An unprecedented time in Pennsylvania law will be occurring in the next few weeks.
For the past six weeks, Pennsylvania has been under work restrictions which have led to record numbers of employees being laid off or furloughed. This has led to tremendous numbers of tenants who have not paid rent for April or May.
The Pennsylvania Supreme Court has issued an emergency order suspending residential evictions during the state of emergency. The general state of emergency is set to end for May 11. Individual counties may extend the state of emergency after that date.
This means that on May 11, or shortly thereafter, a large number of landlords will have to decide whether to begin eviction proceedings, and a large number of tenants will be facing those proceedings.
Pennsylvania eviction procedures are partially governed by statute and partially governed by court rules. That means that the Courts of Pennsylvania can choose to modify those rules to assist tenants. There have been a number of suggestions that Courts will be taking steps to try to give tenants an opportunity to catch up on rent.
This post is written to give both landlords and tenants an explanation of their rights and some tips as to dealing with the situation.
Landlords and tenants should keep in mind that a lease can be modified at any time. The courts will be expecting landlords and tenants to talk and to try and renegotiate lease terms. We strongly suggest that landlords and tenants attempt to talk about the situation before anything is filed in court. If a lease is going to be modified, that modification should be in writing.
Landlords should keep in mind that millions of individuals have not received their government stimulus payments yet. When a Tenant receives that money, they may be able to pay the past due rent. Additionally, the Pennsylvania Unemployment system is overwhelmed. Many individuals who are eligible for unemployment payments are not receiving unemployment benefits yet and will likely receive a lump sum payment in the near future that will cover weeks of unemployment benefits. We are familiar with individuals who applied for unemployment over a month ago who have yet to receive a payment.
Landlords and tenants should also know that a landlord cannot practice self-help. That means that the only way a tenant may be evicted is for the landlord to obtain an eviction order and for a court officer such as a constable or sheriff to carry out the order. A landlord may not change the locks without a court order. A landlord may not cut off utilities or services. A landlord may not seize a tenants property unless it has been abandoned by a tenant.
Tips for Landlords
1. A landlord who cannot resolve delinquent rent with a tenant, should inspect the rental property before taking any legal action. Landlords have the right to inspect their rental property with reasonable advance notice to the tenant. Pennsylvania does not place a time period on advance notice, but 48 hours is generally considered to be fair notice. If the landlord observes a significant lease violation, such as damage to the premises, that will provide a second ground to evict. The landlord should take pictures of any damage that is observed.
2. Under Pennsylvania law, by default, all residential evictions begin with a notice to quit. That notice can be waived in writing by a tenant. A notice to quit must be served on a tenant by posting the notice on the door of the premises or by handing it to the tenant. Notices to quit by mail are not valid unless a tenant has agreed to receive the notice by mail in advance. A notice to quit must give a tenant 10 days notice if they are being evicted for non-payment of rent; 15 days notice if they are being evicted for other reasons and have a lease of up to one year; 30 days if the tenant is being evicted for other reasons if the lease is more than one year. There is no set form for a Notice to Quit, however the notices are generally expected to contain the date that they are issued, the date the tenant has to leave and the reasons for the eviction.
3. While a landlord cannot file an eviction action during the emergency, the landlord could serve a notice to quit during the emergency.
4. If the tenant fails to leave by the end of the notice period, the landlord must then contact the local Magisterial District Judge and file an eviction complaint. In the complaint the landlord should specifically state the amount of rent and unpaid fees that are due. They should also list other violations of the lease, such as damage to the property.
5. There will be a hearing on the complaint. The judge will almost definitely attempt to mediate the unpaid rent. The Landlord should carefully consider whether he will accept a payment plan to get caught up on the unpaid rent. The hearing will be more productive if the Landlord has a definite plan for what they would accept in terms of payments.
6. At the end of the hearing, if the only issue is the unpaid rent, the Court can issue an order permitting the Tenant to get caught up on rent. The judgement order will state “Grant possession if money judgment not satisfied by the time of eviction.” This is commonly known as a “pay to stay” order. If a Landlord acts as quickly as possible, it will give a Tenant 20 days from the date of judgment to get caught up on rent. If the Tenant gets caught up, they get to stay.
If there are other lease violations, the Tenant will not get the chance for a pay to stay.
7. Between 10 and 120 days after judgment, the Landlord may request an order of possession from the Magisterial District Judge. The order of possession gives a Tenant 10 days to vacate the property. An order of possession may only be served and executed by a constable or sheriff. So, the earliest a tenant may be locked out is 21 days after judgment.
8. A Tenant has 10 days to appeal the judgment. The appeal must be served on the Landlord and the court by personal service or certified mail within 10 days of the filing of the appeal. The Tenant must file a certificate of service by the end of the 10 day period. These time periods are strict. If a Tenant fails to timely appeal, or fails to properly make service, the appeal can be voided and the original eviction will be reinstated. A Landlord should carefully review these filings as voiding an appeal can save the Landlord a lot of time and money.
9. At the time of appeal, a Tenant is required to pay the lesser of 3 months rent or the actual amount due to the Prothonotary. All monthly rental payments will be made to the Prothonotary after this. If a Tenant fails to make the required payment on time, the appeal can be voided and the original eviction will be reinstated. A landlord should carefully review these payments as being late by a day will void the appeal and save the landlord a lot of time and money.
