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Subject: Does theft of lessor's personal property by unknown third party allow claim against lessee's security deposit?
Question: I signed a residential lease which included thirteen items of personal property as part of the rent. At the start of the lease, there were other items of personal property left in the property that were unlisted. At the end of the lease, the property manager did a walk-through and didn't note any problems with the property beyond normal wear and tear. Two weeks after the final walk-through, the owner says a painting listed in lease is missing. The property manager suggests the owner should withhold the value of the painting from the security deposit. The owner provided a picture of a painting that I've never seen before. There was a different picture in the property I thought the lease referred to (as did the property manager during the walk-through, apparently). The property manager has a picture of the missing painting in the property but won't say date it was taken other than prior to my taking possession of the property. I suggested the owner should file a police report and an insurance claim. I offered to make a statement to the police. Nothing in the lease says I am responsible for theft by someone else. CC 2687 seems not to apply since neither me nor my guests damaged (or stole) the property. Am I right that owner has no claim against my security deposits? The lease actually provides for a "security deposit", two "additional deposit[s]" (for gate remote transmitters), and a "refundable pet deposit." I'm hoping my deposits will be returned within the allowable 30 days. If not, and I have to make a second demand and/or file suit, would LA Rev Stat 9:3252 apply to each deposit separately ($200 for each un-returned deposit) or collectively ($200 total)?

Answer: (August, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

These are all good questions. I don't have the answers to most of them without conducting some legal research. My sense is that Ls. R.S. 9:3252 only applies to the total deposit rather than to each deposit separately, but I could be wrong about that. I also don't like the Landlord's claim to withhold your deposit based on some undated photograph of a painting he alleges was in the apartment. If a painting (and nothing more) was listed in the personal property items and a "painting" remains, I think the Landlord loses, but that will be for a judge to decide, as it more or less is a lying contest and he will have to decide who is telling the truth. If the landlord withholds your deposits after the 30 days and provides you written evidence of the basis for the withholding is the missing painting, I would sue him and let the chips fall where they may. Note that attorneys fees may also be recovered, but they will not likely be equal to what you will actually have to spend on an attorney, so it would be best to work it out if you can. Also, make sure you have good evidence of the 30 day period (certified letter demanding the return of the deposit and no or unsatisfactory response by landlord within 30 days after date on return receipt card).

Subject: roommate dispute
Question: My daughter recently signed a lease on an 4 BR apartment, with three roommates. At the time of the signing, there was a verbal agreement between the roommates as to who would get which room, and my daughter was assigned the only room she was shown, downstairs. Because of her new job, my daughter was the last one due to move into the apartment. One of the roommates has decided that she wants my daughter's room instead of the room she originally chose and this girl has already moved her belongings into the room and refuses to leave. My daughter wants to get out the lease rather then fight with the roommate.

Answer: (August, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

The problem is that "a signature to an obligation is not an ornament." If your daughter signed the lease, she has obligated herself to all of the terms and conditions of hte lease both to her roommates and more importantly, the landlord. If she wants to get out of the lease, she will need to get the landlord and the roommates to agree. Both of those tasks will be difficult, if not impossible. Now I suppose she could threaten to move elsewhere if she doesn't get the room that was promised to her, but that means she will open herself up to a lawsuit by either the roommates or the landlord if the rent is short. Of course the other roommates face the risk of being sued as well and having the lease terminated if they don't pay the rent each month. It is highly doubtful the landlord will only sue your daughter if the full rent isn't paid. He may likely tell the other roommates that if he doesn't get the full month's rent, he is going to throw them all out. The lesson here is to do a better job in the future in selecting roommates. My suspicion is that if your daughter threatens not to move in and/or pay any more rent, the other two roommates may gang up on the troublesome one and make her move into the room that was agreed upon, but there is no guarantee that will work. I would really have to review the entire lease to give you definitive advice, however.

Subject: trying to move
Question: My boyfriend and I are living in a apartment complex where we pay 700 monthly in rent. He recently received his section8 voucher. We have found somewhere to move, however the land lord wants is to pay the full month of September rent. However there is no written lease and he has given the landlord a 30 day notice. Do he have to pay the full rent or any if we don't be there the entire mont?

Answer: (August, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

If this is a month-to-month lease (an oral lease is normally month-to month), and you are vacating on August 31, and you gave the proper written notice on or before ten days before the end of the month (August 21), the lease will terminate on August 31, and no rent for September would be due. If you gave written notice in July that you are leaving on August 31, the situation is even stronger. Written notice is important, however. You still have time if you are leaving on August 31. Send the notice by certified mail, so you have evidence of receipt by the landlord, especially if he appears to want to give you trouble about the September rent.

Subject: Third Pary Notice of Seizure - Rental
Question: Two weeks ago I rented a double in Orleans Parish. The Sheriff's office delivered a Third Party Notice of Seizure to both sides of the double on Friday. The notice states the the property is scheduled for sale by the court. The property owner lives in Florida and the local property management said to not worry as the owner is refinancing and this happens. I have a large amount of money tied up in deposits. Does this notice breach the lease by the owner, should I start looking for a new place, do they owe me my deposits? I have a young child and can not risk being without a place to live.

Answer: (July, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

It is not something you can ignore, but it is difficult to advise you wihtout more facts. The notice of seizure is likely because the owner is in default under his current mortgage. He could find a new lender and refinance and everything could work out, but that is far from a certainty. If the current lender does foreclose, it will likely give the lender the right to terminate your lease, but that's not a certainty either. The lender might want to keep you in the property and collect the rent (better to collect rent than have a vacant property). What you might do is try to contact the lender who filed the foreclosure suit and determine what the lender will do if the foreclosure proceeds. If the lender will allow you to remain in the property paying your current rent under the terms of your current lease, that may solve the problem (you would just have a new landlord). If so, that might give you enough confort that you can remain in the property for the duration of your lease whether or not the owner is successful in his refinancing efforts. Whether the notice of seizure is a breach of the current lease in and of itself would require some legal research. The owner owes you a duty of peaceable possession, and the notice could be considered a breach of that duty, but I would need to research that issue before giving you definitive advice. As a practical matter, you want to be careful in doing anything that might cause you to be in default of the lease. You haven't been evicted at this time, so while the notice is a cause for concern, it may not permit you to vacate the property and stop paying the rent.

Subject: roommate
Question: I asked my roommate to move out a few months ago and she agreed to pay me the last months rent plus electric bill as long as i gave her time to leave. I agreed but she never payed me.Her dad called me on the phone and promised he would get me my money.I talked to the landlord and the roommate had already called him to say she was leaving so they took her off the lease.The dad came to pick up belongings but no money was given to me.There were some things left in my apartment by her and now she is wanting them back.I told her she can have them back when i get my money from her.Its been 3 months do i have to give her things back

Answer: (July, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I'm not sure you really need a lawyer here, as this is clearly not worth going to court over. On the other hand, that works both ways (roommate is faced with the same dilemma). I could write a dissertation on her having an oral contract and owing you for the things she agreed to pay, and your likely not having a right to retain her things to pay for those obligations (no self help in Louisiana). As a practical matter, however, you have her things. She really doesn't have any way to get them back short of breaking into the apartment and getting them or using her key if you haven't changed the lock and obtaining them when you aren't home or while you are there and fighting you for them. That's not a particularly pleasant situation for her, although I suppose she could try to involve the police and have them charge you with theft (seems unlikely, but I suppose possible). While I can't really advise you to retain things that don't belong to you, it's possible that playing hard ball with her will get the job done (pay me the agreed sums or learn to live without your stuff). Good luck and hopefully you will choose a more honest roommate next time.

Subject: lease to purchase
Question: Good afternoon. My family and I are in desperate need of assistance. We had a lease/purchase agreement lease expired 4/30/2012. We had been going back in forward trying to purchase receiving preapproval,etc. On 6/1/2012 we were notified via mail owner is no longer interested in contract. we have not signed any documents and paid 05/2012. Attempted to settle w/owner for fees to stay in home until resolved .received email denying on 6/15/2012. the letter we received was 6/30/2012, we have no place to go. We want to fight it because we have put over 20k into the home. Please contact us as as we are running out of time.

Answer: (June, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

Someone is going to have to review the documents you did sign in order to give you any intelligent response on this one. The document you did sign was the lease/purchase agreement. If the option to purchase did in fact expire on April 30, and the contract did not provide for any extension of the option to purchase, you may have very few avenues available to you. That document needs to be reviewed carefully, however, before anyone could advise you on what may be done in your case.

Subject: Separate property debt
Question: My husband inherited property in NO from his father 20 years ago. His siblings also deeded their interests in the NO property to him 10 years ago. He is the sole owner of the property. He also had a mortgage on the property, and was behind in payments and owed more than $60K on property valued at $150K. My name is not on title to the property, I do not live in Louisiana and have not lived with my husband for more than 25 years. My husband passed away 2 months ago, can I be held responsible for this mortgage debt? Isn't this property his separate property?

