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Seizure Condition
by Ron Davis

An attempt by a Louisiana shopping center owner to seize the premises of a tenant has apparently failed because of lack of evidence that the tenant committed any wrongs.

The shopping center, Westside North in suburban New Orleans, had leased space to the tenant for the operation of a retail shoe store. And the attempt to seize the tenant's premises followed the closing of the shoe store for several months.

The shopping center owner claimed that during the closing the tenant failed to pay his rent. Moreover, the owner believed that the tenant was prepared to move merchandise from the Westside North facility to a store the tenant operated at nearby Oakwood Shopping Center.

The lease between the two parties allowed the shopping center owner, in the event to nonpayment of rent by the tenant, to enter the tenant's premises "all without service of notice or resort to legal process and without being deemed guilty of trespass."

Before physically repossessing the tenant's premises, however, the shopping center owner requested that the local courts grant him an order allowing the seizure. And a judge granted that request and directed the sheriff to confiscate all of the merchandise located in the tenant's shoe store.

In response, the tenant argued that no back rent was due--that he had "tendered" the amounts in dispute and that the shopping center owner had refused to accept them. The tenant consequently asked the courts to return his property that had been confiscated and require the shopping center owner to pay damages for the seizure of the tenant's premises.

At trial, the judge noted that the shopping center owner failed to provide evidence that the tenant had not offered rent payments during the time in question. That "failure of proof," the judge added, was fatal to the shopping center owner's case.

Explained the judge, "There was no testimony to confirm that the rent had not been paid, nor was there any testimony to show or confirm that the tenant could have removed or otherwise disposed of his property subject to resolution of the dispute over the rent due." The judge therefore lifted the confiscation order and allowed the tenant to pursue a claim of damages against the shopping center owner. (Sarpy Properties v. Diamond Shoe Stores, 761 So.2d 769 [La.App.5 Cir. 2000])

Decision: June 2000
Published: August 2000



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