Eviction in PA - Do I proceed with a hearing?

Question

Hello all..

I have two eviction scenarios. I know you guys can't provide legal advice. I'm just looking to see what others have done.

1) The first tenant is in rehab and I followed the Notice to quit, had the hearing and the judge ruled in my favor. I have to wait the 10 days in PA to get a sheriff for the lock out. The tenant's friend told me they will move their items out for them since they are in rehab. Do I still have to get a lockout by the sheriff, even though they are moving out? I was questioning this because the sheriff will "transfer the property" back to me, correct?

2) Second tenant in a different property wants to move out. I told them they actually would have to wait until September because they signed a year lease. They haven't paid this months rent (15 days late). I'm assuming they're probably going to up and leave. Would I have to proceed with the eviction process and hearing even if they up and leave?

Thanks!

Chris K. · Answer

There are two reasons why it’s hard for a lawyer to answer these questions. First, Pennsylvania law is poorly written on many levels. Second, there’s a lack of appellate court cases dealing with residential leases. These two factors make it tough for lawyers to give exact advice on dealing with abandonment.

Also note that when a tenant abandons a rental, the landlord must deal with two issues. First, the landlord must repossess the real property (i.e. the rental unit). Second, the landlord needs to decide what to do with the personal property that the tenant left behind. While these two issues can get intertwined, they are technically two separate issues.

With the above in mind:

Account Closed

So this gets into a complicated question. I suppose the basic issue is whether the landlord can make the tenant agree to seemingly draconian terms and enforce it in court. It’s hard to answer this because---as mentioned above---the appellate courts haven’t considered these issues. I expect this to be true for a long time since most landlord-tenant disputes never reach the appellate court level. Based on those fact, lawyers will struggle to give a definite answer on this question.

With the above in mind, let’s start with the personal property side. The law linked above states that if there is a conflict between “the provisions of this section and the terms of a written lease, the terms of the lease shall control.” That seems to suggest that Justin’s attorney is correct. BUT the courts have historically have tried to protect residential tenants based on the notion that they are just lay people. So it’s not entirely clear how far the landlord can go when drafting a lease. For example, could the landlord draft a lease that says if you fail to pay rent within 24 hours of the due date, the tenant surrenders all the personal property in the rental unit? I suppose in theory two adults can agree to such terms. On the other hand, some judges may object to such “draconian” terms.

Same concerns apply on the real property end. Unlike personal properties, the Landlord Tenant Act is silent on what constitutes abandonment of the leased premises. When a statute doesn’t expressly address a situation, many judges look to common law to resolve the issue. I don’t have the exact language in front of me, but typically a landlord looking to prove abandonment must show that the tenant: (1) must have intended to abandon the property; and (2) did some kind of act to carry out that intent. Again, the landlord could argue that the terms of the lease should control. A judge may see otherwise and punish the landlord for imposing draconian terms.

So long story short, I don’t know if there is a clear answer. The best I can say is that the right language to include the lease depends on number of factors including the level of risk the landlord is willing to take.

Chris K. · Answer

@Justin Kovach

I think your steps are reasonable. Aside from what @Steve Babiak added, one item I would add is that if you don’t pay to advertise your vacant units, I would immediately start advertising for a new tenant around step 1 or 2. I don’t necessary see any reason for you to wait until you regain possession to start advertising. Now if a new prospective tenant makes contact, you obviously have to be careful to make sure that you don’t create false expectations or agree to something you can’t guarantee. But I assume your screening standards require you to weed out many tenants before you actually rent out the place. So mind as well get the process started early on.

One other thought about these situations in general: I’ve notice that many landlords often like to go to extremes when it comes to dealing with tenants. Some are way too nice while others view their tenants as enemies. In my opinion, both options are a mistake. There is often a happy middle ground where you are not giving up any legal rights but also maintain the trust of your tenants. The following link has a good example of what I mean:

https://www.biggerpockets.com/renewsblog/2015/03/04/how-to-turn-around-tenant-lawsuit-in-single-conversation/

I’ve found that acting in such manner---combined with careful screening---will lead you to tenants that can come to you about their problems before things get out of hand.