Answer: (June, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

You are correct that the property he inherited from his father is his separate property. What's not so clear is the classification of the property "deeded" to him by his brother and sister. If they "donated" the property to him, it would be his separate property. On the other hand, if he "purchased" the property from them, and he paid for the property with community funds, the portions of the property he acquired from his siblings could be community property. You would need to have someone review the transfer documents from the siblings. There may also be an issue with the mortgage, depending upon when it was placed on the property (before or after he acquired the interest from the siblings). You may need an attorney to review the documents and advise you further. It sounds like you never divorced, so it is possible you have some exposure here, although if the property is worth a great deal more than the mortgage, it may be unlikely the lender would come after you. The facts are key to determining how to proceed. If the mortgage was placed on the property by the husband alone and you did have an interest in the property, it's also possible that the mortgage is defective. It might be worth your investigating the matter further.

Subject: Buyout my portion of the house
Question: I am 30 years old and currently in dispute with my father and sister (26 years old) over the property we own and they currently live in. I have moved out as of 5 years ago. My mom (his wife) passed away 20 years ago and with La law that means we now own parts or the property: dad-50%, me-25%, sister-25%. They now want to refinance a loan or home line of equity on the house. To do so we all need to sign the documents saying we're financially responsible for the debt. I do not want to sign and become liable. I am absolutely willing and wanting to have them buy my 25% out so I can no longer be tied to the property and any other problems that go with that. When it comes down to it I am actually willing to just GIVE my share to them completely just to get my name away from this. I have no problem being disinherited, out of the will, blacklisted, or whatever else may come with being bought out and cut off. How can I make this happen soon so they don't forge my signature onto the documents they want signed?

Answer: (May, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

Well I wouldn't worry too much about their forging your signature on a loan from a bank, as the bank will need to see a live body and obtain a copy of your driver's license. It would have to be a pretty elaborate scheme for them to pull that off. Still, I frankly don't see why they wouldn't be delighted for you to donate your interest to them. Have you broached that subject with them (i.e. either having them buy you out for a reasonable amount or simply having you donate it to them - I would ask them about buying you out first)? If they agree to either scenario, they will likely need to hire a lawyer to handle the transfer (either sale or donation). You might need to be careful with a donation because if the property is worth too much, you might have gift tax implications. In any event, since they will be getting the property, the cost of the lawyer should be on them at a minimum. My advice would be to discuss this with them and work it out amicably, if possible. Unless they need your credit to make the loan (a different issue entirely), they should be happy to jump at your suggestion. I'm not sure why that would cause you to be disinherited, but there may be more going on here.

Subject: rental lease
Question: What does the mean in a rental lease "this lease whether or not recorded shall be juior to and subordinate to any motage hereafter placed by lessor on the entire property of which leased premises form a part" I had my lease recorded today Would my lease be binding if the house is sold. I'm located in Jefferson louisiana Thank you John

Answer: (May, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

It would be binding on a subsequent buyer of the property, unless that buyer bought at a foreclosure sale. What that provision means is that your lease will be inferior to a current or future lender's mortgage. If the current owner (or future owner) should default on their mortgage, and the lender forecloses, the lender, or a buyer at the foreclosure sale, would buy free and clear of your lease. Recording the lease is the best thing you can do at this point, however, and I would still recommend that you do it.

Subject: Mineral Rights/ Usufruct
Question: My husband's great grandfather donated some property to his son ( my husband's grandfather) in 2002, where he reserved the mineral rights. In 2008, the grandfather then donated the property to my husband, nothing was mentioned about the mineral rights. The grandfather did have usufruct for both himself and his wife for the rest of their lives. Then in 2011 the wife signed a quit claim deed for the property and again nothing about mineral rights was mentioned. Who do you think owns them? The courthouse has all the documents on file but I would like a more definite answer.

Answer: (April, 2012)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

Mineral rights cannot be permanently severed from the surface in Louisiana. There is a ten year prescriptive period. What that means is that the mineral rights will remain in the great grandfather for at least ten years from the date he made the donation in 2002. They would continue to be owned by the great grandfather after the initial ten year period if there was an interruption in the ten year prescriptive period by either drilling or production of oil or gas on the property in question, in which case they would continue to be owned by the great grandfather for a period of ten years after the drilling or production ceased. Prescription can also be interrupted by contract of the parties, but that does not appear to be done in this case.

Subject: Landlord refuses to make timely repairs - can we put our rent in escrow?
Question: We have a landlord who has taken more than 5 weeks to make repairs to a dishwasher, we are on week 3 of a broken outlet in the backyard that provides the only opportunity to provide light in the evening, and now a week old leak in the roof. We have put everything in writing and we get nowhere. We have offered to make the repairs, provide lists of contractors who can do the work, etc. Our lease indicates we cannot make repairs ourselves. We would like to compel the landlord to make these repairs and she consistently tells us when it is scheduled she will let us know - but time keeps marching on. We've requested a list of contractors she has contacted and dates of contact - no response. We have requested reduced rent, no response. How do we go about putting our rent in escrow in Orleans Parish to help motivate her to make these repairs?

Answer: (September, 2011)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I would really have to review the lease in order to give you definitive advice. There is no procedure for putting the rent "in escrow." You are in a tough spot. Normally, if the repairs are necessary and the responsibility of the Landlord (sounds like they are, but again, without reviewing the lease, I really can't give you firm advice), and the Landlord either refuses to make them or delays unreasonably in making them, the Tenant has a right to make the repairs and deduct the cost of the repairs from the rent. That is a precarious position to take because the payment of less than the full rent could be cause for a breach by the Tenant under the lease, and open the Tenant up to penalties under the lease. I normally advise clients that taking that action should be a last resort when all avenues to have the Landlord make the repairs are exhausted. It looks like you may be in that position, but if the lease prohibits the Tenant from making the repairs, it is even more problematic (again, I really would need to review the lease). My best advice is to have an attorney review the lease and then explain your options to you. If the solution of "making the repairs and deducting the cost from the rent" is available to you, I normally advise clients to document everything, which you appear to have done to some extent (written correspondence to and from Landlord, several written bids for the work and choosing the most reasonable bid, and other measures to show this was necessary and a last resort). Then, you may take the chance of making the repairs and deducting the repair cost from the rent. You really need to be sure that all of your ducks are in a row before taking that action. If you decide to go that route, you might want to add one more piece to your arsenal, which would be to send the bids to the Landlord, and explain in your letter that unless the Landlord makes the repairs by a date certain, you will choose the lower bidder, make the repairs and deduct the cost thereof from the next rent payment. That should bring the matter to a head one way or the other.

Subject: Who is responsible for grass-cutting--landlord or tenant?
Question: My landlord refuses to cut the grass at the house that we rent. At first, we were cutting it ourselves, but then our lawnmower broke. For a few weeks, we paid a guy to cut it, because we don't like the lawn to look sloppy, but we really can't afford to keep doing so and we can't afford a new lawnmower. We asked him to deduct the lawncutting cost from our rent. His response was that he keeps the rent low so that his tenants don't bother him (read: use the rent savings to make your own repairs and do your own maintenance). We won't live here much longer, but until we move, is there anything we can do to make him have the grass cut?

Answer: (August, 2011)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

Probably not. Normally, the tenant is responsible for routine mainenance such as cutting the grass unless your lease provides otherwise. I would have to review the lease to provide you with a definitive opinion, however. If the landlord was cutting it for a long enough period of time, you might argue that it bacame part of his obligations under the lease, but that is on pretty flimsy grounds. If you attempt to withhold the grass cutting payments from your rent, you will likely be in breach of the lease for non-payment of the full rent under the lease, and no good will come from that. My advice is to tough it out and make that clear in your next lease (who is responsible for cutting the grass and anything else you expect the landlord to take care of during the term of the lease).

Subject: Burglary at apartment
Question: On August 9, 2011 near 5:35pm, I walked in on a burglar (who happened to be my neighbor) trying to steal some electronics. I got him to leave my apartment at which point I called the police and the burglar was arrested shortly after. This issue is compounded by the fact that the management company had pest control come in earlier in the day to spray, at which point they left the door either open or unlocked, as I specifically remember locking the door before leaving for work. There are obvious safety issues involved with me staying on the premises due to extreme owner negligence, and I need to know what my rights are as far as breaking the lease as well as having the management company find me another unit in their other developments and locking me into the same monthly rent (is this possible?).

Answer: (August, 2011)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

All of this is going to be very difficult to achieve if the situation becomes adversarial. The first thing I would do is talk to the management company and see if they are willing to move you to another apartment without penalty. It doesn't hurt to ask. I don't see how you can hold the management company responsible for a pest company failing to lock your door (almost impossible to prove, by the way, unless the pest guy admits he did that). Breaking a lease without some fault on the part of the Landlord is going to be very tough to do. You might just have to install another lock on the door (if the lease permits you to do that) and tough it out for the balance of the term of the lease. You can then move. If you try to move sooner, you will be the one who has breached the lease and you will be responsible for the consequences of defaulting under the lease, which I suspect will be fairly harsh (pay the rent anyway, attorney's fees, court costs, etc.). I would have to review the lease to provide you with definitive advice, however.

