For those who are not able, or who
choose not to, purchase a home, it is very likely they will rent or
lease a residential property of some type. Indeed, if you are in an
area for only a short time, it maybe better to rent or lease, as is
generally the case with college students.
The first thing we need to do is to
define a lease. A conveyance of lands or tenements to a person for
life, for a term of years, or at will, in consideration of a return
of rent or some other recompense. The person who so conveys such
lands or tenements is termed the “lessor,” and the person to whom
they are conveyed, the “lessee;” and when the lessor so conveys
lands or tenements to a lessee, he is said to lease, demise, or let
them. Black's Law Dictionary Online, 2d Edition. A residential
lease would be for a residence. In layman's terms, it is a contract
where one persons agrees to pay rent to another for the opportunity
to live in a house, apartment, mobile home or some other place to
live. The contract may also require security deposits in case there
is damage, it may allow use of common areas such as yards or parking
spaces, and it may include some utilities such as heat, electric or
cable. All in all, a lease as a contract can be a varied as the
parties can imagine.
However, there are many common
features. First, of course, is a grant of a property for a period of
time. Usually this is a year, but it could be a month or even a
week. In some cases, it may be nine months. Second, there is a
rent. This is usually paid monthly, but can be paid weekly. Rarely,
a rental is paid annually or semi-annually. Third, there are
provisions for who pays utilities. Again, these can be split any
number of ways. Next, there is likely to be some provisions for what
is called “quiet enjoyment”. This essentially means the landlord
will leave you alone. Most of the time there is a right to inspect
at reasonable times, but in general the leased property is yours to
use. Because of this, it is
very common to charge one month's rent
and a security deposit equal to one month's rent up front. If a
tenant refuses to pay, or causes damage, the security can be withheld
by the landlord. Next, there are always provisions for termination
or default. Some are very complicated and include formulas in case
of condemnation and damage by fire or flood. Some are very simple
and just say the lease can be terminated with mutual consent. Most
contain some form of acceleration provision that if a tenant fails to
pay rent, all the rent for the whole term of the lease becomes due.
So if there is a lease for $100.00 per month for one year and the
tenant fails to pay, the acceleration clause comes into play and the
tenant will owe $1,200.00 all at once.
This is all general, and leases in the
Commonwealth are governed by the Landlord Tenant Law of 1951, 68 P.S.
Sections 250.101-250.602, as amended. One could easily say this Act
actually is about how the Landlord can collect his rent. Section
250.103 discusses provisions excluded from the Act, and virtually all
of those provide preference for rent in case of execution (subsection
1, 2, 3), providing for the preference of rent in insolvency,
assignments for the benefits of creditors and bankruptcy (subsection
4); providing for the preference of rent in the case of estates
(subsection 5). Tenants are given some relief in that they may
recover real estate taxes from the landlord if they are required to
pay them to keep from losing their leasehold (subsection 6).
However, the remaining subsections relate to fixing the rights of
landlords with regard to stopping waste, dealing with ejectments,
special proceedings for sales between landlords and tenants and
fixing fees for proceedings in landlord tenant disputes.
The crux of the matter, is that little
protection is provided the tenant.
Leases for not than more than three
years may be oral or written. 68 P.S. 250.201. Tenants of such
short leases therefore have no written document they can rely upon
and are at the mercy of the testimony of the landlord or their
agents. The fact any lease more than three years must be in writing
is scant protection, given the fact most residential leases are year
to year. Although Section 250.204 indicates a tenant may mortgage
their lease, this is practically impossible in the case of a
residential lease. Just as importantly, it would simply turn the
tenant into a debtor. The benefit of such a provision is in the case
of a mobile home or other configuration which allows for a tenant's
association. In these instances, a longer term lease, more in line
with the term of the purchase of a mobile home for instance, could be
financed. Section 250.205, in fact, protects tenants which form
tenant's organizations or associations.
Another benefit extended to tenants is
the ability to escrow rent whenever a building is certified as
uninhabitable by an agency or department. 68 P.S. Section 250.206.
This is, of course, in accordance with the act of January 24, 1966
(1965 P.L. 1534, No. 536), referred to as the City Rent Withholding
Act. The tenant in this case can receive interest and a monthly
statement of the escrowed funds. This is actually a codification of
the common law wherein a tenant could withhold rent. The difference
being under the common law, a tenant risked proceedings for the rent
almost immediately.
However, Article III, starting with
Section 250.301 sets out the special rules for recovery of rent by
assumpsit and distress. These rules are virtually all in the
landlord's favor. A landlord or his agent may give written notice
that personal property not eempted may be seized in execution and
sold. 68 P.S. Section 250.301, 250.302. The class of persons who
can avail themselves of these remedies is expansive. See, 68 P.S.
Sections 250.303 and 250.304. If the tenant tries to remove property
after being served with a notice that their personal property is to
be sold, a landlord has the right to seize the property whereever it
can be found within 30 days. 68 P.S. Section 250.305.
A tenant does have the right to
determine set off, but that again is simply a common law principle.
68 P.S. Section 250.307. After such a proceeding, the landlord can
still proceed if the net amount determined is due the landlord. The
only recourse is that if the personal property brings more than the
rent, the landlord must account to the tenant for the excess.
