Hurricane Katrina: Legal Issues - Columbus School of Law

Most leases provide that when a tenant abandons the property, a landlord may retake possession of the property.
Under emergency circumstances, where communication may be limited, it may be difficult to determine the point at
which a tenant has abandoned the property. Tenants should make every effort to contact a landlord about plans for
return, and landlords should take care not to act too hastily in seeking eviction. When it is reasonable to assume that
a tenant’s failure to return is no longer because of inability to return to the disaster area, the landlord may seek
eviction and possession after giving the proper notices for the required period of time. The Mississippi Code includes
a procedure in the general (non-residential) landlord-tenant statutes for removal of a deserting tenant. Miss. Code
Ann. § 89-7-49. However, it is not clear whether this section is preempted by the Residential Landlord and Tenant
Act provisions for eviction.
Eviction
What procedure must a landlord follow to evict a tenant for nonpayment of rent?
A landlord must give the tenant a three day notice, in writing, to evict for nonpayment of rent. The notice must state
that the tenant must pay rent or vacate possession. Miss. Code Ann. § 89-7-27. If the tenant does not pay in three
days, the landlord may file an eviction action in justice court and obtain an order of eviction.
What can a tenant do to stop an eviction for nonpayment?
If the tenant brings the rent current before the court enters judgment, the landlord may not evict the tenant. The
landlord may not refuse to accept full rent payment prior to the court order. Miss. Code Ann. § 89-7-45.
Are there any defenses to eviction for nonpayment?
If a tenant has properly requested repairs which were not made, the tenant may be entitled to a reasonable offset of
rent for the failure to repair. In addition, if the tenant has made repairs after a proper request pursuant to Miss. Code
Ann. § 89-8-15, the tenant is entitled to an offset in amount of rent due. However, the offset will not stop the
eviction unless the amount owed by the landlord as damages for failure to repair is greater than the amount of rent
owed by the tenant.
In addition, a landlord may not evict a tenant in retaliation for a tenant’s request for repairs, evict a tenant for a bad
faith reason, or evict based on discrimination on the basis of race, sex, disability, national origin, or because the
tenant has children.
What must a landlord do to evict for breaches other than nonpayment?
A landlord may evict a tenant for other breaches of the lease or for damages to the property or disturbances. The
landlord must give the tenant a thirty day written notice of eviction which must (1) state specifically the tenant’s
breach; and (2) state that the lease will terminate in 30 days if the tenant has not remedied the breach in some way.
Miss. Code Ann. § 89-8-13(3). The landlord must give the tenant notice of his right to cure the breach, and if the
tenant does cure the breach, the landlord may not seek eviction. However, no notice is required to terminate a tenancy
if the tenant commits a substantial violation that materially affects health and safety. Miss. Code Ann. § 89-8-19(4).
A tenant has a defense to eviction if the primary reason for the eviction is the landlord’s retaliation against the tenant
for exercise of rights under the Act, such as requesting repairs. In addition, a landlord is required to act in good faith
in terminating a tenancy or refusing to renew a lease. Miss. Code Ann. § 89-8-9.
May a landlord evict without going through court?
Landlords occasionally attempt to evict tenants without going through the court eviction process, either by locking the
tenant out or by putting the tenant’s belongings on the street. Self-help eviction is permitted in Mississippi ONLY if