Subject: Landlord Selling Property
Question: I live in Orleans parish and my landlord is selling the property I currently occupy. We have lived at the residence for since March of 2010, and have a written lease that was renewed in writing extending the terms until March of 2012. A few months back, our landlord notified us about the sale and mentioned that if we had any questions, we were welcome to contact the restate agent. About a month of people coming to look at the property went by, but we had still heard very little about the sale. Finally, our landlord contacted us through email to say that the property was under contract. Because she provided very little information other than it was under contract, we followed up with the agent. She informed us that the buyers were a brother and sister and they intended to occupy both the apartments in the duplex, you can imagine our surprise. We informed her that we had a contract through March of 2012, and we intended to honor the terms of it and occupy the property. We have almost every correspondence between all parties involved in writing. We have also notified the relator, the broker, and our landlord, that if they attempt to evict us, we intend to take legal action against them for breaching our contract. Our lease is NOT registered in the public record but the sale is not set to close until the 12 of this month. There is an item in our lease that deals with successors, and it says that the agreement is still binding. First of all, can the new owners evict us for no reason, while we have a contract? What steps do we need to take to further protect ourselves from eviction? Lastly, if the new owners evict us, will we have a case against either them and/or our current landlord? Thank you for your help and I look forward to hearing your answer.

Answer: (August, 2011)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

If you are evicted by the new owner, you would have a cause of action against the prior owner for a violation of the lease contract, unless the lease allowed for a termination of the lease on a sale of the property. The only way to protect yourself from the new owner having a right to evict you is if you record your present lease (an original) in the Conveyance Office of Orleans Parish. The lease will then be binding upon third parties, including the new owner, provided the lease is recorded before the sale to the new owner. Louisiana has a strong public records doctrine. If the lease isn't recorded, it isn't binding on the new owner, even if he has knowledge of it. The only cautionary remark is you really should have a professional review the existing lease to make sure there aren't any provisions in it that could alter this advice, such as a prohibition against recording the lease, termination of the lease on a sale, etc.

Subject: Plant that spread under a fence - neighbor dispute
Question: In my back yard there is a ginger plant near my fence and its growth has traveled under the fence in small part into my neighbor's yard (she considers it undesirable). Am I legally responsible to remove the plant entirely from my yard at my expense? I've searched the city municipal ordinances and cannot find any applicable code or law so far. Any insight would be greatly appreciated! I live in New Orleans, LA.

Answer: (January, 2011)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I don't believe you are required to remove the portion of the plant on your side of the fence. You might offer to remove the part of the plant on her side of the fence (unless this is some gigantic plant, I suspect you could do that with a hedge cutter of some type). If she doesn't like that you could suggest she just cut it back to the fenceline. I'm not sure whether trimming her side of the fence will kill the plan or not, but she isn't required to let it remain on her property if she doesn't want it.

Subject: Predatory Lending
Question: My Mortgage company is stalling me, to execute a sale of my home. Their practice has been so far as losing my faxes and denying me the ability to modify my loan. I rebuilt this house myself after Hurricane Katrina with the understanding that the Mortgage company would re evaluate the loan and organize our new schedule. To our surprise , we found out that the company filed for chapter 11 and forsclosed on our property without the benefit of relief. Then my wife died, May of this year. This is the short of my dilema.

Answer: (September, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

It's hard to respond to this question as the facts are minimal and some what contradictory. I'm not sure what stalling you to execute a sale of your home means. Is the loan current or are you in default? You state that the mortgage company has denied you the ability to modify your loan. The mortgage company is normally under no obligation to allow a modification of your loan. They might do that, but that is normally solely in their discretion. If you didn't get some agreement from the mortgage company that if you rebuilt your home they would restructure your loan and you were in default the entire time, you may have a serious problem. If the mortgage company is in Chapter 11 bankruptcy, you really have problems, as it is now the bankruptcy trustee that makes the decisions, and any prior agreements you had from the mortgage company are likely not binding on the trustee unless they were in writing. If the lender has already foreclosed on your property, I'm not sure what can be done at this point. Again, the facts are so limited, I don't have any idea how to advise you at this point. Consulting a lawyer may help, but if the bank has aleady foreclosed, I don't suspect there will be too much a lawyer can do as the horse has already left the barn.

Subject: Re: quitclaim deed?
Question: My father-n-law lives in Houma LA and is trying to sell his house. His son (my former husband) died two years ago, and at that time he was partial owner of this home. Now that part ownership goes to his daughter (my daughter) and my father-n-law is trying to get her name off the title of his home so he can sell it free and clear. (This is all how he is explaining it to me). There is no animosity between us, and I want to help him, but I am not sure how. I live in California with my daughter and he has asked me to send him a legal document that takes her off the title, essentially. What should I do?

Answer: (September, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I have more questions than answers. How old is your daughter (matters if she is a minor versus 18 years of old or older)? How did your daughter acquire her interest in the property (through estate of your husband, transfer or donation from your late husband to her, some other way)? What consideration is your father-in-law proposing to pay for the transfer of the interest from your daughter to him or is this supposed to be a donation? The answeer to your last question is that your daughter will have to either sign a sale or dnation to your father-in-law in order for her to transfer her interest to him. If she is a minor, then someone will have to sign on behalf of her and that gets more complicated. You likely need to run everything by a lawyer in order to do it correctly. Your father-in-law should be paying for the legal services, especially if you aren't going to be paid for the transfer and you are willing to give it to him.

Subject: What are my options for getting out of said partnership in property?
Question: A few years ago my boyfriend & I bought a house together. He gave me the down payment, I obtained the mortgage. To show good faith I did an act of donation of 50% of title. We've been separated for a little more than a year. He has been living in the house & paying the mortgage while he's been there. He won't agree to sell b/c of the inconvenience it would cause to show. Neither one of us can afford to buy the other out. What are my options? In the meantime I've lived with family & friends b/c I can't obtain new residence as long as I'm financially tied into original property. Thanks in advance.

Answer: (September, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

No good answers here, I'm afraid. You don't have to remain co-owners with him, but the only way to sever the relationship if he won't cooperate is to sue for a partition by licitation. That would result in the court selling the property and splitting the net proceeds between you and your ex (after the mortgage and costs are paid). The problem there is that will be a sale by the sheriff, which may not bring enough to cover the mortgage and the sheriff's costs, let alone your attorney's fees for the exercise. Now if the property has enhanced a lot in value, you might break even, but I doubt that. Your best bet may be to threaten partition if he doesn't sell. Partition is bad for him too, and he may come to his senses and list the property and try to sell it (no guarantees that it will sell even if you list it, but certainly a better chance that you will get a higher price). Only bottom feeders attend sheriff's sales. That's the only way I can think to get you out of this mess. You could explore if there were grounds to annul the donation, but that doesn't seem to be a possibiity based on the facts as you describe them. Option one is to get him to agree to sell, which is a clear number one. It will probably cost you a minimum of several thousand dollars to hire a lawyer and have him handle a partition suit. That will end it one way or the other, and you should be free of the mortgage once the smoke clears, although if the sale doesn't bring enough to pay off the mortgage, one or both of you will have to pay the deficiency. The problem for you there is that you state that only you signed the note secured by the mortgage. In that case the bank may come after you for the entire deficiency, which is another danger for you.

Subject: Usufruct question
Question: My Dad lives in New Orleans, and we his kids live in Indiana. He has two pieces of property that he transferred to us via a quitclaim with a Usufruct agreement. He is currently married to his third wife. His current marriage happened after the signing of the quitclaim for the transfer of the property. My mother is listed on the quitclaim as well as my dad in the usufruct agreement, but not his current wife. My questions are, does or will my dads current wife have any claim on this property or the usufruct agreement, in the event that my dad passes, or is incapacitated? He is currently very ill, and she has power of attorney, but I don't know what type of POA she has. Also, my mother has since remarried, is she in any way connected with this property anymore? Thanks for your help.

Answer: (August, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

It is really impossible to give you definitive advice on these issues without reviewing the quitclaim deeds whereby you acquired your interests in the property and the usufruct was reserved. I am presuming this all occurred in one document. If not, the separate agreement creating the usufruct would also need to be reviewed. There are just too many variables (was the usufruct for life, until remarriage, was it transferrable during the life of the usufructuary, if so, did your dad or mom transfer their usufruct to their current spouse, just to name a few). You will likely need to hire a lawyer to review the documents and then advise you more fully on the questions you are posing.

Subject: home
Question: i have a promissary note with my bulider can they foreclose on my home if i do not pay them.we are haveing a dispute.

