Opening the Can of Worms and Putting Them Back in: An Analysis of New Louisiana Civil Code Article 2695

Opening the Can of Worms and Putting Them Back in: An Analysis of New Louisiana Civil Code Article 26951

Introduction

The lessee-lessor relationship is one of the most common juridical relationships known to the law. As such, one would expect the law to clearly define the parameters of this relationship and to detail the rights and obligations of the parties thereto. Unfortunately, Louisiana's law of property and lease does virtually nothing to address one of the most fundamental concerns of these contracting parties-constructions or improvements the lessee makes on land during the lease term.

Suppose, for example, a lessee builds a house and swimming pool on land belonging to the lessor. Suppose further that the lessee decides that he does not want an above-ground pool, but also does not want to pay the cost of installing a concrete pool. So, the lessee decides to dig a hole himself, buy an above-ground pool, and put it in the hole. What happens at the end of the lease? Under Louisiana's law of lease prior to 2005, there was no clear answer to questions such as who owns the pool, whether the landowner must pay the lessee for the pool, or whether the landowner could demand that the lessee remove the pool.

What happens to the house constructed by a lessee on leased premises? Must it be torn down, and if so, at whose expense? May it remain? If so, must the landowner pay the lessee for the increased value of the land due to the construction of the house? Under Louisiana's law of lease prior to 2005, the lessee owns the house and has the right to remove it.2 If the lessee does not remove it, the landowner may either become the owner of the house or let it stay on his land without becoming the owner.3 Is this not an unfair result for unsightly and unwanted constructions? Should the landowner be forced to keep such items on his land?

These issues were exceptionally problematic when the landowner did not consent to the lessee's construction of the house. According to Louisiana's law of lease prior to 2005, the unconsenting landowner owns the house and owes nothing to the lessee.4 Is it not unfair to the lessee to provide no measure of reimbursement for his legitimate expenses in constructing this improvement, which may be quite substantial? Is forcing a landowner to own a construction he does not desire a sufficient remedy to the problem?

Louisiana's law of lease prior to 2005 created these and other troubling issues with respect to the resolution of landlord-tenant construction disputes. However, after a ten-year revision process, the Louisiana Law Institute recently completed a comprehensive revision of the Civil Code's law of lease. The lease revision was adopted during the 2004 legislative session and became effective January 1, 2005.5 This comment focuses on one particular change made by the new Louisiana Civil Code articles on lease. In particular, it will analyze new article 2695 addressing attachments, additions, or other improvements to leased things.6

Prior to the 2005 revision, improvements to leased things were regulated solely by cross-reference to the general accession code articles in...

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