A Civil Law Tradition
Art. 2716. Termination of lease granted by a usufructuary. A lease granted by a usufructuary terminates upon the termination of the usufruct. The lessor is liable to the lessee for any loss caused by such termination, if the lessor failed to disclose his status as a usufructuary.
Art. 2714. Expropriation; loss or destruction. If the leased thing is lost or totally destroyed, without the fault of either party, or if it is expropriated, the lease terminates and neither party owes damages to the other.
Revision comments-2004 (b) If the loss or destruction is total, or if the whole thing is expropriated, then under Civil Code Article 2714 (Rev. 2004), the lease terminates, regardless of whether the events that brought about the loss or destruction are attributable to the fault of either party. Although this Article contains the phrase “without the fault of either party,” that phrase addresses the parties’ right to claim damages. That is, if the loss or destruction was not attributable to the fault of either party, then neither party owes damages to the other.” Conversely, if the loss or destruction was attributable to the fault of one party then, of course, that party would owe damages to the other, but the lease would also terminate for the simple reason that the destruction of the whole object of the contract renders performance impossible. C£ C.C. art. 1876 (Rev. 1984).
Art. 1876. Contract dissolved when performance becomes impossible When the entire performance owed by one party has become impossible because of a fortuitous event, the contract is dissolved. The other party may then recover any performance he has already rendered.
Art. 2715. Partial destruction, loss, ,expropriation, or other substantial impairment of use. If, without the fault of the lessee, the thing is partially destroyed, lost, or expropriated, or its use is otherwise substantially impaired, the lessee may, according to the circumstances of both parties, obtain a diminution of the rent or dissolution of the lease, whichever is more appropriate under the circumstances. If the lessor was at fault, the lessee may also demand damages. If the impairment of the use of the leased thing was caused by circumstances external to the leased thing, the lessee is entitled to a dissolution of the lease, but is not entitled to diminution of the rent.
Art. 2713. Lessee’s right to sublease, assign, or encumber. The lessee has the right to sublease the leased thing or to assign or encumber his rights in the lease, unless expressly prohibited by the contract of lease. A provision that prohibits one of these rights is deemed to prohibit the others, unless a contrary intent is expressed. In all other respects, a provision that prohibits subleasing, assigning, or encumbering is to be strictly construed against the lessor.
Art. 2711. Transfer of thing does not terminate lease. The transfer of the leased thing does not terminate the lease, unless the contrary had been agreed between the lessor and the lessee.
Art. 2712. Transfer of immovable subject to unrecorded lease. A third person who acquires an immovable that is subject to an·unrecorded lease is not bound by the lease. In the absence of a contrary provision in the lease contract, the lessee has an action against the lessor for any loss the lessee sustained as a result of the transfer.
Revision Comments – 2004. (b) Civil Code Article 2711 (Rev. 2004) deals with the relationship between the lessor and the lessee and provides that, in the absence of a contrary agreement between them, the transfer of the leased thing does not terminate the lease. In contrast, the first paragraph of Civil Code Article 2712 (Rev. 2004) deals with the relationship between the lessee and a “third person” who-usually through a transfer from the lessor-acquires an immovable that is subject to an unrecorded lease. This paragraph provides that the third person is not-by virtue of this acquisition alone-bound by the lease.
(c) The second paragraph of Civil Code Article 2712 (Rev. 2004) returns to the relationship between the lessor and the lessee and defines the lessee’s rights vis a vis the lessor for any loss the lessee may have sustained as a result of the transfer. For example, if the third person transferee exercises his right to evict the lessee before the end of the term, then the lessor-who has put the transferee in that position-is in breach of his obligation of warranty of peaceful possession. See C.C. art. 2700 (Rev. 2004). Because of the seriousness of this breach, Civil Code Article 2712 (Rev. 2004) gives the lessee an express cause of action to recover any loss the lessee sustained. This remedy is in keeping with the general law of obligations.
Art. 2707. Lessor’s privilege. To secure the payment of rent and other obligations arising from the lease of an immovable, the lessor has a privilege on the lessee’s movables that are found in or upon the leased property. In an agricultural lease, the lessor’s privilege also encompasses the fruits produced by the land.
Art. 2708. Lessor’s privilege over sublessee’s movables. The lessor’s privilege extends to the movables of the sublessee but only to the extent that the sublessee is indebted to his sublessor at the time the lessor exercises his right.
Art. 2709. Lessor’s right to seize movables of third persons. The lessor may lawfully seize a movable that belongs to a third person if it is located in or upon the leased property, unless the lessor knows that the movable is not the property of the lessee. The third person may recover the movable by establishing his ownership prior to the judicial sale in the manner provided by Article 1092 of the Code of Civil Procedure. If he fails to do so, the movable may be sold as though it belonged to the lessee.
Art. 2710. Enforcement of the lessor’s privilege. The lessor may seize the movables on which he has a privilege while they are in or upon the leased property, and for fifteen days after they have been removed if they remain the property of the lessee and can be identified. The lessor may enforce his privilege against movables that have been seized by the sheriff or other officer of the court, without the necessity of a further seizure thereof, as long as the movables or the proceeds therefrom remain in the custody of the officer.
Art. 2703. “When and where rent is due. In the absence of a contrary agreement, usage, or custom:
(1) The rent is due at the beginning of the term. If the rent is payable by intervals shorter than the term, the rent is due at the beginning of each interval.