Answer: (July, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

The facts are less than crystal clear in this inquiry. It appears as though you signed a note with your builder and have stopped paying on it because of a dispute. If the builder put a mortgage on your property (you would have had to sgn that too), then he would have a right to seek to foreclose on your property based on your being in default under the note. If it is an unsecured note, the contractor would first have to file suit against you and get a judgment. Once that occurred and provided you didn't appeal the judgment, the contractor could have the sheriff seize your house and sell it in orer to satisfy the judgment. My best advice would be to resolve the dispute over what the contractor is owed. If the two of you can agree on a figure, you should then pay whatever amount you and the contractor agree is fair and equitable. After that, you will need to have the contractor cancel the note, or note and mortgage, in the event the contractor put a mortgage on the property.

Subject: home
Question: my bulider did not pay company it got material from due to a dispute over billing so now material company put lien on my home and if bulider do not pay they going to file suit on us.

Answer: (July, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I'm not sure what the question is here. Under Louisiana law, the materialmen do have a right to put a lien on the property if they were not paid for materials delivered to your house and incorporated into your property. You have a right to sue your contractor if you paid him and he then didn't pay the subcontractor, but that won't get the lien removed. If you can't get the contractor to pay, you may have to add your contractor into the suit if the subcontractor sues you. The subcontractor is required to file the suit within one year of his filing the lien.

Subject: Partnership to purchase real estate
Question: My father and his friend is partnering to purchase a residential property. Both are planned to be on title. Is there a standard partnership contract available or does both side need a lawyer to represent their interest in drafting a contract?

Answer: (May, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I don't think they both need lawyers if they are going to be 50/50 partners. I would likely recommend that they form a limited liability company. That gives them the limited liability of a corporation, but has the tax benefits of a partnership (no double taxation issue). There are also less formalities with respect to the operation of an LLC. If the ownership is going to be other than 50/50, one lawyer could still represent both as long as the business deal is worked out (what powers does the majority owner have and on what matters does he require the consent of the minority owner, i.e. borrowing money, selling the property, major repairs, etc.).

Subject: short sale
Question: Myself and 2 partners short sold an investment house in SC last year. We had a soft second on the property as well. Both the loans were with BOC but different divisions. The second was a HEL. BOC removed a lien on the house from the HEL, and indicated they would charge off the debt as a collectable balance. We have not been contacted by them or a collection agency since My question is, do they have a certain amt of time to collect debt? can they come after us years in the future? should we actively seek them out to settle debt? what are the chances they write it off and send us a 1099 for forgiven debt? any special laws apply relative to La? I would be interested in retaining some of your time to answer these questions if necessary

Answer: (March, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I'm going to have to plead ignorance here on a number of things. I'm not sure what the initials BOC or HEL mean. I suspect they stand for some banking institutions or types of loans, but I frankly don't know. Second of all, I don't know the answers to any of the questions you pose without doing some legal research. I'm also not sure if SC stands for South Carolina, why Louisiana law would be involved in this transaction at all, unless you are worried about the loans exceeding the value of the South Carolina property and the lenders coming after you, individually, for any deficiency in a judgment they might obtain against you in South Carolina. I would be happy to sort out some of these facts with you if you care to discuss them further, but there really isn't enough information here for me to give you an intelligent answer. I can be reached at 504-491-2330.

Subject: loan modifications
Question: What is the best advice to give someone interested in loan modifications? I'm currently with BOA with an 6.75% rate. Should I seek an attorney? If so, is there anyone in LA qualified with a success rate in this area? Re-fi is not working for me since my debt ratio is too high. My second job has been thrown into recession, I'm not late on my mortage or missed, just struggling to pay other bills. Any info will be greatly appreciated

Answer: (February, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I don't think an attorney will help you much here. If you can't qualify with a new lender, you are pretty much stuck with the current lender. My best advice is for you to speak with your current lender and see if they will agree to lower your interest rate via a refinancing of the current mortgage, or possibly a re-rate, in which you pay a small fee for them to lower the current interest rate on the existing mortgage. You can't, however, force a lender to change the interest rate of your mortgage. Your hardship problems likely don't mean much to the bank. All they care about is getting paid back. Now an argument could be made that if they lowered your interest rate to the current market rate, which is lower than the 6.75% you are now paying, their chances of getting paid back would improve. The bank would much prefer to have a performing loan as opposed to a non-performing one. In fact their risk factors might improve if they lowered your interest rate. That's the argument I would make with the lender. Now it's possible that if you hired an attorney, he could make that argument with the lender better than you could make it and it might improve your chances of getting the bank to agree to lowering the interest rate in some manner, but that's far from certain. If the bank now envisions that you are a credit risk, they may be doing everything in their power to encourage you to go elsewhere.

Subject: Non-Leasing Tenant
Question: I moved into a three bedroom house in Gentilly July 2008 after the two lease holders moved in that March. The rent is $950 a month. I never signed a leasing agreement and I never had any bills in my name. It was implied that I would pay 1/3 of the rent every month along with contributing to 1/3 of the house hold bills. I told my roommates that I was moving out on the 15th of March and now they say that I owe them $615 because I did not give them 30 days notice. $325 (which is next months rent), $190 (house hold bills), and $100 just because. I am seeking legal consul to make sure that I am only legally responsible for the $190. Lastly I left no damages and even moved out early on Monday March 23, 2009 between 8- 930pm.

Answer: (March, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

There is a short answer and a longer one. You can have oral leases in Louisiana, but the terms of an oral lease are understandably hard to prove. That works both ways. If you never had any understanding about what you would have to pay if you didn't stay as their roommate for the entire term of the lease, I don't see how you would be responsible for any rent after you left the premises. If the household bills are paid in arrears, then you would owe for the bills that accrued while you were living in the apartment, which it seems as though you are willing to pay. One possible problem is the written lease between the other two roommates and the landlord. It may require advanced notice to vacate the premises and require some penalty if you leave before the end of the term. It is doubtful, however, that the main lease would allow vacating the premises prior to the end of the term even with the 30 days notice, however. I'm not sure that the other roommates can get much solace there, especially if they never furnished you a copy of the lease. If they did give you a copy of the main lease, it might be implied that you were somehow subject to its terms, but even that seems to be a stretch. A few things are clear. You are not liable to the main landlord for anything as you didn't sign the main lease. The other roommates are principally responsible for that. It could be argued that you might have been a little more reasonable in letting them know you were going to vacate the premises, but if you gave them two weeks notice, that should have been plenty of time. There is a provision in Louisiana law that states when you have an oral month to month lease, which frankly is all that you had (a month to month sublease), all you are required to do is provide the landlord with 10 days advanced notice prior to the end of the month in order to terminate the lease at the end of the month. You appear to have done that. My advice would be to pay them the $190 for household expenses and tell them that is all you are going to pay. That doesn't mean that they may not decide to file an action against you for more, but they will be on shaky grounds unless you signed some papers you haven't disclosed to me. I would recommend sending them a letter with the check and informing them that you notified them on March 15th that you would be vacating your month to month sublease on March 31, and that you are enclosing your share of the March monthly household expenses, along with the keys to the apartment. I would suggest saving a copy of the letter.

Subject: Tax Sale Redemption Law and Forms
Question: I purchased several tax liens in November of 2007 and one of the property owners has requested a redemption payoff statement. I understand the statutory interest and penalties regarding the original tax sale amount. How do I handle subsequent tax years in which I paid the property taxes due? Do I merely add these amounts to the payoff statement, or am I able to add them then charge the same 5% penalty and 1% monthly interest from the date those additional taxes were paid? I have been unable to find detailed instructions or a sample payoff form on the web and am wondering if such a form template exists. If not, what specific language should the payoff statement contain? Also, I have not received any redemption requests on the remainder of the liens purchased. What is the best route to quiet the titles after the 3 year prescription period, how long such an action might take, and what kind of legal costs per property should I anticipate to obtain clear title?

Answer: (January, 2010)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

There are a lot of questions here and this site really isn't equipped for me to give you full blown answers to all of them, as several of them will require some legal research. It seems fairly obvious that you need to consult an attorney to assist you in a number of areas. How much that will cost will depend upon a variety of factors. You could try to work out a deal on a per property basis regarding a suit to quiet title, but I suspect the estimate will vary depending upon whether or not the suit to quiet title is contested. How much the properties are worth may dictate how much you can spend on an attorney, but it would be very difficult for you to prosecute a suit to quiet title on your own. As far as what you can charge on subsequent taxes you paid, I don't know off the top of my head whether or not the 5% penalty applies to the taxes paid in subsequent years. I am fairly certain you can collect the interest on those subsequent taxes, and I think the 1% per month you quoted above is the amount you would be entitled to receive, beginning at the time the subseqnent tax payment was made.

Subject: Need some help clearing up some records
Question: We bought a condo here in New Orleans in April of 2006, going through the normal processes with the help of a real estate lawyer. I've discovered that the accessor's office records still show the previous owner as the owner of record on my tax bill. The lawyer who helped us in 2006 seems to be no longer in the area and the Title Company was an apparent casualty of Katrina. So I need to talk to someone who can tell me how to correct the records. Thanks for your help.

