Dear Judge Fitchue:
This office is in receipt of your opinion request in which you ask if it is proper, in an eviction proceeding, to send a five day notice to vacate with the order to appear in court for a total appearance date of eight days.
Code of Civil Procedure Article 4701 states as follows:
Art. 4701. Termination of lease; notice to vacate; waiver of notice
When a lessee's right of occupancy has ceased because of the termination of the lease by expiration if its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.
If the lease has no definite term, the notice required by law for its termination shall be considered as a notice to vacate under this Article. If the lease has a definite term, notice to vacate may be given not more than thirty days before the expiration of the term.
A lessee may waive the notice requirements of this Article by written waiver contained in the lease, in which case, upon termination of the lessee's right of occupancy for any reason, the lessor or his agent may immediately institute eviction proceedings in accordance with Chapter 2 of Title XI of the Louisiana Code of Civil Procedure.
Note in paragraph one that it says "lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee." The justice of the peace is not the lessor and cannot be the agent because the justice of the peace must remain an impartial judge. The justice of the peace may not cause written notice to vacate the premises to be delivered to the lessee. The justice of the peace should take no part in the eviction process until such time as a suit is filed with his court.
In some cases the lessor must give a notice of termination to the lessee. For example, Civil Code Article 2686 requires a ten day notice of termination and states as follows:
Art. 2686. Notice of termination when no agreement as to duration
The parties must abide by the agreement as fixed at the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to it must give notice in writing to the other, at least ten days before the expiration of the month, which has begun to run.
Once the required notice has been delivered to the lessee or the occupant, and the time period allowed for the lessee or occupant to comply with the notice has lapsed, if the lessee or occupant refuses to vacate, the lessor may institute an eviction suit by filing a petition with the justice of the peace court. The justice of the peace then issues a rule to show cause which is an order to the lessee or occupant to appear in court to show cause why he should not be ordered to deliver possession of the premises to the lessee or owner. This rule to show cause is in the form of an order of the court and should state the grounds upon which the eviction is sought.
Code of Civil Procedure Article 4732 states as follows:
The court shall make the rule returnable not earlier than the third day after service thereof, at which time the court shall try the rule and hear any defense which is made.
If the court finds the lessor or owner entitled to the relief sought, or if the lessee or occupant fails to answer or to appear at the trial, the court shall render immediately a judgment of eviction ordering the lessee or occupant to deliver possession of the premises to the lessor or owner.
In accordance with the above cited statutes, the justice of the peace may not issue the rule to show cause and eviction suit until such time as the lessee or occupant fails to comply with the required notice to vacate or terminate, or unless the lessee has waived his right to the notice to vacate by written waiver contained in the lease.
In conclusion a justice of the peace may not send a five day notice to vacate along with an order to appear in court for a total number of eight days. The notice, unless expressly waived, must be sent first by the lessor or his agent. Then, a justice of the peace may issue a rule to show cause and order to appear in court.
We hope this opinion has sufficiently addressed your concerns. If our office may be of further assistance, please do not hesitate to contact us.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: _______________________________ J. RICHARD WILLIAMS Assistant Attorney General
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