Indigent tenants can pay a lesser amount. An indigent tenant is allowed to pay 1/3 of the rent due at the time of filing the appeal. They must then pay 2/3 of the rent due within 20 days. Indigent tenants must then pay their full monthly rent every 30 days thereafter. Individuals who have been laid off may be eligible for the indigent tenant program
Any money that Tenants pay into the Prothonotary may be released to landlords, however, the landlord must make such a request.
10. Landlords will then have to file a written complaint and will have to request the matter be scheduled for a trial. It is difficult for a non-attorney to handle Court of Common Pleas proceedings and it is recommended that Landlords consult with an attorney under those circumstances.
Tips for Tenants
1. As stated before, Tenants should talk to a Landlord about their financial situation before they are served with a Notice to Quit. A Tenant should give a landlord a good faith proposal to get caught up on rent and sign a written agreement. If things cannot be resolved that way, the Tenant should prepare to resolve the case through the Courts.
2. The Tenant should make sure that the residence has been properly cared for and that there is no significant damage caused by the Tenant. The Tenant should thoroughly clean the residence and take pictures.
3. If the Tenant is taken to Court, the Tenant should arrive early and attempt to talk to the Landlord. They should make sure that they were properly served with a Notice to Quit as described above. If a Tenant was not properly served, they should bring that to the attention of the Judge. An eviction case can be dismissed for failing to properly serve a Notice to Quit. The Tenant should be prepared to make a good faith repayment proposal to the Judge and the Landlord. The Magisterial District Judge will likely want the parties to talk and try and reach an agreement. However, the Magisterial District Judge cannot force the parties to accept a repayment plan. If the Landlord accepts the repayment proposal, the parties can draw up a written agreement in Court. The Court can reschedule the eviction hearing for several months into the future to see if the Tenant has kept to the repayment plan.
If the parties cannot reach an agreement and the Tenant thinks they can pay off the amount due within 21 days, the Tenant should request that the Court order “pay to stay” as part of its order. The Tenant should expect the Landlord to provide details as to how the amount due was calculated at the hearing.
4. Some leases have a rent acceleration clause. That clause states that if a Tenant violates a lease, the Tenant can be held liable for all rent remaining due through the end of the lease. These clauses are only partly enforceable. A Landlord cannot get both rent though the end of the lease term and possession of the premises. If a landlord wants a judgment for rent through the end of the lease, he must allow the Tenant to remain through the end of the lease. If a landlord wants possession, his right to collect rent ends on the day the Landlord takes possession.
5. If Judgment is entered against a Tenant, the Tenant has 10 days to appeal. That time period is a strict time period. The appeal requires payment of an appeal fee and payment of at least part of the rent that is due. A Tenant should review whether he has to pay the full amount required at the time of filing or whether he is eligible for the indigent Tenant program. A Tenant might also be eligible to have the filing fees waived, which is known as filing In Forma Pauperis (IFP).
The appeal rules also require that the Tenant properly serve the Court and Landlord in person or by Certified Mail within 10 days of filing the appeal. A certificate of service must be filed within 10 days. Failing to strictly follow these steps may void the appeal, meaning that the Landlord can move ahead with the eviction. Forms for the Appeal are available on the internet and from County Prothonotary Offices.
6. After the appeal is filed, the Tenant must make monthly rent payments on time to the Prothonotary. Do not continue to make payments to the Landlord. Failure to make a rental payment on time means that the appeal may be voided and the Landlord can move ahead with the eviction.
7. Once the appeal has been filed, the parties can continue to discuss the situation and attempt to arrive at an agreement.
8. A Tenant who moves out must provide the Landlord a forwarding address if he wants his security deposit back. Within 30 days of a Tenant moving out, a Landlord must provide a Tenant their security deposit back or a written statement as to why some or all of a security deposit will not be returned. A Landlord may withhold a portion of the security deposit to cover unpaid rent. A Landlord may withhold a reasonable portion of the rent to cover extraordinary damages. A Landlord may not withhold a portion of the security deposit to cover normal wear and tear on a rental property unless the Tenant has agreed to a cleaning charge as part of a lease.
9. If a Landlord fails to return the security deposit or a written statement within 30 days of the Tenant moving out, the Landlord can be sued before a Magisterial District Judge for double the amount of the improperly held security deposit.
10. A Landlord is also required to hold any Tenant’s property that is left behind after a Tenant moves out. A Landlord must send the tenant a notice about the property and then wait 10 days. If the Tenant does not contact the Landlord, the Landlord may dispose of the property. If the Tenant does contact the Landlord, the Landlord must keep the property for at least another 30 days from the notice, but the Tenant is responsible for reasonable storage costs. A Landlord that disposes of Tenant property without following the law will have to pay triple the amount of the value of the disposed items, plus court costs and attorney fees.
UPDATE: 5/7/2020 – see, Governor Wolf and Attorney General Shapiro Attempt to Prohibit Evictions and Foreclosures
If you or someone you know has a landlord-tenant matter, contact us today to discuss your rights!