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Tenants Rights and Responsibilities
TENANT'S RIGHTS: UNWAIVABLE, WAIVABLE, REGULATED BY THE LEASE A tenant has certain basic rights, whether written into the lease or not. The Landlord Tenant Act of 1951 outlines these basic tenant's rights. Since 1951 there have been certain amendments to the law, such as the "Warranty of Habitability" (1978) and the Philadelphia City Council Ordinance of 1987, making it illegal for a landlord to lock a tenant out, shut off utilities or harass with the intention of evicting without due process. In July 1994 the "Plain Language Contract Act" was enacted. According to this act all residential leases after this date must be written, organized and designed so that they are easy to read and understand by consumers. However, a lease that is easy to understand is not necessarily a fair lease. Certain leases still contain unfair, illegal clauses or ask tenants to waive important rights. Commercially available Lease 78, part 1 and 2, The Penn Consumers Board Lease (available at our office) are fair leases. Since 1995 all residential leases for properties built prior to 1978 must contain a "Lead Paint Disclosure" clause and the landlord must provide you with lead paint EPA information. Basic Tenant's Rights (Unwaivable): · right to Fair Housing (freedom from discrimination because of membership in a protected class); · right to quiet enjoyment of home; · right to privacy; · right to a safe, habitable place (a place conforming to the local housing code standards); the landlord is responsible for all repairs due to normal wear and tear and cannot make the tenant take the unit "as is" ; · tenant's possessions cannot be seized if tenant breaks promises in the lease; · the tenant cannot be prohibited from representing himself or herself in court or from suing the landlord; · the tenant cannot be asked to relieve landlord from all responsibility for damage or physical injury if it can be proved that the property owner/manager was negligent. Both landlord and tenant are responsible for their own negligence. Illegal clauses in a lease are not enforceable. Quite a few leases still contain such illegal clauses. They also contain a clause stating that if any terms or provisions are determined to be invalid or unenforceable, only those provision are struck out and the remainder of the terms and conditions will remain valid. This is called a “severability” clause, If your lease says that the landlord can seize your property for non-payment of rent (distraint), can lock you out of the apartment (self-help), represent you in court (confession of judgment) or that the landlord is not responsible even if the landlord is proved negligent, (disclaimer of liability for negligence) - the landlord will not be able to enforce such clauses and ask you to waive certain basic rights. Waivable Rights Some leases may ask lessees to waive their right to notice or to reduce it to five days. The law requires 10 days of notice for non-payment of rent and 15 days for other violations of lease terms. Make sure you understand that the right to notice in case of non-payment of rent or other violations of the lease term is a waivable right and as such it is regulated by lease not by law. However, the Philadelphia Municipal Court does require landlords to notify tenants before filing in court. Another waivable right is the right to continue a lease when the property has been sold. Some leases ask the lessee to agree that in case there is a foreclosure sale, the new owner has the right to terminate lease. Landlord will have to notify tenant, according to requirements of notification in the lease, but the lease may be terminated or changed by the new owner. Read and understand your lease before signing. Negotiate additional terms and write them into the lease, if possible. Always get a copy of any document you sign, including the application for a lease. If you have questions about your lease the Office of Off-Campus Living can review the lease with you or answer specific questions you might have. Once you have signed the lease you have committed yourself to all its terms, even if some of them may be unfair to you. Only illegal clauses, if any, will not apply. Since leases are contracts, subject to contract law, leases should be negotiable. The best time to negotiate is before signing. Clauses can be crossed out if both parties agree. Both parties must initial any deletions in order to be valid. If additions are to be made, some leases provide space for "special clauses". Additional agreements can also be attached in Riders. Remember: the agreement in the rider supersedes any clause with the same content in the main body of the lease. If the lease you must sign has a rider, read it carefully, and make sure you agree to its terms. Landlord riders sometimes contain clauses that invalidate certain favorable terms in the main lease (e.g. subletting, repairs, penalties for late payment and others). As the rental market is becoming tighter and tighter and occupancy rates are very high, landlords are less and less likely to change terms of the lease and/or add new clauses to it. You may have to sign a “contract of adhesion”, which means you will have to adhere to whatever terms the landlord proposes and just rely on the federal, state and local laws and ordinances for protection, knowing that the right to a safe, habitable place, in compliance with the housing code, the right to privacy, quiet enjoyment, the duty of the landlord to maintain property up to code standards, the security deposit law cannot be overridden by a lease. TERMS OF THE LEASE 1. Tenants Are Jointly And Severally Responsible A lease will specify who the two parties signing the contract are. If several tenants sign a lease together they are jointly and individually responsible for the fulfillment of all terms. If a roommate leaves earlier or does not pay rent the landlord can pursue the remaining tenant for the entire rent. 2. Renewal Clauses Make sure you understand the renewal clause in the lease. Most leases renew automatically for a period of one more year