Lawyers, transactional lawyers in particular, are sometimes criticized for being too picky and for paying too much attention to the little things. In his song, “The End of the Innocence,” musician Don Henley even has a famous lyric about it: “Lawyers dwell on small details.”

But several recent Louisiana appellate court cases, in different areas of the law, illustrate the often serious pitfalls of minor, technical errors. In many cases, the law sets out very specific, detailed procedures that must be followed, and if they are not, the results can be very serious.

The following three cases demonstrate why you should be glad your lawyer is a stickler for details.

Growe v. Johnson, Louisiana Fourth Circuit Court of Appeal

A landlord engaged in conduct that was so egregious that the tenant was entitled to damages for mental anguish. In addition, the landlord wrongfully withheld some of the tenant’s security deposit at the end of the lease. The law allows a tenant to recover damages and attorney’s fees for a landlord’s willful failure to return any portion of a tenant’s security deposit, and the tenant sought to recover damages and attorney’s fees from the landlord in this case. However, the tenant was denied recovery of these items because the law, Louisiana Revised Statute 9:3251, requires a written demand for the return of the security deposit. The tenant in this case failed to issue that written demand, and was thus denied recovery of damages and attorney’s fees.

Crescent City Property Redevelopment Association, LLC v. Muniz, Louisiana Fourth Circuit Court of Appeal

A party acquired property at a tax sale and was issued a tax sale deed. However, Louisiana Revised Statue 43:203 requires that the tax collector must advertise the property for tax sale more than thirty days prior to the tax sale itself. In this case, the tax sale occurred on November 18, 2002, and the tax collector published the first notice of the tax sale on October 18, 2002. October 19, 2002 was a legal holiday and therefore did not count toward the thirty-day time period. That meant that the first advertisement was published exactly thirty days before the tax sale. The court held that Louisiana Revised Statute 43:203 required the advertisement to be published more than thirty days prior to the tax sale. Because the tax sale violated what the court called the mandatory “strict measures” of the statute, the tax sale deed was defective on its face and was an absolute nullity, and the tax sale to the tax sale purchaser was nullified.

Succession of Liner, Louisiana Supreme Court

A Last Will and Testament is something that is particularly technical and has a number of very specific requirements. One of the requirements for a Last Will and Testament before a Notary Public is that the Last Will and Testament must contain an attestation clause that explicitly states that the person who signed the Will has declared or signified that he signed the Will “at the end of the testament and on each other separate page.” In Succession of Liner, the attestation clause said only that the testator “signed” the Will, but it did not specifically state that the testator signed it “at the end” of the document or “on each other separate page.” Even though it was the same signature of the testator on each page and at the end, and the attestation clause from the Notary contained the Notary’s statement that the testator did put that signature on the Will, the absence of the specific language covering the end of the testament and each other separate page rendered the Will absolutely null.

The Moral of the Story: Achieve Technical Compliance From the Outset

These are but a few examples of the many technical requirements that the law contains in the fields of real estate, taxation, trust and estates, mortgages and contracts. Lack of technical compliance can result in the invalidation of an important document, so clients should be glad when their lawyer is a stickler for details.

There is some hope. On the same day that Succession of Liner was decided, the Louisiana Supreme Court issued another opinion in a case called Succession of Bruce. In that case, the attestation clause did say that the testator had signed “on each page.” It did not specifically say that the testator has signed “at the end.” Nevertheless, the Supreme Court upheld this Will, ruling that the Notary had attested to the validity of the signature on each page, and that signature at the end of the document was on one of those pages. Even though there was a technical violation in this Will, the intended purpose of the law had been met, and the Will was upheld.

The moral of the story, however, is that it is far more desirable to achieve full technical compliance at the outset, so that one does not have to rely on a court to decide whether a document will be invalidated (as in Succession of Liner) or allowed to pass (as in Succession of Bruce).

Filed under: Commercial and Business Litigation, Commercial Real Estate, Industry News, Residential Real Estate, Title Insurance, Title Law
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