The Implied Warrant of Habitability
Until 1978, the Pennsylvania courts followed the old common law rule: “let the tenant beware.” Once a tenant had taken possession of a home or apartment, the landlord owed no duty to repair the premises unless the lease expressly required specific repairs. In a 1979 landmark decision the Pennsylvania Supreme Court recognized that today’s tenant has a right to a decent place in which to live. The court stated that every residential lease, oral or written, contains an “implied warranty of habitability.” This is an unwritten guarantee that the leased premises will be safe, sanitary, and healthy. It applies even if a house or apartment is rented “as is.” A tenant’s right to a decent home may not be waived. Any lease clause purporting to do so is void.
The implied warranty of habitability does not require the landlord to make minor repairs or provide you with an aesthetically perfect dwelling. For example, the landlord need not replace the living room carpet when it frays, or repaint the apartment if the paint is chipped unless he or she has agreed to do so. However, the landlord must remedy serious defects affecting the safety or liveability of a rental unit. Such problems as lack of water or heat, a badly leaking roof, faulty electrical wiring, insect or rodent infestation, serious structural damage, and housing code violations are generally covered by the warranty unless they result from damage caused by the tenant.
Many localities have adopted housing maintenance codes setting specific requirements for adequate heat, water, light, ventilation, living space, and safety in rental units. Your dwelling must meet the requirements of the local code. To determine whether there is a code enforcement office in your area, call your local borough, township, or municipal office. If you are living in substandard housing, request an inspection.
If the inspection reveals defective conditions which violate the housing code, the enforcement officer has the power to order repairs and impose a fine upon the landlord for failure to repair. A housing inspection report may also be very helpful as evidence if the condition of the premises results in court action.
In order to establish and protect your rights under the implied warranty, you must:
- Determine that the defect interferes with the habitability of your rental unit.
- Notify the landlord of the problem’s existence and request repairs.
- Allow the landlord reasonable time to repair.
- Show that the landlord failed to repair.
When there is a serious defect in your apartment or house, it is best to give your landlord prompt written notice. Inform the landlord of the nature of the problem, request repairs, and list the steps you intend to take if the problem is not remedied. In order to prove you have given appropriate notice, keep a copy of your letter, sending the original by certified mail, return receipt requested.
If you are in an emergency situation, e.g., lack of water or heat, you should not delay in order to give written notice. Speak to the landlord about the problem in the presence of a witness. Afterwards, promptly send a follow-up letter, reminding the landlord of the problem and stating the remedies you will seek if repairs are not made within a reasonable period of time.
WARNING: SEEK LEGAL ADVICE BEFORE WITHHOLDING RENT OR MOVING OUT BECAUSE OF A DEFECT IN THE PREMISES. Very often, tenants, angered by the landlord’s failure to make needed repairs, are tempted to move out or withhold rent until their problems receive some attention. In many cases, the courts will not consider the landlord’s failure serious enough to warrant such drastic action. If you have overreacted you may risk eviction and legal action for the rent, late fees, and court costs. At the present time, Pennsylvania law imposes no duty on the landlord to find a substitute tenant if you wrongfully vacate the premises. As a result, you may be forced to pay rent for the full term of the lease after you have left, even if the landlord makes no effort to find a new tenant. Therefore, it is essential to seek professional advice before abandoning your home or withholding your rent.
If the problem is serious enough to constitute a breach of the implied warranty of habitability, you may be entitled to seek one or more of the following legal remedies:
- Move out, cancelling your lease.
- Withhold rent until the defect is remedied.
- Repair defects and deduct the cost of repairs from your monthly rent.
- If sued by landlord for unpaid rent, file a counterclaim for costs of repairs or rent rebate.
- Initiate legal action to recover costs of repairs, retroactive rent rebate and any other damages suffered while the defect continued.
Even if you are justified in taking action, you must take care to establish solid evidence of the existence and seriousness of the defects, your request for repairs, and the landlord’s failure to act.