or one more month. The end of term notice included in the lease specifies the amount of notice required in order to terminate lease on the stated date or to change terms of the lease. In most cases the notification time is 60 days, but some leases require 90 or even 180 days notice. The notice must be given by the 1st day of the month. If you want to terminate your lease you must give proper notice in writing, usually by certified mail, return receipt requested. If you fail to do so you may find yourself legally bound for another lease term. When a lease renews on a month-to-month basis with a 60 days' notice then you actually have a two-month to two-month lease. Likewise, if the landlord wants to raise rent or change terms he/she must also give you the required notice. The landlord, however, may not be asked by the lease to notify you with a certified letter. At renewal time, watch out for any correspondence coming from your landlord. Lack of response to a renewal notice may be construed as acceptance of the new terms. Also note that the landlord does not have to offer you a new lease. He/she can terminate the lease with the required notice and unless you can prove discrimination or retaliation, there is nothing you can do if negotiating a new lease does not work. 3. Rent Increase There is no rent control in Philadelphia. A landlord can increase rent by any amount provided proper notification is given and no violations of the housing code exist on the premises. The landlord cannot raise the rent in retaliation for the tenant exercising his/her rights. The Fair Housing Commission in Philadelphia assists with such cases. Also note that the landlord cannot increase rent when there are housing code violations on the premises. So if the property is in a state of disrepair, the landlord wants to increase the rent and you want to remain in the property, then, after you have signed the renewal, you can use this requirement of the Philadelphia Fair Housing to get the landlord to bring the property up to code. This always requires an inspection from Licenses and Inspections. Please contact our office for more details. 4. Possession of Premises A fair lease will specify that if unit is not ready for occupancy because of reasons beyond the landlord's control, the tenant can either wait till it is ready (and not pay rent) or can terminate lease and get the money back. Some leases ask the tenant to wait for a number of days. In either case, do not expect the landlord to pay for storage or hotel accommodation. 5. Sale of Property/Change in Management In case of sale of premises or change in management your rights to continue the lease are protected by law and by a fair lease. Do not let yourself pressured into signing new terms with the new owner/manager. Your lease should remain valid until it comes up for renewal. You must be notified in writing about the change in ownership and instructed as to who and how to pay your rent. Your previous landlord must transfer your security deposit to the new owner. The right to continue a lease in case of sale of premises is a waivable right and some leases contain a subordination clause, according to which the new owner can terminate lease or change terms, usually in the case of a foreclosure sale. No such termination is allowed without the notice indicated in the lease. 6. Access To Premises A landlord must always have access to the premises. In emergency situations the landlord can enter without giving notice. For routine inspections/repairs or showing apartment after tenant has given notice of lease termination, a fair lease will require the landlord to give 24 hours' notice. Many leases, however, ask the tenant to allow access to the premises during reasonable hours on business days. If you sign such a lease, this is what you will have to do. If you, however, feel your right to privacy is violated, you should address this problem in writing and ask for notification. Your rights to privacy and quiet enjoyment supersede any terms of the lease. 7. Purchasing Renter's Insurance Many leases recommend or require that tenant purchase renter's insurance. This is a very good idea. Your belongings are not protected by the insurance policy of the landlord. Unless you can prove negligence on the part of the landlord, and this is not always easy, you have no protection in case of fire, theft or any other loss situation. 8. Repairs The landlord is required by law to keep the property up to the standards of the Housing Code at all times. If the lease states that the landlord is not obligated to perform repairs, such a clause is illegal. Maintenance and normal wear and tear are the responsibility of the landlord. You are, however, responsible for repairing all damage due to your misuse, abuse or negligence. Painting and decorating the apartment and preparing it for the next occupant are not your responsibility, unless you have damaged the place beyond wear and tear. When you sign the lease find out what kind of hanging devices you are allowed to use and any requirements the landlord may have regarding decoration of the apartment. If your renting the apartment is conditioned upon the landlord's performing certain repairs/improvements which are not required by the Housing Code, such as changing carpet, replacing mirror, etc., make sure you write these repairs into the lease. Always put a time frame to your requests. Oral promises are not valid. Get everything in writing. If you have repair problems, request repairs in writing. If the landlord does not respond in a timely manner, write a certified letter, return receipt requested. Give the landlord a reasonable amount of time to fix the problem. If repairs are not done, write a second letter, also certified. If you get no response to the second letter, then you can consider using legal remedies, such as "Repair and Deduct", withholding rent or moving out and terminating lease. If you plan to resort to any of the above, we advise you to obtain additional information about the correct procedures from our office or from the Tenant Action Group. Better yet, consult an attorney. For rent withholding or