Investor · Littleton, MA · Member since 2014 · 37 posts · 1 vote
Okay - now that I have the information I need and have to keep this lease, I have two parts of the lease that are really confusing me tonight. The wording mostly.
1) Tenant expressly waives to Lessor the benefit of Act No 20, approved April 6, 1951 entitled "The Landlord and the Tenant Act of 1951"., requiring notice to vacate the premises at the end of the term, or any renewal thereof, and agrees to give up quiet and peaceful possession at the end of the terms or any renewal term without further notice from the Lessor and further waives all laws now or hereafter in force exempting property from liability for rent or for debt.
2) Lessor shall undertake all necessary and appropriate repairs and maintenance to maintain the premises during the term of the Lease in the same condition as it was as of te date of the commencement of the Lease. If such repair is Tenant's responsibility, Lessor shall bill Tenant and Tenant shall pay the same within 15 days.
With the first one - I have never heard of this Act. I cannot figure out from the wording if the Tenant is waiving the right to this act, or the Lessor does, or neither??
And with the second one - what the heck.....is the tenant responsible for fixing EVERYTHING?
I have tried for two weeks to reach the old owner - the one that wrote this lease, and I cannot get ahold of him. Not even through his attorney or real estate agent - no one responds. So I guess I am left to figure this one out on my own. I have a VERY disgruntled tenant, so I want to make sure I get this all right.
I'm not an attorney and not giving legal advise. You're right the wording is terrible.
1. In some states the owner has to give the tenant notice of non-renewal of the lease. The tenant has the right to waive that notice, and will leave quietly when the lease expires. that's my take, as always consult with an attorney.
2. This one is easier. Owner will keep the property in good repair, such as when first rented. But if the repair is caused by an action of the tenant, then the tenant will pay for the repair. For example, say the toilet is clogged up, the owner calls a plumber and they snake the line and recover a tooth brush of the tenant. Since the tenant cause the toilet clog the tenant is responsible for paying the bill.
I'm not an attorney and not giving legal advise. You're right the wording is terrible.
1. In some states the owner has to give the tenant notice of non-renewal of the lease. The tenant has the right to waive that notice, and will leave quietly when the lease expires. that's my take, as always consult with an attorney.
2. This one is easier. Owner will keep the property in good repair, such as when first rented. But if the repair is caused by an action of the tenant, then the tenant will pay for the repair. For example, say the toilet is clogged up, the owner calls a plumber and they snake the line and recover a tooth brush of the tenant. Since the tenant cause the toilet clog the tenant is responsible for paying the bill.
Investor · Littleton, MA · Member since 2014 · 37 posts · 1 vote
9y
Thanks! Okay - so for example - when I inherited this tenant, she said she wasn't going to pay her rent because her toilet doesn't flow well. She has to plunge it every couple of days, and doesn't think it flows well. The last owner said for her to get a plumber. So she did and they didn't find anything. So she feels like this is something she can withhold rent for - because it just doesn't work right. I have no idea if it was when she moved in or not. She says it wasn't, but I don't have the owner to back that up. SO........she wants that fixed. I have had this property a week. I did send my contractor in. He thinks it MIGHT be a vent issue, but will have to take the toilet off the floor and remove a wall.....it will be quite costly and we may find nothing. I just don't know where to draw the line. But she thinks this keeps her from paying rent....but the toilet works.....so I don't know....
I don't know all the facts, so I can't give you a formal legal advice. But I'll provide you with a broad overview.
To add to what @David Krulac wrote, the Landlord and the Tenant Act of 1951 is the main statute that governs the landlord and tenant relationship in Pennsylvania. That statute requires a landlord to give notices to tenant to recover possession of the unit. Depending on the circumstances, landlord may need to give a 10, 15, or 30 day notice depending on the facts. But the law also allows the tenant to waive the right to receive these notices.
As for your repair issue, there are few points to consider.
First, you should know that all PA landlords give an "implied warranty of habitability" to its tenants. While this warranty does not require you to supply a perfect dwelling, it does require you to provide a property that is in a livable condition. A tenant cannot waive the right to receive this warranty from a landlord. This means that it doesn't always matter if the tenant knew about certain defects. If a landlord has a property that is inhabitable, then the landlord needs to make the repairs to make it habitable.
The magistrate judge is most likely going to be the person who decides whether you breached the warranty by failing to fix this toilet. The question that the judge will need to answer is whether a reasonable person would think that the current condition of the property renders the property inhabitable. The judge has fair amount of discretion making this finding.
Second, the lease language can often create an additional duty for the landlord to make repairs that goes beyond the above warranty. This is interesting since the law is fairly clear that landlord’s actually do not have a duty to make any repairs beyond what is required to keep the premises habitable. But many leases often---and I think this is a mistake on the landlord's part---have language stating that the landlord will make all reasonable repairs or maintain the property in a certain condition.
