Summary of Frequently Cited Law for Landlord and Tenant Cases in Pennsylvania and Philadelphia County

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1 Summary of Frequently Cited Law for Landlord and Tenant Cases in Pennsylvania and Philadelphia County Security Deposits- see Pennsylvania Landlord and Tenant Act of 1951, 68 P.S. ' , et. Seq. Residential security deposits in Pennsylvania are regulated by the Landlord-Tenant Act (68 P.S and ). A security deposit is not the same as rent. It is money that actually belongs to the tenant, but is held by the landlord for tenant-caused damages and sometimes past-due rent. Without the agreement of the landlord, a security deposit may not legally be used as the last month's rent. Pennsylvania law places a limit on the amount of a security deposit that a landlord may require. During the first year of a lease the landlord may not require a security deposit of more than two months' rent. At the beginning of the second year of a lease the landlord may not keep a security deposit equal to more than one month's rent and must return any money greater than one month's rent still being held as a deposit. After five years the landlord cannot increase a security deposit even if the monthly rent is increased. The Landlord-Tenant Act of Pennsylvania also regulates where residential security deposits must be kept and when interest payments on the security deposits must be made to the tenant. The security deposit must, however, be greater than $100 or this part of the law does not apply. Security deposit monies in excess of $100 must be deposited by the landlord in an approved bank, and the tenant must be notified in writing where the bank and deposit is located. Beginning with the third year of a lease the landlord must put security deposits over $100 in an interest-bearing bank account. At the end of the third year the landlord must start giving the tenant the yearly interest that is received from the bank, less a 1 percent fee that the landlord may keep. The landlord does not have to pay interest to the tenant during the first two years of the lease. A landlord may put up a bond instead of depositing security deposits in an escrow account. This bond is intended to guarantee that the tenant will get back the deposit with interest at the end of the tenancy. If the tenant moves out on time and gives a forwarding address to the landlord, the landlord must respond to the tenant within 30 days after the tenant moves out. After the tenant moves, the landlord is required to give the tenant a written list of any damages. (Reasonable wear and tear is not damages). The landlord must then refund the security deposit less the cost of the repairs on the list. If the landlord fails to do this, the tenant cannot be sued for any damages the landlord claims the tenant caused. In addition, if the landlord does not give the tenant this 30-day response, the tenant may sue for double the amount of the security deposit. In order to be able to sue for double the deposit, the tenant must give the landlord written notice of his or her new address once the tenant has moved out.

2 JARA Saving Clause,(applicable to L & T Act), 42 Pa. C.S The Judiciary Act Repealer Act (JARA), 42 Pa. C.S.A (a) [1271], apparently repealed most of the provisions of the Landlord and Tenant Act of 1951 governing eviction, 68 P.S , et. seq. However, these provisions remain in effect under the saving clause of JARA 42 Pa. C.S.A (b). Most of the provisions governing evictions have been incorporated into the Pennsylvania Rules of Civil Procedure for District Justices No. 501, et. seq. There may be some variation from locality to locality in the time periods that elapse from the date of filing a complaint until a hearing can be scheduled. These variations are consistent with the grant of powers to local courts under 42 Pa. C.S.A. 323 and Pugh v. Holmes, 405 A.2d 897 (1978); [Implied Warranty of Habitability] The Pennsylvania Supreme Court joined the Pennsylvania Superior Court in holding that leases are contracts to be controlled by principles of contract law. Pugh v. Holmes, 284, 405 A.2d 897, 903 (1978). Rejecting the common law property rule of independent covenants, the Pugh Court ruled that the basic contract principle of dependency of covenants/obligations now applies: The covenants and warranties in the lease are mutually dependent; the tenant's obligation to pay rent and the landlord's obligation imposed by the implied warranty* of habitability to provide and maintain habitable premises are, therefore, dependent and a material breach of one of these obligations will relieve the obligation of the other so long as the breach continues, Pugh, supra. Three months after adopting the implied warranty in Holmes, the Pennsylvania Superior Court extended it in Fair v. Negley, 257 Pa. Super. 50, 390 (1978). There, in defense to his former tenants' complaint for recovery of all past rent paid, excessive utility bills and intentional infliction of emotional distress, the landlord raised objections, invoking a clause in the written lease stating that tenants took the property in "as is" condition and knew the roof leaked. In a decision written by then Justice P.J. Jacobs, Superior Court held, on the waiver issue, that the lease provision was invalid as it violated of public policy, and that the implied warranty in the lease cannot be waived. Fair, supra, at 53, 60, 390 A.2d 240, 242, 245. See also Lucas v. Gutierrez, 313 Pittsburgh L.J. 313 (1986). The court concluded that "an attempted waiver of the implied warranty of habitability in residential leases is unconscionable and must be held to be ineffective." Fair, supra.