Answer: (December, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

Provided the original lawyer did his job correctly and recorded your act of sale (deed) in the Conveyance Records of Orleans Parish, it shouldn't be too big a problem to correct the records of the tax assessor. What you would need to to is obtain a certified copy of the sale and furnish that to the assessor. That should have been done at the time of the sale, and it may be just an oversight. More problematic is if the sale was never recorded in the public records, but there isn't any reason to worry about that just yet. Also of some concern is what has happened to the tax bills during the last four years. If you weren't paying them, and the tax bills went to the prior owner (who almost certainly wasn't paying them), you have the issue of whether or not a tax sale occurred and the process you will need to go through to redeem the property. That is something you will want to look into as soon as possible. There is a three year redemption period during which the record title owner can acquire the property back by paying the back taxes, penalties and interest. If the three year period has passed, getting the property back from a tax sale purchaser becomes much more complicated. You definitely need to consult with a lawyer about all of these issues. I believe my contact information accompanies this response, but if not, it is: James R. Morton, 1100 Poydras Street, Suite 2100, New Orleans, Louisiana 70163-2100 - E-mail jmorton@taggartmorton.com; tele: 504-599-8507.

Subject: PROPERTY SERVITUDE
Question: I BOUGHT A HOUSE IN CHALMETTE THAT WAS FLOODED BY KATIRNA. THE PROPERTY HAS A 10 FT SERVITUDE; 5 FEET ON MY SIDE AND 5 FEET ON MY NEIGBOUR SIDE. THE SERVITUDE IS TO BE USED BY THE ELICTRIC COMPANY TO FIX ANY PROBLEMS WITH THEIR UTILITY. THEIR WAS A FENCE AT THE EDGE OF MY NEIGHBOUR PROPERTY THAT MADE THE 10 FT SERVITUDE ON MY SIDE. MY NEIGHBOUR CLEANED HIS PROPERTY LAST MONTH AND TOOK DOWN THE FENCE. MY QUESTION IS, WOULD THERE BE ANY PROBLEM IF I ENCLOSED THE WHOLE SERVITUDE WITH A WOODEN FENCE AND USED IT AS PART OF MY PROPERTY? COUPLE OF MORE COMMENT. I DO NOT KNOW WHO OWNED THE ORIGINAL CHAIN-LINK FENCE, HOWEVER, THE "GOOD" FACE WAS FACING MY PROPERTY, AND THE POLES WERE FACING THE NEIGHBOUR'S. AND, I AM WILLING TO MAKE A GATE IN THE FENCE IN CASE THE ELECTRIC COMPANY WANT TO GET ACCESS TO THE SERVITUDE. THANKS A LOT.

Answer: (November, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

Generally speaking, you don't have any right to fence in property of your neighbor. An exception to that rule would be if the prior fence installed by your neighbor was in place for 30 years, in which case you would have had possession of the entire servitude area unopposed for that length of time and would have acquired ownership of the five foot strip on your neighbor's property by acquisitive prescription. It doesn't sound as though the fence was there for 30 years, however, and even if it was, you might have a problem proving that in court unless you had very good evidence of the length of time the fence was there. Having said that, you do have a right to put a fence on your property line (in the middle of the five foot servitude), with the good side facing your property. I don't know if the electric company has a buried pipeline or overhead lines on the servitude, or if it is in place with respect to some future use of the electric company. It is possible if the fence is intefering with the use of the electric company, the electric company may be able to remove part or all of it in order to perform their services with respect to the servitude, but that is not likely to occur unless you are placing the fence on top of a pipeline. Your other option is to ask the neighbor if you can put a new fence back in the place of the old one. If he says it is okay, you might consider getting him to sign a piece of paper granting you the right to put the fence on the edge of the servitude on his property. It would be best if you had a lawyer assist you in drafting that document in order for it to be effective. It should also be recorded in the conveyance office of the parish in which the property is located in order for it to be binding on third parties.

Subject: tree trimming laws
Question: I have a tree that is huge and healthy and its limbs extend over the property line over a neighbors roof. They want me to trim it and clean their gutters. What is the law in New Olreans on this subject. Please Thanks

Answer: (November, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

In general, you can't encroach on your neighbor's property with a building, fence or portion of a tree. If your neighbor wants to be ugly about it, he could either cut the limbs of the tree that cross over the property line and sue you to pay for the tree service, or simply sue you to have you perform the tree removal service. If you do nothing, and the tree should fall on his house and damage it, you would likely be responsible for the damages the neighbor suffers. I don't know what the answer is about cleaning the gutters, however. I suspect that is not your responsibility. If you are going to go ahead and trim the tree, I would stop there. I doubt he will take you to court on cleaning the gutters, as it is highly unlikely that the only leaves or other debris in the neighbor's gutters come from your tree. The only other solution is to work something out amicably with the neighbor by which he would allow the tree to remain. If the tree is healthy and the only real issue is leaves in his gutters, you might try to compromise the situation by getting him to agree (in writing) to allow the tree branches to remain as long as the tree stays healthy. Under that scenario, you might offer to clean his gutters in exchange for his allowing the branches to remain. You could do nothing, but if he takes you to court, which is the only way he can get you to remove the encroachment, you may have to hire a lawyer to defend the suit, and wind up cutting down the branches anyway. If cutting down the branches that encroach on the neighbor's property will kill the tree, you may have to have the entire tree removed. The solution here, which doesn't do you a whole lot of good, is not to plant a tree too close to your property line where it will eventually grow to create this type of problem in the future.

Subject: Legal right to real estate
Question: My grandparents own a home and have been issues with the mortgage company. The home is pending a workout and foreclosure at the same time. However, do to Katrina Damage (the mortgage company is holding repair funds) they are now deciding to possibly sell the home. However, the home was purchased with the intent to give the home to my mother who has resided there and paid the mortgage during the time they owned it, does she have any legal right to the home since she paid the mortgage. No legal document was signed stated it was to go to her. AS far as the workout the president of the mortgage company is trying to correct errors in the loan while the formner mortgage company posted the home for sale at auction. The home owners are in their 80's and feel that they are being picked on due to their age but noone will fix the problem. Any assistance is helpful.

Answer: (November, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

There are no good answers here unless you are able to work something out with the current mortgage company to prevent the foreclosure. If the mortgage company isn't paid back the money they loaned for your grandparents to buy the house in the first place, they have a right to foreclose on the house, and have it sold at a public auction to try to collect the money the bank is owed. The fact that your mother was living there for a time and made the mortgage payments while she was living there doesn't really help the situation, although I suspect it prevented the foreclosure while she was living there and the mortgage payments were being made. My best advice is to contact the mortgage company and and find out what it would take to prevent the foreclosure. You can then decide whether to pay it or not. If your mother is going to take over the loan, she would need to have your grandparents transfer ownership of the property to her at the same time. Otherwise she may be throwing good money after bad. It doesn't sound like the property is worth more than the mortgage balance, although that is not clear from your question, so it shouldn't be a problem for your grandparents to transfer the property to her. I don't have enough facts to advise you on the repair costs the mortgage company is holding.

Subject: Acquring full title to property purchased thru tax sale
Question: I purchased a piece of property at Tax sale back in 2007. It was blighted and the 18 month stipulated time for original owner to reclaim has expired. I need to file suit to acquire the full title to land. New Orleans Redevelopment Assoc.(NORA) has expressed interest in the property, however, I am not interested in their offer. I would like to complete this transaction and take full ownership of the said property. I am trying to find a legal representative that will file the necessary paperwork. Any help would be appreciated.

Answer: (November, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I believe what may be necessary is to file a suit to quiet title. It likely would require service on the prior owner so that you have eliminated any possibility of the prior owner claiming he wasn't given proper notice of the original tax sale. The one thing you don't want to occur is for you to take possession of the property, spend a bunch of money fixing it up, and then have the prior owner claim that there was a technical defect in the original tax sale. Other than that small, but important, detail, the suit to quiet title should be fairly straight forward. Selling the property to NORA would likely cause you to avoid that hassle, as you could put that burden on them, but if they aren't offering enough money, then I can understand your wanting to clear the title once and for all. I don't have a good feel as I'm typing this as to how long the suit would take to complete once it is filed. I suspect it would depend upon how successful you were in serving the prior owner. If he could not be located, that would delay matters as there are other steps you would need to take to provide proper notice to him of this matter. That can be accomplished, but it would cause the suit to drag out longer.