lease termination obtain an inspection from the City of Philadelphia Licenses and Inspections. They will attest to the existing violations, the part of the apartment that is not habitable and the necessity for repairs. Do not withhold rent or move out without a prior L&I inspection and report. The Philadelphia Fair Housing Commission assists tenants not only with cases of alleged discrimination but also with serious repair problems. Contact our office for more information. For emergency situations, make sure you have an emergency contact number for your landlord and that a procedure for dealing with such situations is in place, preferably written into the lease. If you have no other way of convincing your landlord to fulfill the promises of the lease and you must withhold rent, put the rent money in an escrow account or set up a separate account with your bank and deposit the rent money on the day the rent is due. Provide the landlord with information regarding the account in writing. Better yet, call our office to find out the exact procedure and/or get a referral to University subsidized legal counsel. (You must be a Penn student to qualify for the referral.) 9. Utilities Make sure the responsibilities regarding payment of utilities are clearly outlined in the lease. If the landlord is responsible for payment of utilities, tenants are protected from utility shut off, if the landlord fails to pay for the utility bills. The tenant must pay the monthly bill to the utility company and can deduct that amount from the rent. If you are in such a situation, call our office to find out more about the Utilities Service Tenant's Rights Act. 10. Security Deposits What is a security deposit? A security deposit is an amount of money retained by the landlord and held in escrow for the duration of the lease term. It is used for any damages done to the property during the tenant's occupancy. A tenant cannot use the security deposit as rent payment. A security deposit differs from a deposit given before lease signing to remove the property off the market. Such a deposit, often as much as a one-month rent, is, in many cases, non-refundable, if the tenant changes his/her mind about renting and the landlord does not rent the apartment at its availability date. Once the lease is signed, the initial deposit is kept as security deposit. According to the Pennsylvania Security Deposit Law, a landlord can charge an amount up to or equal to two months' rent as security deposit in the first year of a lease. After the first year, the landlord can only hold a security deposit equal to one month's rent and must return to the tenant the amount exceeding one-month rent. While the security deposit is regulated by law, the way the rent is paid is not. That is how many landlords get around the requirements of the Security Deposit Law. By designating one month of pre-paid rent as last month rent they can have the tenant continue to pre-pay the last month rent in the second and subsequent years of a lease. While some courts may consider this as a disguised security deposit, others will enforce the terms of the lease regarding the payment of rent. At the beginning of the third year, the deposit must be placed in an interest-bearing escrow account. At the end of the third year and every year thereafter, the landlord must remit the interest to the tenant. He/she can, however, deduct 1% of the total interest for administrative costs. The law does not establish any required amount of interest. It only provides that the security deposit must be placed in an interest-bearing account. If the rent goes up the landlord can ask the tenant to make up the difference between the current rent and the amount of the deposit. After five years of living on the premises, the landlord may not increase the amount of the deposit. How to Protect the Security Deposit Inspect the premises upon move in; make a list documenting the condition of the apartment. You can use our Move In/Move Out Checklist or draw up your own (include holes, or marks on the wall, damage to floors and windows, any marred or broken appliances that came with the property). If possible, have the landlord inspect the property with you. If not, sign the list, mail it certified to the landlord, keeping a copy for yourself. This will ensure that you will not be charged for damage from the previous tenants. Pictures are also a good way of documenting condition of the unit. If the camera does not date, get the day’s newspaper into the picture. Before you move out, perform a similar inspection of the premises and draw up a similar list, take pictures, if you have a camera. Make sure you clean the apartment even if you did not find it clean when you moved in. The initial list and the final list should differ only in terms of "normal wear and tear". You are responsible for damages done through misuse, abuse and negligence Make sure you have given proper notice of termination and provided the landlord with written notification of your forwarding address. Use certified mail. If the landlord does not have your forwarding address, he/she is not required to return deposit. Proof that you have provided the landlord with your forwarding address is very important if you plan to use legal recourse to recover any wrongfully withheld funds. How to Get the Security Deposit Back The landlord has 30 days to return the security deposit to you after the termination of the lease. If the security deposit is not returned in full, because of claimed damages to the property, cleaning fees, unpaid rent or other charges, the landlord must supply you with an itemized list of the deductions and the remainder of the deposit, if any. Remember, you are responsible for leaving the apartment clean even if you did not find it so at the beginning of the term. You are responsible for damages done through misuse, abuse and negligence. It is very important to document items you feel the landlord may make you responsible for. Take pictures; use a video camera. Do not leave your furniture in the apartment, unless the landlord agreed to that in writing. Do not leave trash bags in the