TO CELEBRATE OUR NEW LOOK, PITTSBURGH LEGAL BACK TALK IS REPRISING A FEW OF THE BEST POSTS FROM THE PAST 18 MONTHS.  THIS POST SUMMARIZED WHAT A LANDLORD OR TENANT MIGHT WANT TO KNOW ABOUT STAGE TWO OF A LANDLORD-TENANT LAWSUIT IN PENNSYLVANIA.

THE NOTICE OF APPEAL: SO MUCH TO DO AND SO LITTLE TIME TO DO IT!

When a landlord is awarded possession of the leasehold by the Magisterial District Judge, the tenant may appeal to a board of arbitrators, but there are a few things to know.

Landlords and tenants frequently represent themselves in arbitration proceedings, sometimes effectively. However, too often they don’t because the procedure is a mystery to them and there are limits to the ability and inclination of the prothonotary, the judge or the arbitrators to help out a litigant who is trying to plead or prove a case and doesn’t know how to do it. If you must depend upon the kindness of others to guide you along, you may soon be in big trouble.

First, while judgments for damages may be appealed within 30 days, judgments for possession must be appealed within 10 days. This means that, as a practical matter, the tenant is going be appealing both possession and damages in 10 days, since there is no point in filing one appeal in 10 days and another in 30. However, if the tenant discovers that it is too late to appeal an order of possession, or if he is voluntarily relinquishing possession, he could still appeal the damages if the 30 day period has not run.

For the tenant, who is almost always the defendant, starting the appeal process requires filing of a notice of appeal with the prothonotary (Department of Court Records, Civil Division, in Allegheny County), using a short form which the prothonotary provides. He also files a praecipe for a rule on the landlord-appellant to file a complaint within 20 days, also provided by the prothonotary.

If the tenant meets certain financial guidelines, he/she can qualify to file the appeal without paying the filing fees. Once again, the prothonotary supplies forms, and the tenant-appellant goes to the motions judge, obtains an order of court authorizing the filing in forma pauperis and returns the signed order and other paperwork to the prothonotary.

However, there is one more hurdle for the tenant-appellant to jump. In order to obtain a writ of supersedeas from the order below granting possession, the tenant must agree to place each month’s rent in escrow with the prothonotary as it accrues on a specified date. If the tenant-appellant fails to pay the rent into escrow, the prothonotary revokes the writ of supersedeas and sends a notice authorizing the landlord to proceed under the writ of possession issued by the Magisterial District Judge.

So the tenant gets an opportunity to convince a board of three arbitrators not to grant possession to the landlord, but he/she gets it at a price. He/she must pay rent each month until the hearing and the rent will be available to the landlord to defray the part of the judgment for rent that accrues while waiting for the arbitration hearing.

Once all of this has been accomplished, it is the landlord’s turn.

A WELL DRAFTED COMPLAINT IS MORE THAN A WORK OF LITERATURE, IT IS OFTEN A NECESSITY.

The Landlord is now faced with the task of drafting a complaint. Many self-represented landlords think that this involves merely restating the averments in the complaint before the Magisterial District Judge. The prothonotary has provided a handy form which seems to cover everything. In a simple case, it may. But even in a simple case, things may turn out not to be so simple.

At a minimum, a written lease must be attached to the complaint. Any other writings, such as notices of default, upon which the claim relies, must be attached as well.

The landlord can probably get past the prothonotary by filing a very rudimentary complaint. And he/she may even win the case with one. But if the landlord is unlucky enough to have a tenant that qualifies for Neighborhood Legal Services in Allegheny County or the equivalent in other counties, or hires a lawyer who knows more than the basics about landlord-tenant law, the landlord-plaintiff could be in for a rude surprise.

Instead of immediately filing an answer, the defendant may file preliminary objections. Suddenly, the self-represented plaintiff finds him/herself being required to appear before a judge (in Allegheny County it will be Judge Wettick) to defend the complaint from legal arguments he/she doesn’t even understand. Time to hire a lawyer — pronto!

The truth is, the form complaint provided by the prothonotary is not satisfactory to cover the facts of a reasonably complex case and if a plaintiff has one of those, he should hire a lawyer to draft a proper complaint. This lawyer may ultimate pay for him/herself by finding claims the plaintiff has overlooked. For example, does the lease authorize the landlord to collect attorney’s fees?

ANSWER, NEW MATTER, COUNTERCLAIM

Once the complaint is filed and served, the ball is back in the defendant’s court. At minimum, the numbered allegations in the complaint must be answered with specificity within 20 days. Failure to do so could result in default judgment being entered — another complete topic too broad to discuss here. However, the defendant may wish to say more than a response to the individual allegations of the complaint. There may be defenses that involve other facts. For example, the lease might contain provisions not mentioned in the complaint which provide a defense or mitigation to the tenant.