The Pennsylvania Rent Withholding Act
In addition to the remedies available under the implied warranty of habitability, in certain localities The Pennsylvania Rent Withholding Act provides assistance to tenants living in substandard housing.
Once the leased premises have been inspected and declared unfit by the local housing code enforcement officer, the tenant may deposit his or her rent with a specific approved escrow agent, rather than paying it to the landlord. These payments continue for up to six months. After the six months have expired, if the premises are still unfit, the deposited rent is returned to the tenant. Further six month periods of rent withholding may follow. In addition, the tenant’s lease, whether oral or written, is extended until the unfit designation is removed. A tenant may not be evicted for any reason while he or she continues to make timely rental payments to the escrow agent. The tenant is also permitted to withdraw money from the account to make repairs or to pay utilities which the landlord has wrongfully failed to pay.
If the landlord repairs or corrects the defects within the six-month withholding period the rent will be turned over to the landlord.
In order to determine whether the Rent Withholding Act applies in your area, you should contact the local government offices or code enforcement officer. Even where the act does apply, tenants may be better assisted by the more flexible remedies under the implied warranty of habitability. An attorney’s opinion should be obtained before resorting to either remedy.
Your landlord may evict you if the term of your lease has expired and you have failed to move, if you have failed to pay the rent, or if you have broken one or more of the major lease provisions.
Your landlord may not legally force you to move immediately, lock you out, turn off your utilities, or enter your premises unreasonably. Nor may he or she lawfully threaten or harass you.
In Pennsylvania, the landlord must follow certain required legal procedures before you can be evicted. First, he or she is required to provide you with written notice to vacate the premises. This notice is only effective if it is hand-delivered or posted on the premises in which you live. Mailing the notice is not sufficient.
This written notice must specify that you are to move out by a certain date. If you are being evicted because your lease has expired or because you have broken a provision of the lease other than non-payment of rent, the landlord must allow you thirty days from the date you receive the written notice. If the eviction is a result of your failure to pay rent, you must be given thirty days notice during cold-weather months, September through March, but only fifteen days notice during warm weather months, April through August.
NOTE: THE ADVANCE NOTICE REQUIRED BY LAW MAY BE WAIVED OR DECREASED BY YOUR LEASE. SUCH A WAIVER IS GENERALLY CONSIDERED VALID. If the notice is validly waived by your lease, your landlord will be permitted to take you to court right away, without any advance notice.
If you fail to move out by the date specified in the notice, you will probably have to pay rent for the time you remain plus the legal costs of a court eviction proceeding. Even if you move out by the required date, if the landlord claims you still owe him or her money, the landlord may go to the District Magistrate and file a LANDLORD/TENANT COMPLAINT against you. A copy of the complaint will be sent to you by first-class mail or delivered by a constable or sheriff. The complaint will state the reason for the eviction, and the amount of rent, if any claimed by the landlord. It will also state any additional claims for money the landlord is making. Most important, it will contain a date for a hearing.
DO NOT IGNORE THIS COMPLAINT. If you do nothing, the District Magistrate will enter a judgment (or decision) in favor of the landlord for whatever money has been claimed, plus costs. This judgment will also permit the landlord to take eventual possession of the premises. If possible, see an attorney. In most areas of Pennsylvania, legal service organizations provide free representation for low-income persons who are facing an eviction. Your local yellow pages or court house administrator can help you locate them. If you are not eligible or do not have access to such a service, contact the Pennsylvania Lawyer Referral Service at their toll-free number: 1-800-692-7375. They will assist you in finding an attorney who will advise you at a very low initial cost, which should help you to protect your rights.
At any time before the hearing, you may contact the District Magistrate to file your own claim against the landlord. This is called a counterclaim or cross-complaint. You should file a counterclaim if the premises had serious defects such as faulty plumbing or heating, a leaky roof, lack of hot water, insect or rodent infestation, or some other threat to your health and safety. If you had asked the landlord to repair or correct these defects, and he/she failed to do so, or was slow to do so, you may be able to reduce the rent you owe or reclaim some of the rent you have already paid. You should also consider filing a counterclaim if the landlord has locked you out, disconnected your utilities, or injured your health or property in his or her attempt to force you to move.