3 *Under the implied warranty of habitability the tenant has an obligation to pay rent and the landlord has an obligation to maintain habitable [safe, sanitary and fit] premises depend upon each other. If the landlord breaks his or her obligation to keep the premises in a reasonable fit condition, this may relieve the tenant from his obligation to pay part or all of his rent until the landlord makes all necessary repairs. The landlord must be given notice of needed repairs and a reasonable opportunity to make repairs, but he does not have to promise to repair before the tenant may withhold rent. The warranty of habitability is required by law in all leases (oral and written). Fair v. Negley, 390 A.2d 240 (1978); [Warranty of habitability cannot be waived by lease provision.] Three months after adopting the implied warranty in Pugh v. Holmes, 405 A.2d 897, 903 (1978), Pennsylvania Superior Court extended it in Fair v. Negley, 390 A.2d 240 (1978). There, in defense to his former tenants' complaint for recovery of all past rent paid, excessive utility bills, and intentional infliction of emotional distress, the landlord raised objections, invoking a clause in the written lease stating that tenants took the property in "as is" condition and knew the roof leaked. In a decision written by then Justice P.J. Jacobs, Superior Court held, on the waiver issue, that the lease provision was invalid as violative of public policy, and that the implied warranty cannot be waived. Fair, supra, at 53, 60, 390 A.2d 240, 242, 245. See also Lucas v. Gutierrez, 313 Pittsburgh L.J. 313 (1986). The court concluded that "an attempted waiver of the implied warranty of habitability in residential leases is unconscionable and must be held to be ineffective." Fair, supra, at 60, 390 A.2d 240, 245. Depaul v. Kauffman Pa., 272 A.2d, 500 (1971); [Upholds constitutionality of Pennsylvania Rent Withholding Act.] In operation, the Rent Withholding Act, 35 P.S , allows tenants whose leased premises are declared to be Unfit For Human Habitation by an authorized code enforcement agency to escrow rent with an approved escrow agent. Rent is to be deposited in escrow monthly for a period of six months- or until sufficient repairs are made by the landlord or tenant to justify the removal of the unfit designation- whichever comes first. If the Unfit designation is not removed after six months, all funds then in escrow are returned to the tenant to keep. A new six-month period then begins and the process repeats itself at six-month intervals until, if ever, the unfit designation is removed. If the premises are removed from unfit status before the end of any six-month period the landlord is given all of the funds then held in escrow. During the period of 'unfitness' the tenant may withdraw from the escrow account such funds as are necessary to make repairs and/or pay for utilities which are the landlord's responsibility but for which he or she refuses to pay. Although not stated in the Act, a property which is Unfit solely because of the lack of a utility should remain Unfit even

4 though the tenant has used the escrowed rent to have the utility restored, otherwise, the tenant would lose the right to use the rent for the utility if the Unfit designation were lifted. The Unfit designation should only be removed when the landlord resumes the obligation to pay for the utility. The Utilities Service Tenants Rights Act should, however, provide tenants with necessary protection should the Unfit designation be lifted before the landlord resumes payment for the utility. Tenants cannot legally be evicted for any reason whatsoever, including nuisance and waste, while their escrow payments are current. Leases, oral or written, are extended as necessary until the unfit designation is removed. The Act is remedial insofar as it allows a tenant to use the escrowed rent to make repairs, and punitive insofar as it penalizes a landlord for allowing the premises to fall into such a state of disrepair by depriving him or her of any profits from the premises. * Please note however, that in light of the comprehensive nature of the remedies provided by Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979) there are few instances in which an application of the Rent Withholding Act would be preferred. Certificate of Rental Suitability- Title 4, Philadelphia Code, Sub-code PM, Section In March, 2006 the Certificate of Rental Suitability Ordinance became law. It became effective in September The Philadelphia City Ordinance identified as Title 4 of the Philadelphia Code, Subcode PM, section , requires that a landlord, prior to renting a residential property in Philadelphia, obtain from the Department of Licenses and Inspections a certificate stating that there are no recorded code violations on the property. The landlord must also attest that all fire protection and smoke detection equipment is in proper operating order and in compliance with the Philadelphia Code; that the property is free from defects that affect the habitability (livability) of the property, and that the landlord will continue to maintain the property in the future, free of any defects that affect the habitability (livability) of the property. The landlord must provide a copy of the certificate to the tenant. If the landlord fails to comply, the Ordinance provides that the Landlord shall not be allowed to recover possession of the property or collect rent during the period of time he/she is in violation of the Ordinance. Unlawful Lockouts- Chapter Prohibition Against Unlawful Eviction Practices It is illegal for a landlord to lock out a tenant without a Sheriff or Landlord-Tenant officer. The landlord may not evict any tenant unless they have followed the legal process and obtained a Writ of Possession and/or an Alias Writ of Possession. It is also illegal for any landlord to try to evict tenants by force, by turning off their utilities, by removing their possessions, by boarding up their doors or windows, or by any other means designed to force the tenant to vacate their home, unless the legal eviction process has been followed.