But most important, the tenant-defendant may have claims against the landlord-plaintiff. This could take many forms. The premises may have not been habitable during all or a portion of the lease term — perhaps due to a non-functioning furnace or broken pipes, toxic mold, roach infestation. Again, this could be a topic for another complete post — strike that — a dozen posts.

Once again, the mechanics of pleading and proving a counterclaim may be beyond the capabilities of many, maybe most, defendants. There are rules to follow and we’ve already discussed what might happen when a litigant doesn’t know how to follow the rules. If you want to make a counterclaim and can afford to pay a reasonable fee, hire a lawyer.

The Plaintiff must file a reply to new matter and answer the counterclaim. Failure to do so may, quite frankly, lose the case. For example, if the new matter states that the plaintiff did not give mandatory notices and the plaintiff does not reply, the plaintiff will be bound by the statements of fact in the new matter. Thus, even though the plaintiff is prepared to present proof that notices were given, the defendant’s lawyer can successfully object to proof of facts contrary to the unanswered averments and prevent the plaintiff, at least temporarily, from regaining possession.

WHAT A NUISANCE! EVICTING A TENANT TO AVOID PAYING FOR POLICE VISITS

The City of Pittsburgh and at least one other municipality (Etna) have enacted ordinances that enable the municipality to declare properties a nuisance after three police calls. The matters can be relatively trivial, such as loud domestic arguments. If the unruly tenant has a neighbor who likes to call the police to solve noise problems, three strikes or more can accrue before the landlord is even aware that a problem exists.

At that point, the landlord is required to solve the problem or pay a fine every time the police are summoned. The most obvious solution is to terminate the lease.

However, if the landlord wishes to terminate the lease for non-economic reasons, the lease must have a provision that permits such a termination and it must be plead in the complaint. For example, if the rent is being paid by Section 8, there will probably be no arrearage and thus no grounds for early termination unless another lease provision has been violated. Section 8 tenants are often eligible for free representation by Legal Services. These lawyers know their stuff and will make short work of a poorly plead, poorly proven case involving termination on non-economic grounds. Moreover, the landlord is required by statute to give proper notice to Section 8 of the lease violation and failure to do so could put the landlord back at square one, forced to start over.

THE ARBITRATION HEARING

An arbitration hearing is less formal that a trial before a judge, but more formal than a hearing before a Magisterial District Judge. Too many self-represented parties learn this fact for the first time while trying to present their case.

Although the arbitrators may be understanding and even assist bewildered litigants (up to a point), rules of procedure and evidence do apply and a self-represented party may discover that he/she is unable to present the essential elements of the case, even after repeated attempts, and never really comprehend why. For example, under Rule of Civil Procedure 1305, many kinds of documents can be introduced into evidence without the kind of foundation that may be required in a trial before a judge. These can include repair estimates when the party who prepared the estimate is not present to testify and be cross examined. But such documents must be furnished to the opponent at least 20 days prior to the hearing. If the opponent is represented by counsel, a meritorious case can be derailed under Rule 1305 before it even starts.

Be advised that, in Allegheny County, at least one or probably two of the three arbitrators will be lawyers with significant experience in landlord tenant matters and will have heard numerous other cases. They will understand the issues and evidence properly presented, but they are not mind readers. Your case must still be organized, concise and properly presented. If you put them to sleep, obscure the message with irrelevancies or squabbles over small points or make any of the blunders set forth above (or others too numerous to mention), you could turn a winning case into a loser. It happens every day.

SLAMMING THE DOOR ON NO SHOWS.

If the other party doesn’t show up, you may still be required to present the basic elements of your case. When you do, an award will almost certainly be entered in your favor. Then, assuming that the complaint contains certain magic language at the beginning (this language is in the form the prothonotary provides), you will be entitled to close off the possibility of an appeal to common pleas court.

The arbitration staff will provide you with another form which you will take to the motions judge. After hearing some bare bones testimony, the judge will enter a verdict in your favor — closing off further appeal.

Now, if the other party shows up later with an excuse, you may be required to appear again before the judge to argue against the other party’s motion to reconsider. Heart attacks or car accidents on the way to court will probably be good enough to get them a new hearing. Poor communication or record keeping will not.

THE COST OF DOING BUSINESS

Representing yourself before a Magisterial District Judge is probably safe enough. Either party can appeal. However, as pointed out above with concrete examples, there are significant risks in being your own lawyer at the arbitration level.

The landlord should expect that, over the course of time, some tenants must be evicted and the cost of performing this function should be factored into the equation, just as some furnaces or pipes will break, requiring the immediate expenditure of funds.

