place in which restrictive lease provisions place domestic violence victims.[4] Under the provisions of the bill, landlords who owned more than three single-family homes or who leased units in structures with more than four units could no longer impose penalties for summing police in emergencies.[5] Additionally, landlords could not refuse to enter into a rental agreement with an otherwise qualified applicant on the basis of domestic violence history, nor could a landlord terminate a lease, fail to renew a lease, or evict a tenant on the basis of a domestic violence incident if the tenant or a member of the tenant’s family was the victim.[6]

The bill granted victims of domestic violence the right to early termination and the right to bifurcate the lease (i.e., remove themselves from the lease but allow other residents of the home other than the abuser to assume the remainder of the lease).[7] To avail herself of these rights, a victim would have had to notify the landlord of her wish to do so and then provide documentation of the abuse within thirty days.[8] This documentation could include a police report, a temporary restraining order, or a certification by a physician, a mental health professional, or a representative of a licensed shelter.[9] If a landlord violated any of these provision, a tenant could bring an action within two years for injunctive relief, actual and punitive damages, court costs, and attorney fees.[10]

The Pale Imitation Passed

The enacted law retains the prohibition on penalties for summoning the police and even extends the protection to allow summoning police in the aftermath of a domestic violence incident, even if there was no ongoing emergency.[11] In all other respects, however, the bill signed by Governor Jindal[12] severely undermined its purported protections.

First, the final version raised the standard of proof required of victims. To obtain relief for a failure to enter into a lease due to a history of domestic violence, a victim must show that the landlord was motivated solely by the domestic violence history,[13] an extremely high bar for any plaintiff. Moreover, this protection is unavailable to a tenant who has previously been evicted by the landlord for any reason, [14] which seemingly includes a prior eviction for a domestic violence disturbance. Additionally, the documentation required to prove domestic violence must be either a temporary restraining order or a certification by a Licensed Clinical Social Worker or a Master of Social Work employed by a certified shelter.[15] By refusing to allow police reports or physician reports to testify to the presence of abuse, the enacted legislation requires already traumatized victims to either flee to a shelter or expose themselves to the court in order to obtain protection. Moreover, the law now requires that a victim provide this documentation before the date of application, termination, or nonrenewal of the lease, or before the judgment or order of eviction.[16] Given that evictions can be effected in as little as three days in Louisiana,[17] this provision forces traumatized victims to pursue documentation immediately, even if medical or safety needs are more pressing.

As with the original bill, a landlord may not terminate a lease, fail to renew a lease, or evict a tenant due to a domestic violence incident.[18] However, the legislature crafted an exception that unfairly makes victims responsible for their abusers’ decisions.[19] If an additional domestic violence disturbance “pose[s] a direct threat to the safety or peaceable possession of the premises by the lessee or other residents,” then a landlord may evict a victim even if she is not responsible and did not consent to the offender’s presence on the premises.[20]

Not content with limiting victims’ abilities to seek protection of the law, the final version also protects lessors from liability if a lessor evicts a domestic violence victim who has not provided the required documentation.[21] Although the law allows an exception if there is only a single incident of domestic violence, there has been no other breach of the lease, and documentation is eventually provided before the judgment or order of eviction,[22] this exception relies upon the pernicious model victim theory.[23] The exception envisions a perfect victim who has complied with the lease to date, who suffers abuse once, and who then immediately seeks protection, ignoring the reality for many victims that abuse often goes on for years before they are able to leave.[24] Moreover, out of a misplaced concern that the law could impose regulatory requirements on essentially amateur landlords, the bill limits those landlords covered by the law to ones who lease premises in buildings with six or more dwellings, leaving victims in shotgun houses and mobile homes unprotected.[25]

Finally, the law limits the available relief. Bifurcation is no longer allowed, so the only way for a domestic violence victim to move is early termination of the lease.[26] Thus, victims may be forced to choose between leaving for their own safety and jeopardizing the housing of other household members not involved in the domestic violence. Moreover, the law shortens the prescriptive period to one year and limits relief to injunctive relief only,[27] thereby placing on battered and often poor women the burden of paying an attorney to vindicate their rights.[28] Additionally, the law denies relief if a victim or a member of the victim’s household “knowingly voluntarily permitted offender access” to the premises after seeking protection under this provision.[29] Not only does this unfairly make the victim responsible for the acts of other household members, it also stands in an uneasy relation to the power of the court to order temporary access for an offender to collect personal belongings.[30]

The Challenge

Notably, the original bill neither prevented landlords from evicting tenants who refused to pay rent,[31] nor stopped them from holding lessees liable when they or their invitees damaged the property.[32] If an abuser criminally damages property, a landlord can involve law enforcement.[33] Landlords are thus amply protected by existing law; domestic violence victims are not. The Louisiana legislature should take the opportunity in the upcoming session to revisit this law, restore the protections envisioned by the original bill, and privilege the health, safety, and social welfare of victims over the financial interests of landlords.