I think one could reasonably argue that the language in your lease requires you to make repairs that go beyond habitability. Again, the judge will decide whether that's the case.
But with all that said, tenants typically cannot withhold rent (unless the lease provides otherwise). There is an act called Rent Withholding Act, but that Act: (1) only applies to certain municipalities; and (2) still requires the tenant to pay the money into an escrow account. If the Act does not apply, then the tenant may not withhold rent from the landlord. The tenant must instead continue to pay the landlord but also bring a suit against the landlord for breaching the warranty. Note that these kinds of lawsuits---combined with other consumer protection statutes---can sometimes lead to a fairly big judgment against the landlord.
Long story short, this is what often ends up happening: (1) tenant asks the landlord to fix something; (2) landlord refuses; (3) tenant withholds rent; (4) landlord sends required notices (if any) and files for an eviction action; and (5) both parties end up before a judge. Who wins depends on myriad of facts.
On a final note, I would note that if you decide to do repairs, I would get multiple opinions before doing any costly repairs. As someone routinely speak to and represent out-of-town investors, I've noticed that many contractors often try to "oversell" to these investors. I suppose the idea is that by not being local, they won't have ability to properly inspect or know what a fair price is. I would say finding a reliable, trustworthy contractor is one of the biggest challenges for an investor.
Investor · Littleton, MA · Member since 2014 · 37 posts · 1 vote
9y
Thanks @Chris K. - I appreciate the help! I am definitely doing to fix the toilet - that isn't the question, really. I am sure what she is experiencing is a pain in the butt. It has been going on for 3 months and the other landlord told her it was her responsibility to pay for the repairs. I told her that we would use our contractor (we have an amazing contractor on our staff - I trust him completely), to make the fix. But from what I understand from the last owner - it is her responsibility to pay for the repair. We aren't interested into getting into a battle with her over this. I am just trying to get ahold of the old owner to understand his stupid lease. I hate all of it. :) I would much rather use my own lease but whatever.
We have only owned this property for a week. This tenant lived there for 3 months AND paid rent for 3 months before we took ownership. Now that she has someone else's ear, she has gone off the deep end. I am just trying to figure out where to draw the line. She is the one on insisting on follow her old contract - she wasn't interested in a new one, which is fine. But if she wants to follow it, then she has to follow it.
So - if this tenant "waived" the tenant act of 1951, she has waived her right to a notice to leave? Is that what that means? THat would be RICH because that is exactly what she was fighting me on. Not wanting to waive that right (I wasn't making her, but it was part of the reason she was afraid of a new contract). So she waives the right to receive these notices.....what does that mean? Why would a tenant do that? Does that mean tomorrow I can just take possession without notice? That seems crazy! Any clarification would help. I am still trying to get ahold of the old owner. Fun times.
Essentially the first paragraph says that tenant may have waived the right to receive a notice (typically called "notice to quit" or "notice to vacate"). Now I underlined may have since it's debatable whether the above language satisfies the Plain Language Requirement for residential leases.
But in any event, the notices are just a piece of paper that you need to deliver to the tenant before you can start an eviction action. So the short answer to your question is that the tenant did not waive the right to defend herself in an eviction action. She instead may have waived her right to receive the required notices before the action. You maybe able to lawfully file an eviction action tomorrow, but you cannot gain possession of the property until the judge rules in your favor. And even then, you will need get a sheriff to basically supervise the actual removal of this tenant and her belongings.
One other item I should note: the old owner's interpretation of the lease doesn't necessarily matter. In contract law, what ultimately governs is what the parties wrote in the contract. The subjective intent of the old owner doesn't matter in most circumstances. So trying to get hold of the old owner probably isn't too helpful since the judge will likely not give any weight to what he subjectively thought. Now the judge may give some weight to how the old owner and the tenant interacted in the past, but even that has limited usefulness depending on the circumstances.
Investor · Littleton, MA · Member since 2014 · 37 posts · 1 vote
9y
@Chris K. - this has been so helpful, thank you. This is the first time I have inherited a lease I don't understand. :) Usually their either didn't have one, or it was pretty basic. I talked to the old owner tonight and he actually couldn't tell me what he meant by putting that in the lease!! That is a bit bad. But what you said helps a ton. I would never evict a tenant without notice unless it was dire. Especially since it is winter- I would imagine a judge wouldn't allow it anyway. I just wanted to make sure I understood it because this tenant refused to waive her right to a notice to quit before, but it looks like she may have done just that. Ah well.
I tell ya - I have lost enough sleep over this one tenant that is for sure. Thanks for helping me learn something. :)