5 To evict a tenant legally, a landlord must win a judgment in Municipal Court or the Court of Common Pleas, and then obtain a Writ of Possession and/or an Alias Writ of Possession. If there is no evidence of an Alias Writ of Possession or Writ of Possession, the landlord may not evict the tenant. If a landlord, or their agent(s), insists that a tenant should be evicted without providing evidence of Writs the tenant can double check by telephoning the Philadelphia Municipal Court Judgment and Petition Unit. The court can usually tell the tenant if the landlord received a judgment in court which would allow an eviction, as well as, if and when the Writs of Possession were issued. If there is no proof the landlord obtained an Alias Writ or Writ of Possession through the legal process, the lockout may be illegal and the tenant may have the right to return to his or her home. Using the Police A City Ordinance directs the police in Philadelphia to help tenants faced with illegal lockouts, or any action defined as a self-help eviction. The law is Philadelphia Code It was passed by Philadelphia City Council in November In addition to defining illegal lockouts, the ordinance also defines self-help evictions as follows: Such self-help eviction practices include, but are not limited to, the following activity: plugging, changing, adding or removing any lock or latching device to a dwelling unit or otherwise blocking access to the unit; removing windows and doors from a dwelling unit; interfering with utility services to the unit, including, but not limited to, electricity, gas, hot or cold water, heat, or telephone service; forcing a tenant to vacate by the use of force or threat of violence or injury to a tenant s person or property; by engaging in any other activity or pattern of activity rendering a dwelling unit or any part thereof inaccessible. If a landlord locks a tenant out illegally or engages in a self-help eviction practice, the tenant may call 911. A police officer should respond to any complaint about an illegal lockout or self-help eviction. The officer may ask a tenant to prove there is a written lease between the tenant and the landlord. If there is no written lease, a verbal lease may still exist, and that may be established if the tenant is able to produce a rent receipt, or other proof of payment to the landlord. If the landlord is present, the police should ask the landlord for a copy of the Alias Writ of Possession or Writ of Possession that was served by a sheriff or a landlord tenant officer. If the landlord cannot produce any kind of Writ, the police should inform the tenant that they are entitled to re-enter their home, and tell the landlord to restore access, turn on the utilities, etc., or face arrest for violating the anti-lockout ordinance. If the landlord refuses to let the tenant back in, or restore utility service, etc., the law directs the police to take the landlord into custody and issue a summary offense citation. This may result in a criminal hearing. It is possible that a police officer who responds to a tenant s complaint may not be familiar with the law. The tenant should be sure to get the name of the police officer, call

6 the officer s district- or preferably go to the district- and ask to speak to the shift commander or community relations officer. The tenant should tell that officer what happened and ask that the lockout ordinance, Philadelphia Code , be enforced. Brown v. Brown 164 Pa. Super. 350, 64 A.2d 506 (1949)[Notice to vacate must be clear and unequivocal, not conditional] Green v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249 (1982) [Service of complaints by posting does not constitute a method of service calculated to ensure that a tenant receives notice of a hearing] Provident Credit Corp. vs. Young, 446 A.2d 257 (1982) [Petitions to Open Judgment] Anderson Contracting Co. v. Daugherty, 417 A.2d 1227 (1979) [Lease Purchase Agreements] Penalty Clauses in a Lease [liquidated damages/ late fees] Lenair v. Campbell, 31 D&C 3d 237 (1984) [Unlawful Lockouts] Wofford v. Vavreck, 22 D&C 3d 444 (1981) [Unlawful Lockouts] Finkle v. Gulf & Western Mfg. Co.,744 F.2d 1015 (3d Cir.) (1984) [Late Charges] Parkview Apartments v. Carr, 11 D&C 3d 791 (1979) [Attorney Fees] In re Wilson's Estate, 349 Pa. 646., 37 A.2d 709 (1944) [Definition of a lease] Pagano v. Redevelopment Authority, 249 Pa. Super. 303, 376 A.2d 9 (1977) [Conduct can create a lease] Davis v. Hartel, 56 Pa. 544 (1914), [Leases for rooms or parts of a House] Lead Paint Ordinances Lead Paint Disclosure Ordinance- Title 6, Philadelphia Code, Section Lead Paint Anti-Retaliation Ordinance- Title 6, Philadelphia Code. Section (5)

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