Interestingly, if a landlord is aggrieved by a tenant removing
property, the landlord may recover triple damages. 68 P.S. Section
250.311. However, if a landlord wrongfully distrains property when
no rent is due, the tenant may recover double damages. 68 P.S.
Section 250.313.
Tenant's are entitled to exemptions.
There is first a $300.00 exemption for virtually any proeprty. 68
P.S. Section 250.401. There is then an exemption for wearing
apparel, Bibles and school books, all sewing machines and other tools
of trade, and all uniforms, arms, ammunition and accoutrements of any
commissioned officer or enlisted personnel of the National Guard or
armed forces. 68 P.S. Section 250.402. There is a laundry list of
exemptions for property leased to others or in which others have a
security interest such as pianos, melodians and organs; soda water
apparatus; sewing machines and typewriters; electric motors; ice
cream cabinets; household furniture and goods; shoe repair
machinery and tools; beauty and barbershop furniture and equipment;
vending machines; restaurant and bar furniture and equipment; meat
market and grocery store equipment; and industrial mining and
construction machinery and equipment not attached to the realty. 68
P.S. Section 250.403. Finally, there are exemptions for property not
actually owned by the tenant, but which may be in their possession,
such as items held by the tenant for someone else in the course of
trade or as a consignee. 68 P.S. Section 250.404.
Article V describes the procedure for
recovery of possession. Mobile Homes have their own special law, the
act of November 24, 1976 (P.L. 1176, No. 261), 68 P.S. 398.1, et
seq., known as the “Mobile Home Park Rights Act” and is not
within the purview of this blog. Essentially, if the tenant fails to
remove from the premises at the end of the term, upon a breach, or if
the tenant fails to pay rent, a landlord may take action to evict the
tenant. 68 P.S. Section 250.501. The landlord must first give 15
days notice. 68 P.S. 250.501(b). (Special mobile home rules apply
that a landlord may not evict a tenant even at the end of a term if
the tenant continues to meet all rules of the park and pay rent.)
A landlord may bring an action in
assumpsit with a district justice for the tenant to appear and answer
the complaint. 68 P.S. Section 250.202. At the hearing, if proven,
the district justice may order delivery of the real property to the
landlord; damages for unjust retention of the premises; and any rent
due and unpaid. 68 P.S. Section 250.503. After five days, the
justice of the peace may order the sheriff to deliver the property to
the landlord. Id., subsection (b). The tenant may, at any time
prior to actual eviction, pay the rent and costs and reinstate his
lease. Id., subsection (c).
Abandoned Mobile Homes have their own
rules pursuant to 68 P.S. Section 250.505.
One area of eternal concern in
residential leases is that of the security deposit. No landlord may
require more than two months' rent as security. 68 P.S. Section
250.511a. If funds are held more than two years, there should be
interest. 68 P.S. Section 250.511b. It is possible to bond, rather
than escrow. 68 P.S. Section 250.511c. Most importantly, if a
landlord can be shown to improperly hold escrow funds more than
thirty days after termination of a lease, e tenant may recover double
the amount of the escrow. The burden of proof is on the landlord.
Id., Subsection (c).
Unfortunately, if a tenant if aggreived
by a decision, they must come up with the full amount of the judgment
before they can appeal. 68 P.S. Section 250.513. This is, of
course, extremely difficult for a tenant who has not been making rent
in the first place.
A very important provision of the law
concerns use of illegal drugs. A tenant can be removed from a single
family dwelling, apartment, multiple dwelling premises or tenement
building in three instances. First, if there is a conviction for an
illegal sale, manufacture or distribution of a drug in violation of
“The Controlled Substances Act” 35 P.S. Sections 780-101 et seq.
Second, if there is a second violation of the same provisions.
Third if law enforcement officials seize any illegal drugs on the
lease premises. 68 P.S. Section 250.505-A. It is this third
provision that is problematic. A tenant may have their son or
daughter who is at fault for drug possession, but yet the tenant and
their whole family may be evicted.
Article V-B discusses in great detail a
Tenants' Rights to Cable Television. This encompasses Sections
150.501-B through 250.510-B. I will not go into these in detail, as
such provisions seem almost antiquated in the modern world.
So why did I write about this in such
detail? Because I know a lot of tenants (and some landlords) and the
law seems totally inadequate to address the needs of the various
people. First of all, the law provides quick notices to try and
remove tenants and distrain property to pay for rent. At first blush
that seems to protect the landlord. However, chances are the tenant
has no money if they are not paying rent so these quick procedures do
nothing but put a tenant on the street. Second of all, a tenant has
no right to pay less or to make payments in order to bring themselves
into compliance with their lease. It is all or nothing. Also, the
notices are easily mistaken or the service is easily missed, thereby
lengthening the time for recovery or eviction. Finally, a tenant is
often in a position of weakness with regard to a landlord, so they
have no bargaining power to bargain for the right to cure or for more
notice or any consideration whatsoever. It is generally take it or
leave it.
Attorneys representing landlord tenant
disputes must look to the lease itself for its language (nothing in
the act changes or even discusses general contract provisions such as
acceleration clauses as are common in installment contracts). Also,
the time limits and the rules must be strictly observed. Finally,
the exemptions must be carefully applied to protect both the tenants,
but innocent third parties that may have an interest in personal
property.
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