In the tenant’s case, the decision whether to hire a lawyer may boil down to costs versus potential benefits. If the result is inevitable and you need two months (with rent paid in escrow) to find a new place, hiring an attorney will not change the outcome. But if there are real and substantial damages claimed by either party, or if there is a dispute over the distribution of the security deposit, hiring an attorney may make sense.

In addition, after the case is over, a landlord may be entitled to garnish the ex-tenant’s wages. This option is relatively new and is not yet used very often. There are limiting factors to be considered and when the judgment is relatively small or the ex-tenant is receiving modest wages, the economic factors may or may not make garnishment possible or worth doing. Nevertheless, this potential changes the game. A tenant may wish to make a payment arrangement to avoid a potential wage garnishment and a landlord may wish to settle to reduce cost of recovering the judgment amount. Lawyers can help the parties reach a settlement and write an agreement that will accomplish the task.

CLT

A large prepaid legal service provider, Prepaid Legal Services, Inc., published its list of the top 5 categories of requests for its services last year. They are:

Real Estate, Landlord/Tenant Issues and Foreclosure – Approximately 358,000 requests for legal services that include residential and commercial real estate transactions, landlord and tenant issues and legal counsel related to foreclosure and short sales

Consumer Finance – Approximately 195,000 requests for legal services related to retail transactions for warranties, guarantees and other contracts

Family Law – Approximately 193,000 requests for legal services related to divorce, child support, child custody and child visitation

Collections – Approximately 162,000 requests for legal assistance to support members against other parties and to defend members from third-party debt collectors

Estate Planning – Approximately 160,000 requests for legal services for preparation of wills and other counsel related to final estates.

All of these areas, with the exception of family law, are currently covered by Pittsburgh Legal Back Talk.

Bankruptcy and criminal law are probably 6 and 7.

Under Public Law 111-022, signed by the President on May 20, 2009: In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential property, it is reported that the tenant is entitled to remain for 90 days if there is no written lease or the entire term of a bonafide lease if there is one. More about this later.

CLT

A tenant from Pittsburgh wants to know whether he/she can terminate a residential lease due to rodent infestation. Read the question and my answer on AVVO.

In a large apartment building, you can be extremely careful and never get rid of vermin. The feeding ground may be somewhere in the building out of your control. Don’t let the landlord blame you the tenant if you know you are not creating the problem. Still, if you wish to terminate the lease, be prepared to fight about it in court if the landlord sues you for back rent. This may involve more than a trip to the Magistrate. The loser has the right to appeal to arbitration and even to court. Whether you wish to undertake this risk may depend upon whether the lease states that you must pay the landlord’s attorney’s fees if you lose.

Good luck!

CLT

When a residential landlord loses a property through foreclosure, there is little good news for the tenant. If you have heard a rumor, a lawyer can check the court dockets and confirm the rumor, including identifying the likely month in which the sheriff’s sale will occur. He/she can also tell you the name, address and telephone number of the lender and other useful information.

It is usually a good idea to start looking for another place to live. The lender will probably encourage you to leave as soon as the property is sold. Although investors usually buy apartment buildings in ordinary sales transactions with tenants included and consider it a bonus, this is not usually the case in foreclosures. The lender usually thinks that after a foreclosure, the property will be easier to sell empty.

However, you may not be required to accept this conclusion. If your lease pre-dates the mortgage (again, a lawyer can look it up) and there is no subordination or attornment clause in the lease (requiring you to recognize the primacy of the mortgage) your lawyer may be able to keep you in the apartment for the duration of the lease. This may involve resisting post-foreclosure eviction proceedings. It is possible — just don’t try to do it yourself.

On the other hand, if you want to leave, your landlord may be in breach by permitting the property to be foreclosed. If the landlord is in default under the terms of the lease, he or she may have released you. Again, you need a lawyer AND you need a copy of the signed lease.

Sometimes the lender will ask you to pay the rent directly to it. In order to be entitled to such a payment, the landlord should produce a signed copy of an “assignment of rents.” Once again, let a lawyer look at it. Keep a copy, plus proof of your payments, in the event that your landlord threatens to sue for the rent. You don’t want to pay twice.

When making arrangements to pay the lender rent, negotiate a deal that specifies exactly how
long you will stay and provides for you to get your security deposit back.” Yes,” you say to the lender, “I know you don’t have the security deposit, but I’m never going to see it from my landlord, so I’ll pay you until May, but you’ll give me June free and I’ll move out at the end of the month.”

You may be surprised when the lender’s representative agrees. After all, he half expected you to run out without paying the last month anyway. Make sure that you get this agreement in writing.

You may discover, by the way, that the lender is quite happy to collect the rent and is in no hurry to foreclose. This situation has been turning up lately, since the real estate market is terrible and any lender would just as soon not own another rental property, at least not just yet. Some will give the borrower some time to find a buyer and (Glory Halelluia!) pay off the loan.

