Opinion Number

Dear Constable Grundmeyer:

You have asked this office for an opinion as to whether there is any statutory authority for delaying the execution of eviction warrants during rainstorms until after the storms pass.

The general dispositions for eviction of tenants and occupants are provided by Code of Civil Procedure (C.C.P.) articles 4701 et seq., with the particular procedure for eviction provided by C.C.P. articles 4731et seq. The procedure for execution of warrants of eviction is contained in C.C.P. article 4734. Our legal research efforts have failed to find any statutory authority for delaying the execution of eviction warrants during rainstorms, except that it seems a reasonable procedure to follow, especially when the landlords or lessors (the persons in whose favor the judgments of eviction are rendered) do not object to it.See also 1A La. Civil Law Treatise § 9.8 on "Eviction," which does not mention this particular situation.

In Miles v. Kilgore, 191 So. 556 (2nd Cir. 1939), sub-lessees sued the city marshall, because the city marshall evicted them and put their property out of the premises, when the original lessee/sub-lessor defaulted in rent payments and the original owner/lessor obtained a judgment of eviction and of return of the premises to itself. The city marshall was executing a warrant of eviction issued by the city court pursuant to this judgment. The court's opinion in the case does not report whether the execution of the eviction warrant by the city marshall took place during a rainstorm; however, it did report that the furniture and items of the sub-lessees remained outdoors during the night when it did rain. The court held that the city marshall, acting under the terms of a court-ordered warrant of eviction, could not be held liable to the sub-lessees. It further held that the sub-lessees could have no greater rights than their sub-lessors and had to vacate the premises when their sub-lessor was forced to vacate for non-payment of rent.

Despite the lack of statutory authority for delaying the execution of an eviction warrant during a rainstorm, there might be some ways to make sure you are within legal authority for doing so. First, the judgment of the eviction and/or its warrant issued by the court itself could make such a provision. In that case, the terms of the judgment or warrant itself would carry whatever legal authority you might need. Second, another way that this situation could be provided for by legal provision is by court rule. The city court could make a court rule providing for a reasonable delay in executing eviction warrants during rainstorms, until the storms have passed. In this regard, it should be noted that C.C.P. article 4733 provides,

"If the lessee or occupant does not comply with the judgment of eviction within twenty-four hours after its rendition, the court shall issue immediately a warrant directed to and commanding its sheriff, constable, or marshal to deliver possession of the premises to the lessor or owner."

However, the statutory provisions do not specifically provide for the particular time within which the eviction warrant has to be executed. Under normal circumstances, that time would be something like "reasonably forthwith" or "reasonably soon." Sometimes, arrangements have to made to secure the attendance of the two witnesses required by C.C.P. article 4734, and such activity may take a certain amount of time, however short a period.

We trust that this opinion has satisfactorily answered your request, but if you have any further questions, please send them to us for answering. With warmest regards, we remain

Yours very truly,

JAMES D. "BUDDY" CALDWELL

ATTORNEY GENERAL

By:_____________________

THOMAS S. HALLIGAN

Assistant Attorney General

JDC/TSH/sfj