The recent floods have ravaged property, devastated lives, and impacted businesses. Much of the legal discussion surrounding the flooding in Louisiana will inevitably involve the ins and outs of flood insurance and FEMA assistance. But Elisabeth Prescott, an attorney for Kean Miller law firm, notes there are other legal implications of the disaster that require consideration, such as the rights and obligations of landlords and tenants in light of the damage and devastation.
Whether a landlord or tenant, Prescott advises, critical at this stage of the game is your knowing what Louisiana law provides by default, what your lease contract provides and where your lease is silent. The following are key points to keep in mind:
Where damage to the leased premises is so significant that the premises are considered totally destroyed, as is likely the case in many of the present instances, default law provides that the lease terminates by operation of law (i.e., without the need for judicial intervention), with neither party owing damages to the other [La. Civil Code art. 2714; see also Comment (d) to article 2714]. If the leased premises are only partially destroyed, the tenant may be entitled to diminution of rent until such time as the landlord can complete the necessary repairs or dissolution of lease, whichever is more appropriate under the circumstances” [La. Civil Code art. 2715].
Prescott suggests that during the cleanup process, both tenants and landlords should keep in mind the following:
In the aftermath of destruction to the leased premises, the landlord and tenant should communicate early, openly and clearly about the lease provisions and the parties’ respective intentions.
The landlord and tenant should discuss the condition of the property and, if possible and so long as the premises are structurally and environmentally sound, the landlord should attempt to provide tenant access to the leased premises to assess damage to and salvage the tenant’s movables. Where such is not possible, it is wise for the landlord to document his attempts to communicate with the tenant and to endeavor as best possible to document damage to the tenant’s movables so as to assist with tenant’s preservation of any insurance claims.
Landlords who did not have flood insurance or who may be underinsured should consider whether they may qualify for a Small Business Association loan for property or economic loss.
Reconstructing records after a disaster may be essential for tax purposes, securing federal assistance or insurance reimbursement. Records needed to prove loss may have been damaged or destroyed in a casualty. While it may not be easy, restoring financial data as quickly as possible may be essential for proving loss for tax purposes.
The IRS has disaster loss workbooks for individuals and businesses to help compile a room-by-room list of belongings or business equipment. This will help you recall and prove the market value of items for insurance and casualty loss claims.
Some potential sources of information to reconstruct financial data:
Get copies of invoices from suppliers. Whenever possible, the invoices should date back at least one calendar year.
Get copies of bank statements. The deposits should closely reflect what the sales were for any given time period. Obtain copies of last year’s federal, state and local tax returns including sales tax reports, payroll tax returns and business licenses (from city or county). These will reflect gross sales for a given time period.
Contact the title company, escrow company or bank that handled the purchase to obtain copies of escrow papers. Your real estate broker may also be able to help. Check with your mortgage company for copies of any appraisals or other information they may have about cost or fair market value. Also check with appraisal companies to locate a library of old multiple listing books. These can be used for “comps” to establish a basis or fair market value. Most insurance policies also list the value of the building to establish a base figure for replacement value insurance.
Sketch an outline of the inside and outside of the business location. Then start to fill in the details of the sketches. Document what equipment was where, and, if you are a retail establishment, where the products/inventory were located. Outside the building, document shrubs, parking, signs, awnings, etc. If you purchased an existing business, go back to the broker for a copy of the purchase agreement. This should detail what was acquired. If the building was constructed for you, contact the contractor for building plans or the county/city planning commissions for copies of any plans.
The IRS can provide valuable financial data. Immediately after a casualty, you can request a copy of a return and all attachments (including Form W-2) by using Form 4506, Request for Copy of Tax Return (PDF). If you just need information from your return, you can order a transcript by calling (800) 829-1040 or using Form 4506-T, Request for Transcript of Tax Return (PDF). There is no fee for a transcript. Transcripts are available for the current year and returns processed in the three prior years.
The IRS has a self-study section of its web site which includes Disaster Assistance. One section includes record reconstruction.
Emergency Salvage of Moldy Books and Paper (Northeast Document Conservation Center):
Connecting to Collections webinar on Mold:
(Just click on the green "Access Session Recording" at the bottom of the page to listen to the webinar. You will be asked to enter in your name, organization, position, and email, and then the webinar will open.)