Representing Tenants in the Aftermath of a Natural Disaster

By Christopher Kerrigan, 2021 Equal Justice Works Disaster Resilience Program Lead Fellow Christopher is hosted by Southeast Louisiana Legal Services.

As a native Californian, I’ve experienced my share of earthquakes and wildfires. Still, nothing prepared me for the difficulty of practicing tenant law in Southeast Louisiana after Hurricane Ida.

When disaster strikes, tenant lawyers like me must first take care of ourselves and our loved ones; this means taking disaster preparation seriously. As soon as we are safe, we are thrust into action on behalf of our clients, helping them navigate the plethora of legal housing issues that arise in the aftermath.

After a natural disaster, communication with clients is paramount. If possible, tenant lawyers should prepare to secure client files safely for working on the road or in remote locations.  We must take the time to reach our clients to ensure they can make informed legal decisions. Below are some common issues that my host organization dealt with after Hurricane Ida, including some practical tips for assisting tenants with each case.

Rent Obligation after a Hurricane

Many are surprised to learn this, but despite the magnitude of Hurricane Ida, tenants were still required to pay timely rent in the aftermath.

In Louisiana, a hurricane is considered an “Act of God.” In most cases, this requires the tenant to tender rent unless the tenant’s home is “substantially impaired.” If substantially impaired, a tenant might be able to argue that they owe less rent or dissolve the lease. Unfortunately, “substantially impaired,” a legal term of art, is not defined under Louisiana law. Still, if the damage to the unit prevents the tenant from accessing or using a portion of the home, such as a kitchen or bedroom, we argue that a tenant is entitled to a reduction in rent in accordance with the value of their loss.

In most cases, we advise our clients to pay rent, but we also consult with them to learn the extent of damage to their homes. In the most severe cases, we can assist the client with contacting the landlord and negotiating a resolution, such as dissolving the lease or reducing the tenant’s rent. If the landlord is unwilling to negotiate a reduction in rent, a tenant can then sue their landlord and ask the court to do so.

Simply withholding a portion of the rent puts the tenant at risk of a landlord seeking eviction for nonpayment of rent, so tenants should practice caution and consult with an attorney before doing so. Fortunately, If the landlord pursues an eviction against a tenant for nonpayment of rent, the tenant may argue that their home was “substantially impaired” as a defense against eviction.

Evictions

Under Louisiana law, a landlord cannot evict a tenant without filing an eviction and going to court… unless a tenant abandons the property.

Thankfully, the Governor of Louisiana delayed all legal deadlines for 30 days after Hurricane Ida, which effectively meant the landlord could not proceed with new or ongoing evictions until after the deadline. The suspension of deadlines allowed tenants and their legal advocates crucial breathing room to resolve disputes with landlords short of evictions.

Unfortunately, not every Justice of the Peace in Louisiana halted evictions proceedings per the Governor’s orders. The best way to prevent an eviction in violation of the Governor’s mandate is to make sure the court knows about it.

To protect against claims that tenants abandoned the premises, tenant lawyers usually advise clients to contact their landlords and share a written record expressing that they are not abandoning their units.

Repairs and Habitability Issues

After a natural disaster, contractors and builders are often booked up through no fault of the landlord. However, landlords must maintain the premises in livable condition and make necessary repairs. Tenant lawyers advise their clients to notify their landlord immediately by text or email of repairs needed due to storm damage.

The Repair and Deduct Law in Louisiana allows tenants to make the repairs themselves (or hire someone else) if the repair is deemed “necessary.” The tenant must notify the landlord in writing of the need for the repair and wait a reasonable amount of time before repairing themselves. Once completed, the tenant can deduct the repair cost, including materials and labor, from the next month’s rent. If a landlord is unresponsive, a tenant may use the refusal as grounds to dissolve the lease or utilize the state’s Repair and Deduct Law.

If a tenant must make use of the repair and deduct option, they should consult with lawyer before doing so. Lawyers can use their experience and judgment to advise the client of what repairs a court would likely find “necessary” and ensure the client provides the proper written notice.

Assisting Tenants with FEMA Claims

Tenants who have to evacuate or have personal property damage due to a disaster may be eligible for rental assistance and other aid through the Federal Emergency Management Agency (FEMA). Recouping the expenses incurred during a disaster can be a lifeline for a tenant on a limited income.

At my host organization, we advise our clients to file a claim with FEMA and help them navigate the process. We also encourage clients to document the damages to the home by taking pictures after the storm so we can ideally compare them to previous photos.

FEMA has established community centers throughout Louisiana for people to file claims in person if needed. Sometimes, the most powerful way to assist our clients is to notify them that applications are available.

The Equal Justice Works Disaster Resilience Program is committed to ensuring that all disaster survivors have an equitable recovery and are resilient for the future. For more information about the program, please visit here.

The Disaster Resilience Program is funded by the Bigglesworth Family Foundation, California Community Foundation Wildfire Relief Fund, Carnegie Corporation of New York, the Center for Disaster Philanthropy, W.K. Kellogg Foundation, and individual contributions.