Subject: Told To Leave
Question: I share a house for which there is no lease with a couple. I moved in with the male six months ago when they broke up and he was looking for someone to share the rent with. He had been living in the house for some time, but without a lease. The only terms that he and I had agreed to were how much the rent would be. Three months later they got back together and we have all lived there and split the rent accordingly. He is out of state right now (and will be until Dec.) and called me the other night to say that he wants me to leave so that they can be alone again. I told him that this was very inconvenient for me and seeing as though there were simply no grounds, that I had no intentions of leaving. I also told him to take it with the landlord if there is even anything that he could do about it legally. They are friends, so that is just what he did. The landlord is out of the country at present (and will be until Dec.) so he informed me by email that I was at the mercy of the other fellow as he is the "leaseholder". As I have previously stated, there is no lease for this house; however, I am told by another tenant on the property that they would not hesitate to forge one. Even if this were done, I could not be held liable to it, correct? And it could certainly make no provision to selectively remove respectable tenants at will, right? I have always paid my rent with no problems, of course done so this month, and committed no offenses of any kind during my time a renter of this property. After the landlord's email, another came from my house mate stating that the remainder of the month would be sufficient time for me to find another place to live. His hope is no doubt that I will be gone upon his return. I have not spoken to the house mate since our phone conversation, and have not responded to the landlord. Once they discover that I intend to defend my rights in this matter; I suspect that the landlord will try some other approach to removing me. So with all that having been said: What is it that either of us can do? Do I have any "tenant's rights" to defend? And does the law allow for his prerogative to go unchecked?

Answer: (November, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I'm afraid I don't have very good news for you. Your situation is tenuous at best, and that may be putting too positive a spin on it. While there doesn't appear to be a written lease of the property, the landlord and your male half of the couple may have an "oral" lease, which is perfectly legal in Louisiana. You could argue that you have an oral lease too. The problem is proof of any oral lease. Both parties would have to agree it exists, which the landlord is telling you he is willing to admit is the case with your roommate, not you. As you have stated in your question, you don't have any lease, oral or written, with the landlord. At best you have an oral sublease with the other tenant. Again, even proving that is a problem. The roommate would likely argue that even if such a sublease existed, it was only on a month to month basis. In that case, in order to terminate that oral month-to-month lease, what is required is to send you a termination notice prior to ten days before the end of the month. A month to month lease also is the result if no written or oral lease exists, so even if you have been paying the rent directly to the landlord, you still likely only have a month to month lease with him. It appears as though the landlord has given you a termiantion notice in a timely fashion to terminate the lease on November 30. There may be some defects in the notice, but you don't want to have to try to use that as the basis for remaining in a hostile environment. The landlord said it best. You are at the mercy of the male half of the couple. If he says the sublease is over, it's over. Trying to fight it will be a waste of time and money and likely not worth the fight (your chances of being allowed to stay beyond December 1 are remote). There are lots of apartments for rent in the City, I suspect. My advice is to start looking for one now and sign a written lease this time in order to protect your rights. The best thing to do is then record the lease in the Conveyance Office of the Parish in which the property is located to lock yourself into the property for the term of the lease. Recording the lease protects you in case the landlord sells the property, as the lease will then be binding on buyer (if it isn't recorded, the buyer could evict you even if you had a written lease with the prior landlord - you could sue the prior landlord, but he may have moved away and that could be an empty remedy). I'm sorry the news isn't better, but the lesson learned is to establish your rights with the owner of the property next time, and get it in writing.

Subject: Relief from Expropriation
Question: I have paid my taxes, but was told that a city agency can consider my deceased father's blighted property, without notification, has placed a lean at a rate of $500 a day, since January 2009. The city will apparent sell the property at a tax sale next year. What's my obligation for the lean or fines when the property goes through succession. Is there value to me responding by cutting the grass and boarding up windows and doors as described in the violation description? How can I get relief from the excessive leans and fines? Can I sell the property? Can I give it away?

Answer: (October, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

There are no easy answers here. Let me answer your last qusetions first. Yes, you could sell or donate the property (provided you have closed your father's succession and been placed in possession of the property), but the buyer or donee would then be faced with dealing with these blighted property liens. The seller would subtract the cost to remove the liens from any purchase price he would pay, and a donee may not be willing to accept the donation with the liens on the property. You will have to deal with these liens and the condition of the property one way or the other. My suggestion is to contact the City agency that placed the liens on the property (that notification information should be included in the lien). I suspect if you are willing to do what is required to remove the property from the blighted property condition in which it is in, the City may be willing to forgive part or all of the fines, but that is far from certain. The first step would be to contact the City and find out what they are willing to do. If they play hard ball, meaning you have to pay the fines and comply with the minimum requirements to remove the property from its blighted condition, you will have to decide whether or not to do that or abandon the property. I don't know the values here, but I suspect the property is likely worth saving, so you may have to pay the fines and fix the property up to some extent in order to be able to sell it or donate it, as a practical matter.

Subject: Five Day Notice to Quit Means of Service
Question: I live in Florida and have a rental house in New Orleans. It is September 7, 2009 and the tenants have still not paid rent despite repeated requests (rent is due on the 3rd per the lease). Does the notice to quit have to be physically posted on their door or can it be e-mailed or sent via registered mail? Also, I stupidly allowed these tenants to use utilities in my name. I constantly receive notice from the utilities that they are about to cut service. The tenant's lease expires October 31, 2009. Can I cut service now and tell them to put it in their own name or would this be considered some sort of illegal self help. My fear is that they will leave me with huge utility bills that the security deposit will not cover

Answer: (September, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

The Notice to Vacate needs to be affixed to the door of the leased premises or served, but check your written lease (assuming you have one) to see if this requirement is waived (it often is). Filing the eviction proceeding disturbs the tenant's right of peacable possession and usually means that the right to collect rent is thereby terminated, though you may still seek damages to recover any lost rental income. Another route to consider would be to file suit to enforce the lease and move to sequester (seize) all movable property located on the leased premises. This would entail greater filing and sheriff's fees to effect the seizure, but it provides an option by which to secure the payment of rent. If all you are interested in is removing the unpaying tenant as soon as possible, just pick up a form for eviction and file in First or Second City Court; the eviction proceeding is set with priority and should be on the court's docket in a week or thereabouts. Once an order of eviction is entered, the tenant has 24 hours to leave or a warrant for possession will issue instructing the sheriff to remove the tenant's belongings. On the utilities question, I strongly suspect that cutting off the tenant's utilities is likely not a perfect solution from a legal standpoint. On the other hand, I don't see any reason to keep utilities in your name when the lease likely calls for the utilities to be put in the name of the tenant (you should review your lease to see if there are any provisions specificially covering this issue). As a practical matter, with the lease expiring at the end of October anyway, I would go ahead and take the utilities out of your name. I doubt seriously that this deadbeat tenant will hire an attorney to sue you over that issue even if the tenant had some obscure cause of action to do so.

Subject: Deposit
Question: I lived in an apt for approx 1.5 years. During that time the landlady was very difficult to get hold of (didnt return phone calls). She ignored or delayed requested repairs. The biggist issue was with roaches. It was a 10 apt complex and my downstairs neighbors got roaches last Nov. I got them in Dec. She had an exterminator out in Feb. but with no notice and only did open apts. Mine was one but this did not take care of the problem. I mailed her a letter at the end of July that unless the problems were resolved I was moving out at the end of June. I then tried to call her repeatedly; she never returned the calls. I found a new place mid June and left her a message that I was definately moving out. She then called back (miracle!) and said that I didn't give 30 days notice. I told her I did but she claimed she never received it and never got any messages from me. I sent her a certified letter with a copy of the original. She said I couldn't move out or I would lose my deposit. She did say that I could find someone to take over and I could get my deposit back. I then tried to find someone to take over the lease but was unable to. I did this more because I wanted to avoid a fight then because I felt I needed to. It is now Sept and I haven't received my deposit back. It was 750.00. What are my options? Lia

Answer: (September, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I would really have to review the lease in order to give you definitive advice on whether a 30 day notice was even necessary to give the landlord prior to terminating the lease. For instance, I don't know when the original term was due to expire or if you were under a month to month arrangement. If it was a month to month arrangement, you would only have needed to give the landlord ten days notice prior to the end of the month in order to terminate the lease. The question about whether the landlord received the proper notice about your terminating the lease is a problem without a perfect solution. If the case went to court, the judge would have to decide who to believe. If you had a certified card showing that you timely mailed the notice, and the card was signed by the landlord, the judge would likely believe you. If it was just sent by regular mail, then the Judge would have to decide who he believed. Sending the certified letter after the fact is possibly helpful, but the lesson here is to send the certified letter the first time. There isn't anything you can do about that now. With respect to the deposit, you will need to gather up all the evidence you have of the notice you gave her to terminate. If she won't return the deposit voluntarily, your only recourse is to file suit against her in small claims court (I'm assuming this is Orleans Parish). There is a provision in the law that is tenant friendly with respect to the return of deposits, however, which may help you. It basically states that after the lease terminates, the landlord has 30 days to return the deposit or give you written reasons why the deposit isn't being returned. The landlord's failure to provide the reasons within the 30 days creates a presumption that the landlord is in bad faith, which then entitles the tenant to the return of the deposit, plus $200 or actual damages, whichever is greater, and reasonable attorney's fees. The questions you need to answer is when did the landlord receive notice that you terminated the lease, which would start the 30 day clock for the landlord to return the deposit or provide the written reasons, and did you receive written reasons for the landlord keeping the deposit. Even if the landlord gave you the written reasons, you could still sue the landlord for the return of the deposit, and if the judge ruled that the reasons were unjustified, you would still be entitled to the statutory penalties that favor the tenant (it's just harder to prove). The idea behind small claims court is to permit individuals to seek access to the courts to resolve small matters without having to incur the expense of hiring an attorney. It will take you some time, but if your facts are good, you may be able to get some or all of your deposit back if you take that route. It's also possible that if you simply file the suit, the landlord will pay the deposit in order to avoid having to defend the suit, but don't count on that. It's not a perfect system.