Even if you have no reason to file a counterclaim, you will need to appear and defend yourself if the landlord is claiming more than you owe or if you have not breached the lease. Inform the District Magistrate that you will appear at the hearing. By appearing at the hearing, you may be able to settle your differences with the landlord or work out a repayment arrangement for back rent or legal costs.
If the eviction is solely for nonpayment of rent, you may stop the eviction at any point before the sheriff puts you out by paying the full rent and costs to the landlord.
If you disagree with the Magistrate’s decision, you have the right to appeal to the County Court of Common Pleas. This appeal must be filed within thirty days of the date of the Magistrate’s decision. You may be required to post bond or an amount of money equal to the payment of rent, damages, and legal fees which have accumulated or may accumulate before the final decision. You would be well advised to secure the services of an attorney to represent you on your appeal.
If you lose the case, the landlord cannot force you out of the premises immediately after the hearing. He/She must request an Order of Possession after the Magistrate’s judgment has been entered. The Magistrate will not issue this order for fifteen days. When issued, a copy will be mailed to you, commanding that you move out within fifteen days or be forcibly removed by the Constable or Sheriff. These two fifteen-day periods combine to allow you a total of thirty days after the judgment to vacate the premises.
It is advisable to vacate the premises before you are forced out. If you remain on the premises and are unable to pay the back rent, damages, and legal costs, the Constable or Sheriff will remove you, lock you out, and seize all of your possessions other than clothing and selected personal property. Your landlord can then request that enough of your possessions be sold to pay him or her the money owed.
Late Move Out
Moving out after the intended date may cause several different problems. First, if you have a verbal month-to-month lease and move out in the middle of any month, you are responsible for the full month’s rent. Many students mistakenly believe that if they leave a rental unit by the middle of the month, they only owe one-half month’s rent. On the contrary, if you hold over into a new rental period, you must pay rent for the full period.
Secondly, if you have a written lease for a definite period of time (such as one year) and you hold over past the termination date, you may be unintentionally renewing your lease for another full term.
The third possible difficulty arising from moving out too late is an eviction action to force you out of the premises and to collect any damages the landlord sustained as a result of your refusal to move out. Eviction is not a threat if your lease contains a clause authorizing you to renew it by “holding over” past the termination date.
Recovering Your Security Deposit
The most essential step for you to take when you move out is to give your landlord written notice of your new address. You should do this just before you move. If you don’t know what your new address will be, give the landlord the address of a friend or relative who can accept mail for you. You should send this notification by certified mail, return receipt requested, so you will be able to prove that your landlord received it. You should also be sure, as always, to keep a copy. If you take this simple step, your landlord must provide you with a written list of damages and return your security deposit, minus the amount claimed for damages, within 30 days. Should he or she fail to provide a written list of damages within 30 days, the landlord forfeits the right to keep any of your deposit as well as the right to sue you for any damages to the premises. In addition, if your landlord does not return the differences between your deposit and the actual damages to the premises within 30 days, you have the right to sue him or her for double the difference between your deposit and any damages you actually caused. These protections are only available to tenants who can prove that they have given their new address in writing. Even if you failed to give such written notice when terminating your last lease, the landlord is still legally obligated to return your security deposit, less the value of damages to the premises.
If you have difficulty recovering your security deposit, it is possible to bring legal action yourself in the District Magistrate’s Court for a fairly small fee.
- Pay rent when due.
- Comply with all terms and conditions of the lease and/or the application for a lease.
- Comply with any rules and regulations included in the lease or a separately signed addendum.
- Comply with the requirements of Pennsylvania law, local ordinances, and housing codes.
- Refrain from disturbing the peaceful enjoyment of other tenants and neighbors.
