Legal Memorandum: Prescriptive Period for Breach of Leases in LA

Issue: What sort of period does the Louisiana law of prescription establish for breach of leases?

The applicable statutes of prescription for negligence and nuisance causes of action establish a one year prescriptive period.  “Delictual actions are subject to a liberative prescription of one year.  This prescription commences to run from the day injury or damage is sustained.”  LSA-C.C. art 3492.  Article 3493 further provides that when, as here, “damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.”  Id. art. 3493.

With respect to contract claims based on breaches of various leases, the prescriptive period is ten years.  Id. art. 3499

Louisiana courts strictly construe such prescriptive statutes against prescription.  Accordingly, when there are two possible constructions, the court will adopt the one that favors maintaining, rather than barring, an action.  Bustamento v. Tucker, 607 So. 2d 532, 537 (La. 1992) (citing Lima v. Schmidt, 595 So. 2d 624, 629 (La. 1992) (collecting cases)).

The burden of proof is on the party raising the exception of prescription to prove that the claim is prescribed.  However, when it is apparent from the face of the plaintiff’s petition that the prescriptive period has run, the burden then shifts to the plaintiff to prove some exception to prescription or interruption of the period.  Winford v. Conerly Corp., 04-1278 (La. 3/11/05); 897 So. 2d 560, 565 (“[I]f prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that […]