-Patrick Murphree

  1. See Emily Lane, Miss Louisiana USA, An Advocate Against Domestic Violence, Tells Senate Panel Her Story of Survival, NOLA.com (April 28, 2015, 10:37 PM), http://www.nola.com/politics/index.ssf/2015/04/miss_louisiana_usa_domestic_vi.html.
  2. Id.; see also Gustavo Velasquez, Survivors of Domestic Violence Need Fair Housing, Not Eviction, U.S. Dep’t of Hous. & Urb. Dev.: The HUDdle (Oct. 31, 2014), http://blog.hud.gov/index.php/2014/10/31/survivors-domestic-violence-fair-housing-eviction/ (“No woman should have to choose between calling for help and keeping her home.”).
  3. Act of July 1, 2015, 2015 La. Sess. Law Serv. 1472 (codified at La. Stat. Ann. § 9:3261.1 (Supp. 2016)).
  4. S.B. 174, 2015 Leg., Reg. Sess. (La. 2015) (original).
  5. Id. § 1(A), (C). Thus, the bill excluded “amateur” landlords such as owners of a shotgun double who live in one side and lease the other.
  6. Id. § 1(D).
  7. Id. § 1(F).
  8. Id. § 1(E).
  9. Id. § 1(B)(4)-(5).
  10. Id. § 1(I).
  11. La. Stat. Ann. § 9:3261.1(C) (Supp. 2016).
  12. Act of July 1, 2015, 2015 La. Sess. Law Serv. 1472 (codified at La. Stat. Ann. § 9:3261.1 (Supp. 2016)).
  13. La. Stat. Ann. § 9:3261.1(D)(1)(a) (Supp. 2016).
  14. Id. § 9:3261.1(D)(1)(a).
  15. Id. § 9:3261.1(B)(3).
  16. Id. § 9:3261.1(D)(2).
  17. To evict a tenant, a landlord must provide at least five days notice unless this notice period is waived in the contract of lease. La. Code Civ. Proc. Ann. art. 4701 (1998). Once the notice period has elapsed, the landlord can obtain an order of eviction in three days. La. Code Civ. Proc. Ann. art. 4732 (Supp. 2016).
  18. La. Stat. Ann. § 9:3261.1(D)(1)(b) (Supp. 2016).
  19. Id. § 9:3261.1(D)(1)(b). Domestic violence victims, by definition, cannot control the violence and abuse directed at them. See Bette J. Garlow, Comm. on Domestic Violence, Am. Bar Ass’n, A Guide for Employers: Domestic Violence in the Workplace 12 (1999).
  20. La. Stat. Ann. § 9:3261.1(D)(1)(b).
  21. Id. § 9:3261.1(D)(3)(a).
  22. Id. § 9:3261.1(D)(3)(b).
  23. See, e.g., Elizabeth L. MacDowell, Theorizing from Particularity: Perpetrators and Intersectional Theory on Domestic Violence, 16 J. Gender, Race, & Just. 531, 542-46 (2013) (discussing the model of the “perfect victim” who is passive, dependent, and does not fight back).
  24. See Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence, and Agency, in The Public Nature of Private Violence 59, 74 (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994) (“[A] woman may continue the relationship because of uncertainty about other options or her ability to subsist or care for dependents, because of depression and dislocation that come with intimate loss and harm, or because she is afraid that leaving will trigger lethal danger . . . . [S]urvival is her primary concern; resistance . . . will only involve flight when it seems either possible or safer than staying.”).
  25. La. Stat. Ann. § 9:3261.1(A) (Supp. 2016). More disturbingly, the law excludes buildings of up to ten units if the landlord lives on the premises, apparently privileging a landlord’s residential peace over a victim’s life. Id.
  26. Id. § 9:3261.1(F).
  27. Id. § 9:3261.1(I).
  28. Poor women are more likely to be victims of domestic violence than more affluent women. Nat’l Inst. Of Justice, U.S. Dep’t of Justice, When Violence Hits Home: How Economics and Neighborhood Play a Role 2-3 (2004), available at https://www.ncjrs.gov/pdffiles1/nij/205004.pdf. Poor women are also more likely to rent their homes. See America’s Rental Housing – Meeting Challenges, Building on Opportunities, Joint Ctr. for Hous. Stud. 17 (2011), http://www.jchs.harvard.edu/sites/jchs.harvard.edu/files/ahr2011-3-demographics.pdf.
  29. La. Stat. Ann. § 9:3261.1(K) (Supp. 2016).
  30. See, e.g., Cazes v. Pertuit, 03-842, p. 4 (La. App. 5 Cir. 12/9/03); 864 So.2d 705, 708 (holding that police officers are not liable under the Fourth Amendment when they provide “assistance in the recovery of personal items [from the former marital home] . . . with police supervision, as required by Louisiana law”).
  31. La. Civ. Code. Ann. art. 2704 (2005).
  32. Id. art. 2687.
  33. In addition to physical violence upon the persons of their victims, abusers may use property damage to frighten their victims. See Vera E. Mouradain, Abuse in Intimate Relationships: Defining the Multiple Dimensions and Terms, Nat’l Violence Against Women Prevention Res. Ctr., https://mainweb-v.musc.edu/vawprevention/research/defining.shtml (last visited Aug. 14, 2015). Such damage may be prosecuted as criminal mischief, La. Stat. Ann. § 14:59(A)(1) (2016), or simple criminal damage to property, id. § 14:56(A). Serious damage that might threaten human life is prosecutable as aggravated criminal damage to property. Id. §14:55(A).