CLT

As readers of earlier posts know, the Landlord and Tenant Act states that if the tenant provides a forwarding address and landlord keeps the security deposit and fails to give the tenant a list of damages in 30 days after the premises are delivered, the tenant may claim double damages.

However, there are circumstances when a Pennsylvania statute known as the Unfair Trade Practices and Consumer Protection Law (“UTPCPL” or “Consumer Protection Law”) [73 P.S. Sec. 203.1 et seq.] can yield triple damages, plus attorneys fees. The UTPCPL provides:

“Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by Section 3 of this Act, may bring a private action to recover actual damages or one hundred dolars ($100), whichever is greater.”

The Pennsylvania Supreme Court ruled that the UTPCPL could be applied to apartment leasing a generation ago in Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974). That case was brought by the Attorney General against 25 landlords who used printed lease forms containing provisions which the Attorney General characterized as unfair and deceptive. Four printers and distributers of the documents were also named as defendants. The Supreme Court held that the Consumer Protection Law covers unfair or deceptive practices in connection of leasing of housing to consumers.

Then, in Zimmerman v. National Apartment Leasing Company, 108 Pa. Commw. 300, 529 A.2d 1157 (1987), the Pennsylvania Commonwealth Court held that the Consumer Protection Law could be applied to allegations that a landlord had repeatedly charged tenants’ security deposits for cleaning services that were not necessary.

In 1999, the Superior Court applied the Consumer Protection Law when a landlord claimed a large and unjustified amount of damages. In Wallace v. Pastore, 1999 Pa. Super. 297, 742 A.2d 1090 (1999), the landlord argued that UTPCPL applied only in cases involving repeated or frequent action, as in Monumental Properties and National Apartment Leasing, while the case before the court involved only a single incident.

The Superior Court noted that “unfair and deceptive practices” under the UTPCPL included: “knowingly misrepresenting that services, replacements or repairs are needed if they are not needed.” There was no requirement in the statute that Plaintiff prove that this was a repeated practice, or that it could not be applied to a single isolated event. “In the present case,” the Superior Court wrote,”the trial court found that Pastore knowingly misrepresented to Wallace and Redante that they owed thousands of dollars in repairs and labor.” That finding alone established a violation of UTPCPL.

The Consumer Protection Law contains a series of specific factual circumstances when the statute may be applied, including through recent amendment, a “catch-all” provision: “engaging in any other fraudulent or deceptive conduct which creates a liklihood of confusion or of misunderstanding” (Sec. 201-2(4)(xxi). This provision, while expanding the scope of UTPCPL, is held by the Pennsylvania Supreme Court to require strict proof of all of the elements of common law fraud. This in turn, creates a substantial burden of proof on the Plaintiff and has lead to the demise of numerous Consumer Protection Law cases based on the catch-all provision where one or more of the elements of common law fraud could not be proven.

CLT

September is hereby declared to be Landlord-Tenant Month on Pittsburgh Legal Back Talk. Check your knowledge of basic LL/TT law in this little True and False Quiz. Then, watch this blog every day for articles about the topics covered by this Quiz and more. Make a record of your answers to these ten questions before checking the Official Answers.

1. Matters arising under the Landlord and Tenant Act of 1951 are under the jurisdiction of the Magisterial District Judge unless the amount claimed is over $8,000.00.
T or F

2. A plaintiff before the Magisterial District Judge may waive the portion of his claim over $8,000.00 to retain jurisdiction with the Magisterial District Judge.
T or F

3. If the defendant appeals the final order of the Magisterial District Judge, any waiver of the claim over $8,000.00 is automatically wiped out.
T or F

4. Wages, salaries and commissions of individuals in the hands of an employer may be attached or levied for unpaid rent to satisfy an unpaid judgment for rent.
T or F

5. Military personnel, including members of the Pennsylvania National Guard, have a right to early termination of a residential lease if they receive change of station orders for a period of over three months.
T or F

6. A landlord may require up to two months rent as a security deposit during the first year of a lease, but only one month security deposit in the second year.
T or F

7. All security deposits over $100.00 must be deposited in an insured bank account.
T or F

8. If a landlord fails to provide a written list of damages to a tenant within 30 days following termination of the lease or surrender of the premises, the landlord loses his right to sue for damages.
T or F

9. If the landlord does not pay the tenant the difference between the damages to the premises and the security deposit within 30 days after termination of the lease or surrender of the premises, the landlord will be liable to the tenant for double the difference.
T or F

10. A mobile home park owner must refund the installation or removal cost to the tenant of a mobile home space at the time the space is recovered or be liable to the tenant for treble their amount plus treasonable attorneys fees.
T or F

The Official Answers can be found in the first entry in Comments. While you are there, leave a comment to disagree with an answer, ask a question or suggest a Landlord-Tenant topic you would like to see discussed this month.

CLT