Subject: Lawyer for Mortgage Issues
Question: My 80 year grandparents have been haing a hard time with their mortgage company. The mortgage company has been lying to them, taking payments and not applying them, forcing new insurance polciies that are not needed, harrassing them. And on top of this they keep trying to sell the house at auction and keep the Katrina insurance money. There are lawyers out there that handle this type of case but I cannot find anyone that will help the homeowner. What type of lawyer do they need and where can I look. Also the home is currently "evidence" in kawsuit related to katrina damage, can it be sould by the mortgage company while involved in a legal dispute. Any help would be great my grandparents have been very ill since fightinh with the mortgage company constantly.

Answer: (August, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

There really are not enough facts here to give you a definitive answer to all of your questions. In general, a lender has many rights under a mortgage if you get behind in your payments. This could include requiring mortgage insurance, and if that doesn't work, they have the right to foreclose on the mortgage. Once a foreclosure occurs, the lender has the right to have the property sold at public auction. If the price sold at auction covers the balance of the amount your grandparents owed the lender, that will be the end of it. If it brings more than the amount owed (very rare), the balance would be paid to your grandparents. If the auction sale price is less than the amount owed by your grandparents, the lender could sue your grandparents for the deficiency. There are certain requirements the lender has to meet in order to sue for a deficiency, such as getting the property appraised first. My suspicion based on the scant facts of this inquiry, and I am having to guess here to some extent, is that your grandparents fell behind in the mortgage and the lender instituted foreclosure proceedings. They wouldn't have a right to sell the house at auction unless they already went through the foreclosure process. That being said, even if the house was sold at foreclosure, and provided your grandparent had a valid Katrina claim with respect to the house while they owned it and a lawsuit was timely filed against the insurance company, that cause of action against the insurance company would survive. Again, I don't have nearly enough facts to advise you fully on this matter, and you do need to consult an attorney to get proper advice. If they already filed a Katrina lawsuit, they could consult their existing attorney. If not, I would suggest you attempt to locate an attorney with real estate experience. Once he gets all of the facts, he should be able to properly advise you. It is doubtful, however, that an attorney would be willing to take this case on a contingency basis, and you would likely have to pay his hourly rate.

Subject: escrow for renters
Question: have been telling landlord about failed a/c, now we have a 615$$$$ bill because of this, how can we get our rent into escrow? and can I fix without escrow

Answer: (July, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

This is a common problem without a very good answer. The first thing to do is read the lease, but I will take it as a given that this is a fairly standard apartment lease that is normally written more favorably for the landlord. That being said, the landlord usually has the obligation to maintain the major components of the apartment, such as a central air-conditioning system, unless the damage was caused by the negligence of the tenant. When you have a problem of that nature, the best course of action is to have the landlord make the repair. What appears to have happened here is that you tried that and the landlord either refused to make the repair, or you got impatient waiting for him to make the repair. It's tough to live in New Orleans in the summer without air conditioning. What I believe you are proposing to do is to withhold a portion of the rent to cover a repair cost you made. Your inquiry is rather cryptic, so I am having to make several assumptions here. Under some circumstances the law gives the tenant the right to make repairs that the landlord is required to make and which the landlord fails to make. If you meet some rather stringent requirements, the tenant may also have a right to deduct the cost of repairs that were supposed to be made by the landlord from the rent. That's the theoreticaly good news about your situation. Now for the practical bad news. The one thing that can get you in the most trouble with respect to a lease is to fail to pay all or part of the rent. That may give the landlord the right to evict you for failure to pay the rent. While you may have a defense to the eviction proceeding, you may not be successful in proving that the repair was required to be made by the landlord, and here's the tricky part, AND THE LANDLORD FAILED TO MAKE THE REPAIR IN A TIMELY FASHION. Even if the repair was the Landlord's responsibility to make, the Landlord can argue that you jumped the gun. He had scheduled to have his handy man make the repair, but you did it on your own, prematurely, and spent way too much money doing so. You may have defenses to all of that, but you will have one foot in the grave because one thing will be crystal clear, which is that you failed to pay part of the rent. That is why I caution tenants who are in your predicament to take every measure possible before they make a repair that is the responsibility of the landlord. I advise them to exhaust all reasonable means of placing the landlord on notice about the need for the repair, and document everything in writing, including a letter stating the problem. If all of that fails and it is clear that it is the landlord's responsibility to make the repair, I next tell them to get a couple of estimates for the repair (again in writing) and take the lowest bid. If the lease requires the landlord to make the repair, they can then withhold the rent with some degree of confidence that they are on firm footing in withholding the rent. In order to give you definitive advice on your situation, I would really have to review your lease and know more facts surrounding the circumstances by which the air-conditioner stopped working.

Subject: landlord dispute
Question: My son's girlfriend has rented her first apartment, and there are some problems. There is no gas meter, and therefore no hot water, or stove that can be used. It's been 2 weeks since she moved in. Is there a local organization to help her communicate with her landlord, or just tell her what to do? As you can imagine, she's not too keen on taking advice from her boyfriend's mom! thanks

Answer: (July, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

There are a number of issues here. To answer the last question first, I don't know of any local organization that has a list of landlords in a given area. Your question doesn't state where the property is located, but as this is the New Orleans Bar Association website, I will presume for the moment that the property is in the Greater New Orleans Area. The answer is the same, however, as there is no one to call to complain about this problem. Your son's girlfriend should have signed a lease, however, unless we are dealing with an oral lease. If there is a written lease, then there should be an addresss for the landlord on the lease and a way to contact him. All apartments should have heat, although not all of them have gas heat. Do you know if the house is equipped with an electric heater and/or an electric stove? She may have to go out and buy a space heater, but that seems a little extreme. If she only has an oral lease, it is likely a month to month lease and if she can't get these issues resolved, her only alternative would be to move out and be a lot more careful next time (like checking out the apartment to see if it has hot water and a working stove before she moves into the apartment, signs the lease or gives the landlord the first month's rent).

Subject: removing name off property & suing contractor
Question: i would like to know what i would have to do to have someone's name remove off the title on my property or deed since they agree to give up all rights to the property. My second question is i would like to sue the contractor who was working on my house took my money and did not finish the job. After dealing with this person i don't think he's a real contrator because i couldn't find any information on the company name he used. My fault is that i put trust in a friend of a family who said he was a contrator and that he was working on other houses which i visisted so i thought i was paying someone i knew and trusted...any information u can give me or any direction u can point me in to try and start dealing with this situation and start healing will be greatly appreciated,,i been out of my home since Katrina and i am truely ready to go home but i can't with all this hanging over me

Answer: (June, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

In order to remove someone's name from the title to the property, you would have to have him or her transfer their interest in the property to you in some fashion, and record the transfer in the Conveyance Office of the Parish in which the property is located. This would typically be in the form a cash sale or a quitclaim deed. If the party is willing to transfer the interest to you and doesn't want to be paid any money for some reason, the transfer may have to take the form of a donation so that it doesn't create a potential problem down the road for you due to a failure of the seller to pay adequate consideration. I would need more facts (value of property) before I could give you definitive advice on the best form of transfer document to use. As far as suing a contractor for defective work, that is a relatively simple process. You would have to go to a lawyer, provide him with the facts, and he could then file a lawsuit against the contractor for any defective work performed. Although that is a relatively simple process, the big problem is that litigation is very expensive. Based on the brief facts you have provided, it seems unlikely a lawyer would be willing to take on this case on a contingency basis. That means you would have to pay a lawyer his normal hourly rate to represent you in this matter. I'm not sure how much damage the contractor did to the property, or how much you paid him for the defective work (or for work not done), but unless it is a substantial amount, there is a distinct possibility that your legal costs will exceed the damages you seek. It's a very imperfect system. Another problem with litigation is that even if you get a judgment against the contractor, there is no guarantee that the contractor will be able to pay the judgment. Unless you know going in that the contractor has a lot of money, you have to be concerned that suing him and paying a bunch of legal fees is worth it. One other possibility is small claims court, in which the legal filing costs are lower and you may be able to prepare the papers necessary to sue the contractor without the assistance of a lawyer. In that way you may be able to have your day in court without undergoing the expense of a lawyer, or at least not as great an expense (you might get some assistance from a lawyer in filing the papers in small claims court and then you would set a trial and tell your story to the judge). You would still have the problem of whether the contractor could pay a judgment, and the contractor will have his own side to the story, but provided this is a small claim and there isn't too much money involved, that may be another possibility you could consider. Again, I would need more facts before I could advise you whether small claims court would be a viable option for you.