(2) The rent is payable at the address provided by the lessor and in the absence thereof at the address of the lessee.
Art. 2704. Nonpayment of rent. If the lessee fails to pay the rent when due, the lessor may, in accordance with the provisions of the Title “Conventional Obligations or Contracts”, dissolve the lease and may regain possession in the manner provided by law.
Art. 2705. Abatement of rent for unforeseen loss of crops. In the absence of a contrary agreement, the agricultural lessee may not claim an abatement of the rent for the loss of his unharvested crops unless the loss was due to an unforeseeable and extraordinary event that destroyed at least one-half of the value of the crops. Any compensation that the lessee has received or may receive in connection with the loss, such as insurance proceeds or government subsidies, shall be taken into account in determining the amount of abatement.
Art. 2706. Loss of crop rent. When the rent consists of a portion of the crops, then any loss of the crops that is not caused by the fault of the lessor or the lessee shall be borne by both parties in accordance with their respective shares.
Art. 2700. Warranty of peaceful possession. The lessor warrants the lessee’s peaceful possession of the leased thing against any disturbance caused by a person who asserts ownership, or right to possession of, or any other right in the thing. In a residential lease, this warranty encompasses a disturbance caused by a person who, with the lessor’s consent, has access to the thing or occupies adjacent property belonging to the lessor.
Art. 2701. Call in warranty. The lessor is bound to take all steps necessary to protect the lessee’s possession against any disturbance covered by the preceding Article, as soon as the lessor is informed of such a disturbance. If the lessor fails to do so, the lessee may, without prejudice to his rights against the lessor, file any appropriate action against the person who caused the disturbance. If a third party brings against the lessee an action asserting a right in the thing or contesting the lessee’s right to possess it, the lessee may join the lessor as a party to the action and shall be dismissed from the action, if the lessee so demands.
Art. 2702. Disturbance by third persons without claim of right. Except as otherwise provided in Article 2700, the lessor is not bound to protect the lessee’s possession against a disturbance caused by a person who does not claim a right in the leased thing. In such a case, the lessee may file any appropriate action against that person.
Art. 2696. Warranty against vices or defects. The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee.
Art. 2697. Warranty for unknown vices or defects. The warranty provided in the preceding Article also encompasses vices or defects that are not known to the lessor. However, if the lessee knows of such vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly.
Art. 2698. Persons protected by warranty. In a residential lease, the warranty provided in the preceding Articles applies to all persons who reside in the premises in accordance with the lease.
Art. 2699. Waiver of warranty for vices or defects. The warranty provided in the preceding Articles may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee. Nevertheless, a waiver of warranty is ineffective:
(1) To the extent it pertains to vices or defects of which the lessee did not know and the lessor knew or should have known;
(2) To the extent it is contrary to the provisions of Article 2004; or
(3) In a residential or consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety.
Art. 2690. Alterations by the lessor prohibited. During the lease, the lessor may not make any alterations in the thing.
Art. 2691. Lessor’s obligation for repairs. During the lease, the lessor is bound to make all repairs that become necessary to maintain the thing in a condition suitable for the purpose for which it was leased, except those for which the lessee is responsible.
Art. 2692. Lessee’s obligation to make repairs. The lessee is bound to repair damage to the thing caused by his fault or that of persons who, with his consent, are on the premises or use the thing, and to repair any deterioration resulting from his or their use to the extent it exceeds the normal or agreed use of the thing.
Art. 2693. Lessor’s right to make repairs. If during the lease the thing requires a repair that cannot be postponed until the end of the lease, the lessor has the right to make that repair even if this causes the lessee to suffer inconvenience or loss of use of the thing. In such a case, the lessee may obtain a reduction or abatement of the rent, or a dissolution of the lease, depending on all of the circumstances, including each party’s fault or responsibility for the repair, the length of the repair period, and the extent of the loss of use.
Art. 2694. Lessee’s right to make repairs. If the lessor fails to perform his obligation to make necessary repairs within a reasonable time after demand by the lessee, the lessee may cause them to be made. The lessee may demand immediate reimbursement of the amount expended for the repair or apply that amount to the payment of rent, but only to the extent that the repair was necessary and the expended amount was reasonable.
Art. 2695. Attachments, additions, or other improvements to leased thing In the absence of contrary agreement, upon termination of the lease, the rights and obligations of the parties with regard to attachments, additions, or other improvements made to the leased thing by the lessee are as follows: (1) The lessee may remove all improvements that he made to the leased thing, provided that he restore the thing to its former condition.
(2) If the lessee does not remove the improvements, the lessor may:
(a) Appropriate ownership of the improvements by reimbursing the lessee for their costs or for the enhanced value of the leased thing whichever is less; or
(b) Demand that the lessee remove the improvements within a reasonable time and restore the leased thing to its former condition. If the lessee fails to do so, the lessor may remove the improvements and restore the leased thing to its former condition at the expense of the lessee or appropriate ownership of the improvements without any obligation of reimbursement to the lessee. Appropriation of the improvement by the lessor may only be accomplished by providing additional notice by certified mail to the lessee after expiration of the time given the lessee to remove the improvements.
(c) Until such time as the lessor appropriates the improvement, the improvements shall remain the property of the lessee and the lessee shall be solely responsible for any harm caused by the improvements.
Art. 2689. Payment of taxes and other charges. The lessor is bound to pay all taxes, assessments, and other charges that burden the thing, except those that arise from the use of the thing by the lessee.
