This move is a violation of basic separation of powers principles that you may remember from 6th Grade Social Studies. The Governor and Attorney General are both members of the Executive Branch. The Executive branch carries out the laws. It does not make law and it never tells the other branches how to operate. This Order is the Executive Branch telling the Judicial Branch how to run the Court system.
One of the infuriating things that the order does is tell courts how to calculate time. We have never seen this occur before. While the average person is likely not aware of this, the calculation of time for legal filings is an important part of the legal system. A good lawyer is aware of that time and how it is calculated as a late filing may permanently cost a client their rights. The Pennsylvania Courts have put together a system of calculating time. If time is ever to be extended, it is for the Courts to do, not the executive.
The U.S. Constitution, on which the PA Constitution is modeled, specifically designed an independent judiciary for a very good reason – to prevent an executive from blocking citizens from enforcing their rights.
The Governor and Attorney General are parties that regularly appear before the courts of Pennsylvania. Parties to court cases do not get to make court rules. We can’t think of an example where something like this has ever occurred before.
The Governor’s order is also poorly thought out for multiple reasons:
- The order appears to be focused on tenants who have not paid rent. Does the order allow for evictions for other lease violations such as damage to the premises? It is unclear.
- The order does not take into account the fact that many leases will have naturally ended in the past few months. Is a landlord allowed to evict a tenant whose lease has ended? It is unclear.
- The order prevents landlords from serving “Notices to Quit.” That’s the method its using to block evictions. However, many tenants have waived the “Notice to Quit” requirement. There is a very good argument that evictions can proceed against Tenants who have waived the Notice to Quit requirement.
- The order applies to both residential and commercial property. Even the PA Supreme Court did not go this far in their order. Did the Governor actually intend for this result?
- The order only blocks proceedings under the landlord/tenant act. The order does not recognize that there are other ways to dispossess a tenant from a property.
If this order stays in place, a large number of landlords will have tenants who will not have paid April, May, June or July rent before eviction proceedings can even begin. If eviction proceedings begin on July 11, a delinquent tenant will not likely be locked out until early September. A landlord will have missed 6 months of rental payments and will likely be struggling to pay his own mortgage and bills and property taxes. It should be noted that the current order DOES NOT extend property tax deadlines or relieve those obligations.
There is some hope that the Pennsylvania Supreme Court will act to address this order, but there is no guarantee that will occur.
In response to the order, we are strongly encouraging landlords to do the following:
- As discussed in a prior post, attempt to negotiate a repayment plan with the tenant and get a written agreement,
- If the Tenant will not agree to a reasonable repayment plan, or there is a serious lease violation, such as substantial damage, proceed with an eviction.
- Once the Judicial Emergency ends, Magisterial District Judges must accept Landlord Tenant complaints. The Governor’s Order does not and cannot prevent a judge from accepting a complaint. A judge must promptly schedule a hearing on a landlord tenant complaint.
- At the hearing, be prepared to argue that the Governor cannot tell the Courts how to operate. Also, if there are other reasons to evict, be prepared to argue that the Governor’s order is only written for non-payment of rent situations.
- Be prepared to appeal to the Court of Common Pleas if the Magisterial District Judge will not determine the case on the merits.
Even if the Pennsylvania Supreme Court never addresses this executive order, the Courts of Common Pleas can still address it. A positive ruling from one Court of Common Pleas may serve to help landlords throughout Pennsylvania.
One final note, I did not mention in my last post the fact that landlords can garnish a tenant’s wages. It is possible for a landlord to get a money judgment against a tenant and then to get a court order permitting that money judgment to be directly paid to the Landlord from the Tenant’s employer. This is one other way that a Landlord can get additional security for a payment by a delinquent tenant. A landlord and tenant could agree to this payment arrangement to resolve delinquent rent.
If you or someone you know has a landlord-tenant matter, contact us today to discuss your rights!