Eviction in PA - Do I proceed with a hearing?
Real Estate Investor · Ephrata, PA · Member since 2010 · 58 posts · 2 votes
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!
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.
You need to study your state landlord tenant codes. They will provide all the answers regarding the proper legal procedures to follow.
If you are lucky another Pennsylvania landlord or PM with personal experience in a similar situation my respond. Advice from landlords out side of your state will not necessarily apply to your particular situation..
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.
The Pennsylvania eviction process can cost a lot in both time and money so whenever you have an opportunity to avoid following through with it (legally of course) take it. You don't have to "follow thru" with the sheriff if you work it out with the tenants, it is added time and expense.
In the 1st scenario I would certainly get the "friends" contact info and have them sign for the removal in writing. But you could avoid the further 20 plus days and fees (they have another 10 days after the sheriff) PLUS removal and storage of their stuff...it's not at "their cost" unless you can get them to reimburse you (in most situations). Who will take care of removing the stuff after the sheriff/10 more days? Maybe that friend, maybe you can't get a hold of anyone now. Just my opinion, I've avoided numerous legal evictions and have been through the process after a judgment a few times. 9 out of 10 times you'll never see a penny.
Again, my experience is to avoid eviction and the 2nd scenario sounds like opportunity to do just that. I would work with them and let them out of their lease. You've stated they haven't paid rent as it is why go further down the money pit?
I would still follow thru with the sheriff in the first scenario. If you don't, at least in my jurisdiction, you won't be able to file against them again for another 3 months if they decide to stay, or drag their feet. I was even advised to file for eviction with the judge as soon as I give the Notice to Quit, the judge will set the court date accordingly.
In scenario 2, I would let them move out, your lease agreement should specify if they move out early, they forfeit the security deposit.
After the judgement, the judge says I still have the option to "work it out" with them. I know it sounds pretty general. The friend did call me to say the tenant will be coming out of rehab to grab their items and move out. I would assume our "working it out" is to end the lease agreement.
Also, @Justin K. has the clause for abandonment to by pass eviction upholdable in the courts? I have seen other landlords do the same, but I just sounds to easy to have them agree to by pass a state requirement for eviction?
I did meet with a lawyer earlier this year for an eviction and asked about the clause to bypass the eviction process. I didn't really get a clear answer either. It was kind of a yes and no 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
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.
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!
I definitely value your opinion. Thanks!
The friend has no legal right to collect the tenants belongings unless he can get that authorized I wouldn't permit him to do anything.
Follow your state landlord tenant laws. Google PENNSYLVANIA
Others have posted some things they've added to their leases about relinquishing property, abandoned property, the right to enter if no payment after 5 days.. WATCH OUT... don't get stuck.. some rights people can't sign away (ahead of time) and you'll be in court trying to defend why you moved all of Joe Blows stuff out, re-rented the apartment while he was lying in a hospital in Italy while on vacation and came home 10 days late to find he'd been robbed....
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.
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Well, I don't believe that is 100% correct. For example, landlords have in the past tried to avoid setting up separate escrow accounts by placing language into the lease - PA state law says that won't fly. PA law does allow a waiver of notice to quit if proper language is in the lease. So that would be permissible. Usually you have wording somewhere in the lease that sets forth that if one clause in the lease is unenforceable, the remainder of the lease can still be enforced, just in case ...
Maybe @Chris K. can offer something here ...
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.
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.
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. - IMO one of the postings should be a document establishing that you are starting the five days of being unable to contact tenant, and you should photograph that posting; and when photographing a posting, it has been suggested to get the hard copy of the daily newspaper into the photo showing the date as well, to establish that you did not in any way falsify the date.
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. - 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 ...
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:
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.
Thanks @Chris K.! I agree with what you said about listing early. After I have done my property inspection at step 3 I will at least know what repairs I need to do and can begin marketing there. I will tweak that in my processes and procedures. That article was also good and how I usually approach landlord-tenant relationship issues. I think I will order 'getting to yes'. I have gotten pretty good at getting to the heart of what tenants are after in a negotiation, but doing that for property (and business) owners for me has proven to be much more difficult.
And what @Steve Babiak said is also true. For the cost of a newspaper, its to cheap not to cover all my bases.
Thanks for the insight guys. Love improving my processes and procedures!