apartment, either. Ask the landlord for clear instructions of how to dispose of trash, if such instructions are not provided in the lease. If the landlord does not communicate with you in writing within the 30-day period required by law, he/she forfeits the right to withhold any money for damages or cleaning. He/she still can withhold for back rent and/or unpaid utility bills. If the landlord does communicate with you within the indicated timeframe but you do not agree to the list of damages or with the amount of money he/she is withholding, write a letter to your landlord, mail it certified, return receipt requested, contesting the charges and requesting immediate return of the money withheld. If you get no response, you can take your landlord to the Small Claims Court. In case there was no communication in writing within the 30-day period you can sue for up to two times the amount of the deposit. If you get a date in Court, you must be present, otherwise you lose your case. 11. Early Termination of Lease There is a difference between terminating a lease early because the landlord does not provide you with a habitable or fully habitable place or fails to fulfill other promises in the lease and terminating a lease early for personal reasons. If the former is the case, make sure you have followed all the procedures outlined in the paragraph about Repairs. If you don't do it right, you may not be able to prove that the landlord, not you, broke the lease. You may lose all the money on deposit and still owe rent until the end of the term or until a new tenant is found. If you are terminating the lease early for personal reasons, check your lease to see if there are any terms and conditions regulating such early termination. A lease is a consumer contract and the landlord cannot penalize you for early termination. The law in residential leases requires a landlord to mitigate damages for you and to make a diligent effort to re-rent the premises. It is also true that the landlord should not suffer any financial loss due to your early termination and he/she is entitled to collect rent until a new tenant is found and to all reasonable expenses incurred due to your early termination (i.e. advertising fees. realtor fees, if any). The best way to terminate a lease early is to find another tenant to assume the lease. Make sure the tenant has a background similar to yours in terms of ability to pay and credit history. While the landlord must make a diligent effort to re-rent, it is not easy for the tenant to verify whether the landlord has made a diligent effort to re-rent or not. If no tenant is found, you will be held responsible for the fulfillment of the terms of your lease. Always inform the landlord in writing of your need to terminate the lease early and ask that he/she also try to locate another tenant. It is better to work with the landlord in such situations than against him/her. Remember, the landlord must be made whole and he/she should not incur any financial loss. The loss of the security deposit in cases of early termination should not be automatic. If the landlord can justify the expense, then he/she is entitled to the money but the security deposit cannot be forfeited if there is no loss. Some leases specify a three-month penalty in cases of early termination. Such penalty fees can be challenged in court. If the landlord relieves you from the lease, you should make such a release agreement in writing. 12. Subletting Subletting is a way of getting out of a lease or of recovering some of the rental money when you get into a one-year lease but need to leave for a time. A lot of students sublet their apartments in summer. When things go well, subletting is a good way of temporarily transferring the obligations of a lease. However, when things go wrong, subletting can become a problem for the original tenant, for the sublessee, or for both. Here are some facts about subletting, which may prove helpful in avoiding unforeseen and unpleasant circumstance: When signing a lease, make sure that subletting is permitted by your lease. Most leases allow subletting but they require additional written consent by the property owner/manager. Consent cannot be unreasonably denied. Denial can only be based on financial assessment of potential subtenant, not on discriminatory factors. The landlord can charge a subletting fee. Check your lease to see if such a fee exists. Be aware that the original tenant is still bound to the terms of the lease, should the sublessee fail to fulfill any of the obligations of the lease. By the same token, the sublessee's obligation is to fulfill all the terms of the original lease. The subletter and the sublessee should both read and understand the terms of the original lease. This is the surest way to avoid problems that can arise later. Use a subletting contract. Do not rely on a verbal agreement. The Office of Off-Campus Living has such forms. Sometimes the landlord may provide you with the sublet lease agreement. Try to get as much rent up front and, if possible, a security deposit to cover possible damages. Inspect the premises carefully and document in writing the condition of the apartment, both when the sublessee takes over the premises and, if possible, at the end. Make sure the utility accounts and the telephone account do not remain in your name. If this is not possible, make some arrangements for advance payment or any other agreement fair to both parties. If in an apartment/house share situation, be aware that you are jointly and severally responsible for the total rental payment. If one original tenant found a subletter but the other did not, both original tenants are still responsible for the total amount of rent. The Office of Off-Campus Living has a wealth of resources available regarding landlord tenant law, landlord and tenants rights and responsibilities, housing and fire code regulations, sample leases and other related information. Call us, visit the office or visit our website, if you have any questions. We do not offer legal advice but can offer counseling and provide you with information on how to deal with your housing problems. |