2006 Louisiana Laws - RS 9:3391 — Leased premises; obligations regarding property; presumption of intent to abandon; applicability to certain emergencies and disasters

CHAPTER 5.  REMOVAL AND PRESERVATION OF PROPERTY

DURING EMERGENCIES AND DISASTERS

§3391.  Leased premises; obligations regarding property; presumption of intent to abandon; applicability to certain emergencies and disasters

A.  The legislature finds that Hurricanes Katrina and Rita created a statewide emergency disrupting and forcing the closure of certain courts and public offices, and further resulting in the displacement of courts, offices, clients, and counsel.  This Section is enacted for the benefit and protection of the state as a whole and its citizens, and to prevent injustice, inequity, and undue hardship to persons who were prevented by these hurricanes from timely access to courts and offices in the exercise of their legal rights, including the filing of documents and pleadings as authorized or required by law.  This Section is intended to provide additional remedies relative to the removal and preservation of a lessee's property not otherwise provided by law.

B.   This Section  applies to leased premises in the areas directly affected by Hurricanes Katrina and Rita.

C.(1)  The lessor of immovable property may enter the leased premises without the permission of the lessee to inspect the premises and to make necessary repairs.  The lessor may remove the lessee's property from the premises.  The lessor shall preserve the salvageable property and may dispose of any property that is unsalvageable.

(2)  The lessor shall keep written records of contacts with insurance agents and other investigators and of decisions on retrieval, preservation, and removal of movable property.

(3)  The landlord¹ shall salvage water-damaged books, heirlooms, photographs, and documents.

(4)  The lessor may take the following into consideration in prioritizing the salvageability of the other movable property:

(a)  Immediate susceptibility to damage.

(b)  Rarity.

(c)  Monetary value.

(d)  Whether the property is on loan.

(e)  Ability to move the object particularly without introducing the risk of additional damage.

(f)  Degree of apparent damage.

(g)  Degree of susceptibility over the time period of the salvage operation.

(5)  If undamaged movable property is in an unstable environment or area that is not secure, the lessor shall move the undamaged movable property to any available storage site closest in proximity to the leased premises.

(6)  The lessor shall make a reasonable effort to notify the lessee at least ten days before preserving or disposing of the lessee's property.  The notice shall include information that the lessee's unsalvageable property will be discarded, and if salvageable property is to be preserved, a statement to that effect, including information as to the location where the property will be stored.

(7)  The cost of removing all of the property from the premises and preserving the salvageable property shall be at the lessee's expense, unless otherwise covered by the lessor's insurance; however, the cost of moving and preserving the property while necessary repairs are being made shall be deducted from the rent.  The lessor shall have a privilege over the preserved property for any such costs paid by the lessor.  The lessor shall store the property at any available storage site closest in proximity to the leased premises.  If the lessor is entitled to be paid under an insurance policy or  has received or is entitled to receive funds from FEMA or other source  for loss of rental income attributable to the leased premises, the lessee shall be given credit for the amounts paid to the lessor.

(8)  The provisions of this Subsection are not applicable to any lessee who continues to occupy the premises or who has attempted to regain occupancy or remove his property within thirty days from the date that the affected area has been declared available for inspection by the local governing authority pursuant to the provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act, R.S. 29:721 et seq.

D.(1)  The lessor shall not move the movable property without documenting its condition.  In order to document the condition of the movable property, the lessor may do either of the following:

(a)  Use a camera or video camera to record conditions of the movable and immovable property and may make notes and voice recordings to accompany photographs or video.

(b)  Cause an inventory to be made of the property.

(2)  The failure of the lessor to take photographs or videotape the property shall not in any manner shift the burden to the lessor to prove the condition of or  any other fact related to the property.  If the lessor causes an inventory to be made of the property, the inventory shall be made in the presence of a notary and two competent witnesses and the notary shall prepare a proces verbal in the manner provided by Code of Civil Procedure Article 3133.  The proces verbal shall be admissible in any relevant court proceeding between the lessor and lessee as prima facie evidence of all matter shown therein.  The photographs and videotapes may be admissible as provided in the Code of Evidence.

E.(1)  If the lessor has provided the lessee with emergency contact information, the intent of a lessee to abandon the leased premises is presumed if the lessee has failed to remain current on his rent and has failed to inform the lessor of his intention to remain in the leased premises within  thirty days from the date that the affected area has been declared available for inspection by the local governing authority pursuant to the provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act, R.S. 29:721 et seq.  In order to invoke the presumption of abandonment, the lessor shall make a reasonable effort to contact the lessee.

(2)  The lessee may rebut the presumption by showing any of the following:

(a)  That the lessor failed to provide any contact information.

(b)  That the lessee contacted the lessor and informed him of his intention to return to the premises, provided that the lessor has been available for contact by the lessee or present at the leased premises.

(c)  That  he is current on his rent.

(3)  This presumption of abandonment shall also apply to movable property located on the leased premises from August 26, 2005, until June 30, 2006.

F.  Unless otherwise agreed by the parties, in the event of the total destruction of the immovable property, the lease is terminated, and the lessor is bound to reimburse the rent paid by the lessee since the time of the total destruction of the property, except that the lessor may deduct the amounts expended for the removal and preservation of the lessee's property on the leased premises, unless otherwise covered by insurance.

G.  The lessor shall not be liable to the lessee for any damage or loss for removing property of the lessee that has been abandoned by the lessee or for disposing of the lessee's unsalvageable property provided that the lessor has made a reasonable effort to notify the lessee, has been available for contact by the lessee, and has complied with the provisions of this Section.  The lessor shall not be liable to the lessee for any damage or loss for removing the property in order to make necessary repairs to the leased premises, unless the damage or loss is caused by the fault of the lessor.

H.  As used in this Section:

(1)  "Reasonable effort" includes but is not limited to notifying the lessee by telephone or other electronic communications devices, transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, or other electronic means, or publishing the notice in the official journal of the parish or municipality where the premises are located or notice by certified mail if the lessee's address is ascertainable through disaster services' websites, such as those maintained by the American Red Cross or FEMA, or posting a notice on the door of the lease premises if the lessee has not provided emergency contact information or cannot be reached through any other reasonable methods including those included in this Paragraph.

(2)  "Unsalvageable property" means property that has been damaged as a result of Hurricane Katrina or Rita, or both, and can no longer be used for its intended purpose, or if the cost of cleaning, repairing, or preserving the property is greater than its fair market value.

I.  The provisions of this Section shall not affect the laws governing eviction proceedings.

J.  The provisions of this Section shall terminate on June 30, 2006.

K.  The provisions of this Section shall not apply to the lease or furnishing of sleeping rooms, cottages, or cabins by hotels or motels.

Acts 2005, 1st Ex. Sess., No. 56, §1, eff. Dec. 6, 2005.

¹As appears in enrolled bill.  Should be "lessor".