Incidentally, the above link refers to a book called “Getting  to Yes.” I believe it should be a required reading for all adults --- especially those with an entrepreneurial spirit.

Steve Babiak · Answer

@Justin Kovach - the time stamps within the photo can be easily "photoshopped", and the time and date in the photo file properties can also be easily altered - but it would take quite an effort to insert the daily newspaper into a photo after the fact ...

Justin K. · Answer

I dont have personal experience with either, but I have tried to protect myself from both.

My application has a spot on it where they are required to list an emergency contact person who can assist in their move-out if they become deceased, hospitalized (long-term), or incarcerated.  My lease then states something to the affect that if any of those things happen we will contact their emergency contact and they will remove their personal belongings promptly and we will take back over the unit within X number of days.  If their contact doesnt remove their items we will store them (at their cost) for up to 30 days.

In your situation I would let the sheriff finish the eviction so its official.

Problem number 2 we handle by saying that if the rent is unpaid for 5 days after the due date and we are unable to contact the tenant we have the right to assume abandonment and take back over possession of the property, thus we can avoid the eviction process.  We also talk about storing their items that may have been left behind (at their cost) for us to 30 days.  Obviously if we dont think that they have abandoned the unit we would go the traditional eviction route.

I know this doesnt help you now, but adding some terms to your lease might help protect you in the future.

Justin K. · Answer

Oh for sure!  I always photograph any posting with my phone which actually time stamps it based off of the cell tower.  I like your idea of the posting stating that the 5 days for abandonment has started.  I never thought not explicitly saying that would be an issue.  I will add that to my late rent notice that I post typically that starts the 8 days for tenants that haven't abandoned.

You are a wealth of knowledge @Steve Babiak.  Us young guys in the game really appreciate your words of wisdom and insight!

Justin K. · Answer

Love the input @Steve Babiak and @Chris K.!

When the rent isn't paid I always follow the same procedure.  Getting a hold of the tenant is usually difficult.

• Call and Text Tenant, Post Late Notice on their Door or Hand Directly to Them.
• If I cant get a hold of the tenant, I will also post a 24 inspection notice that I am intending to enter the next day to do a smoke detector check and property inspection.  
• If I still havent heard from them I will call and text them the next day as well and if the letters and all the calls don't get them in contact with me I will inspect the property as I posted previously.  Usually in that inspection I can see if they have abandoned the property or if they are still living there.  Most of my units are multifamily, so a quick talk with the neighbors usually leaves me with an answer to if they moved out or not.
• If it appears that they have abandoned the property then I begin reminding them about the clause in the lease that states that they are considered to abandon the property I will reposes it after 5 days.  I do this via calls (VMs), text messages, and emails so I that have a record.
• If after 5 days of trying to contact them in all ways that I can and even stopping by to try to talk to them at the rental I will reposes the property and store any items they have left behind as required by the law.  Then the process of finding a new tenant begins.

My attorney thought that was the best way to do it to help cut down on vacancy rates.  But like I said, I have never actually had to do this.  But thats currently my procedure if I ever need to use it.

Justin K. · Answer

I have never been in court regarding my abandonment clause.  My RE attorney told me that anything can be put in the lease and as long as the tenant is aware that they are signing away their state given tenant rights its an enforceable contract.  I just bought a building where the landlord had the tenants sign away the requirement for 8 day notice prior to filing an eviction.

**I am not an attorney and am not giving legal advice.  Just relaying what my attorney told me for my situations.  Situations will differ from person to person so I HIGHLY recommend that you seek legal advice.**

Hope it helps!

Jeff B. · Answer

The well meaning friends are not legal representatives and their signatures are easily challenged.  Nightmare is they move him out (goods going to unknown location) and the tenant comes back with charges of "UNDUE PROCESS".

You don't need the Sheriff's lock-out *IF* you have the Eviction Judgment.

You do have responsibility for their personal property

Account Closed · Answer

I definitely value your opinion. Thanks!

Account Closed · Answer

Yes, he'll be moving his own items out.

Yes, I just reread the notes. It looks like If the tenant does not move out within 10 days of the judgement, I have to request an order of possession.

Eviction in PA - Do I proceed with a hearing?

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