- Refrain from damaging the premises.
- Notify the landlord of any serious defects in the premises which may cause the building to deteriorate.
- Repair any damages resulting from tenant’s actions or negligence (other than normal wear and tear).
- Keep the premises reasonably clean.
- Make minor repairs, unless the lease provides otherwise.
- Allow the landlord or his/her representative or local government inspectors reasonable access for inspection and repairs.
- Give tenant possession of the leased premises on the commencement date of the lease.
- Comply with the terms and conditions of lease.
- Provide and maintain safe, sanitary, and habitable premises.
- Refrain from interfering with tenant’s exclusive and peaceful use of the premises.
- Refrain from any unfair or deceptive act or practice which violates Pennsylvania’s Consumer Protection Law.
- Refrain from acts of discrimination which violate the federal “Fair Housing Act” or Pennsylvania law. Prohibited discrimination includes discrimination based on race, color, religion, sex, national origin, ancestry, handicap, disability, or use of a guide dog due to disability of the user.
- Comply with the Pennsylvania “Mobile Home Park Rights Act” in situations where the tenant owns a mobile home and leases space from the landlord.
- Comply with all requirements of the Pennsylvania “Landlord/Tenant Act.”
- Comply with the Pennsylvania “Utility Service Tenants Rights Act” in situations where utility service is billed to the landlord, rather than the tenant.
- Comply with the Pennsylvania security deposit law, contained in the “Landlord/Tenant Act.”
- Comply with the Pennsylvania “Uniform Condominium Act” which contains protection for residential tenants in buildings being converted to condominiums.
- Comply with any standards set by federal housing regulations, local ordinances and property maintenance codes.
- Unless validly waived by the lease, provide tenants with proper advance written notice of intent to evict for breach of lease or failure to pay rent.
- Refrain from lockouts, threats, or self-help eviction.
- In complexes or houses with three or more separate apartments, allow tenant to have guests for reasonable time; to retain control of certain common areas and facilities; and to use reasonable care in providing for safety in the common areas and facilities.
- Sue for damages resulting from landlord’s failure to give possession of premises on commencement date of lease.
- Terminate the lease upon a serious breach by landlord.
- Sue for damages upon landlord’s breach of the lease.
- Utilize the remedies provided by the implied warranty of habitability and the Pennsylvania “Rent Withholding Act” if landlord fails to provide or maintain livable premises.
- Defend against improper legal action initiated by landlord, and appeal any court decision, even if lease waives these rights.
- Sue for injunction to stop self-help eviction or lockout by landlord.
- File complaints or take appropriate legal action for violation by landlord of any of the following:
- Pennsylvania “Landlord/Tenant Act”
- Federal “Fair Housing Act”
- Pennsylvania “Human Relations Act”
- Pennsylvania “Consumer Protection Law”
- Pennsylvania “Mobile Home Park Rights Act”
- Pennsylvania “Condominium Conversion Act”
- Pennsylvania “Utility Service Tenant’s Rights Act”
- Local housing maintenance code
- Take legal action to regain possession of the premises in the event of serious breach by the tenant. This is usually called an “eviction.”
- Take legal action to recover unpaid rent, as well as any additional fees (such as late fees) required by the lease.
- Under some leases, upon tenant’s failure to pay the rent, landlord may sue in advance for rent which would normally be paid in monthly installments through the end of the lease.
- Under some leases which contain a provision making the tenants “jointly and severally” liable for the rent, if any one tenant fails to pay his or her share of the rent, the landlord may take legal action against any or all of the tenants. Through the use of this clause, one roommate is often required to pay another roommate’s share of the rent.
- Take legal action against parents or other parties who have guaranteed the tenant’s performance under the lease.
- Retain the tenant security deposit for damages to the premises or unpaid rent.
- Take legal action to recover any damages or unpaid rent in excess of the security deposit.
- Request Sheriff’s sale of tenant’s personal property or place a lien on a certain real estate if the judgment is not paid within thirty days.