Subject: Real Estate/Servitude Issue
Question: I have a 40' servitude on my neighbors property. We live on a private road and purchase our property b4 them. They have now shut off our garbage service because they don't want the truck on the road in front of their property. Parish can't help. We can't get service now. Cant find atty. to help. What can I do. I have all survey's. Please help.

Answer: (April, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

The answer to this question will be based on the language of your servitude agreement and its precise location. Generally speaking, a servitude is a right to use the property of another for some specific purpose. The servitude can be in favor of an individual or be for the benefit of a specific piece of property. If this particular servitude is for vehicular access and flows in favor of your property (i.e. vehicle access across the property of your neighbor from the public road to your property), and provided the servitude hasn't terminated for some reason, you may well have a right to allow the garbage trucks to use this 40' servitude to pick up the garbage from your property. Before anyone could give you definitive advice on this matter, however, they would need to review the servitude agreement. They would also need to review the surveys showing the location of the servitude, your property in relation to the servitude, and the nearest public road. Once they gathered all of the facts, an attorney should be able to advise you on your rights. If all of these documents show that you have a right to allow the garbage trucks to utilize the servitude to gain access to your property, and the neighbor still refuses to allow them on the servitude parcel, your only recourse would be to sue the neighbor, and hope to have a court enforce your rights under the servitude agreement. That could get quite expensive, so your goal should be to find out what rights you have, and then try to reason with the neighbor so that you can work the matter out amicably, if that is possible.

Subject: Apprasial
Question: My siblings want their share of dad's estate and mom wants to sell. Do we go with the value of the house at dad's succession(pre hurricane katrina), or do we need an appraisal of the house now(post hurricane katrina)?

Answer: (April, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

The question is not as clear as I would like, so I am having to guess a bit here. You may need to clarify the question. I don't know if the succession of your father is still open or if the heirs have been placed in possession of the property. If it was community (likely) and the succession is closed, your mother would own 1/2 of the house outright, and have a usufruct over the other half, with the children being the naked owners. Your mother apparently wants to sell the property and your siblings want some money. I would really have to see the Will to give a definitive answer, and know whether the house was your Dad's separate property or community property. If the property was community, the children would need to concur in the sale of the house. Your mother's usufruct of the house would then be converted to a ususfruct of money. She could use the money and spend it, but her estate would owe an accounting to the naked owners at her death. They wouldn't be entitled to any money under this scenario until your mother's passing. This is fairly complicated because unless the Will gave your mother the power to alienate the property without the concurrence of the naked owners, the naked owners could block the sale of the property. Your mother may have to agree to give them their share early in order for them to concur in the sale of the property. You would need to carefully document that part if that is how you decide to proceed so that it is clear they got their share early (in the event you decide to let your mother keep your share of the money for now). The appraisal issue is really a red herring, as the value doesn't matter, as it is the proceeds from the sale that are at issue. The value of the property at the date of your Dad's death is only relevant with respect to the value for estate tax purposes, but doesn't really have an impact on the share your siblings would receive. You may want to discuss this further with an attorney, who will really need all of the facts in order to provide you with the best advice. For instance, if you Dad left the house to your Mom in his Will outright, all of the above advice would change. There could be a host of other relevant facts that would also change this advice dramitically. I am available if you would like to discuss this matter further. My contact information is below. James R. Morton Taggart, Morton 1100 Poydras Street, Suite 2100 New Orleans, Louisiana 70163-2100 Tele: 504-599-8507 Cell: 504-491-2330 Fax: 504-599-8501 E-mail: jmorton@taggartmorton.com

Subject: Losing Property to Tax Sale
Question: I appear to have neglected to pay my property taxes last yea, and I just got a notice that the property was sold at a tax sale. Is there any way I can undo what has happened?

Answer: (February, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

You can't actually undo what has happened, but as long as no more than three years has elapsed since the property was sold at a tax sale, the original owner has a right to redeem the property from the tax sale purchaser. What that will entail is your locating the tax sale purchaser and having him sign a tax sale redemption deed. You will be required to pay the tax sale purchaser the amount of the taxes he paid, plus interest and penalties, but that is certainly a better option than losing the property. You will likely need to contact a lawyer to assist you with the process, especially if the tax sale purchaser is uncooperative.

Subject: Refinancing My Mortgage
Question: I am refinancing my loan and have looked at the provision of the mortgage. I see a number of changes in the general terms I would like to make. What is the best way to negotiate changes to the mortgage document?

Answer: (February, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

I guess the short answer would be that you will need a lot of luck. Generally speaking, lenders never change any of the terms of their standard mortgage. In fact if you find anything in the standard mortgage that favors the borrower, it is likely a mistake on the lender's part. The likely line you will hear from a lender is that if you don't like the provisions of the mortgage, you are not alone, but if you want to change them, you will simply have to go borrow money from someone else. What I normally tell borrowers is that as long as you make your monthly payments on time and don't let the property fall into disrepair, the lender won't bother you. On the other hand, if you start missing payments, you will find yourself in a world of trouble, as all of the nastiest provisions you can envision will go into effect. They are designed to allow the lender to foreclose on the mortgage in as quick a manner as possible, and there is very little you will be able to do to change that.

Subject: Selling Property "As Is"
Question: I'm selling my house, and someone told me it is best to sell the property "as is." How important is that?

Answer: (February, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

It's actually pretty important in Louisiana. Unlike most jurisdictions throughout the country in which the general rule is "buyer beware," in Louisiana the concept is really closer to "seller beware." The Louisiana law is called redhibition, and it entitles a buyer to obtain either a reduction of the purchase price or even a rescission of the sale if a latent or hidden defect is discovered after the sale (crack in the slab for instance that no one knew about). The concept of redhibition can be waived by the buyer, however, and when I represent a seller, I normally try to get the buyer to agree to waive redhibition (the Louisiana "as is" clause), which needs to be set forth in detail in the agreement to purchase and the eventual act of sale. What I normally tell a buyer is to go ahead and inspect the property thoroughly and make sure you are happy with it because when the property is sold to you, the seller wants to be able to spend the purchase price. Due to the redhibition concept, the seller really isn't able to do so because if the buyer finds some defect down the road that may or may not have existed at the time of the sale, the buyer could claim that it existed at the time of the sale and sue the seller (unless the buyer waived redhibition). The buyer could then seek either a reduction in the purchase price or if the defect is bad enough, a rescission of the sale. In either event, the seller will have to defend a lawsuit, which rarely has a happy ending.

Subject: Sell by Owner?
Question: I am thinking about selling my house. Do I need to engage a real estate agent or can I sell it by owner and save on the real estate commission?

Answer: (February, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

You are not required under Louisiana law to hire a real estate agent when you sell property on your own. If you have all the time in the world to sell the property (don't really care how long it takes to sell the home), then selling the home by owner might be an option you could then consider. The problem is that most of us need to sell our current home so that we can buy a new one. The issue with selling a home by owner is that someone will have to drive by the property in order to know it is for sale. You probably have to be very lucky to sell it that way. You could advertise it in the newspaper, but it won't appear in the real estate agents multi-listing, which would occur if you list it with an agent. As such, and because there is no commission in it for an agent, your property isn't going to get the exposure that it would get if you sell it through an agent. Normally, I recommend that you engage an agent who has a good track record in selling property in your area. On the other hand, if your house is located in an area that is very hot, and properties are selling quickly, you might try the sale by owner route for a couple of weeks. If you get lucky, you will save the commission. If that doesn't work out, you can always turn around and list the property with an agent.

Subject: Landlord/Tenant
Question: At the end of my apartment lease, the landlord refused to give me back my deposit. What can I do?

Answer: (February, 2009)
James R. Morton | Taggart Morton L.L.C. | 1100 Pydras Street, Suite 2100 | New Orleans, LA 70163

There is a Louisiana statute that is very favorable to tenants with respect to the return of their deposit. A landlord is required to return the deposit in 30 days from the end of the lease unless he has provided the tenant with written reason why he is retaining the deposit. I normally like to send a letter by certified mail specifically requesting the return of the deposit and stating the date on which I departed the property and returned the keys, so that it is clear when the 30 days starts to run. If the landlord does not then return the deposit or provide you with the accounting of how it was used to repair the property within 30 days, there is a presumption that the landlord is in bad faith, which entitles the tenant to the return of the deposit, plus $200 in damages (or actual damages if higher) and attorney's fees. My advice would be to write the landlord a letter seeking the return of the deposit. If you get no response within the 30 day period, I would then suggest that you hire a lawyer and sue your landlord for the return of the deposit under the provisions of the Louisiana statute.

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