What To Do When A Tenant Withholds Rent

Is a tenant permitted to withhold rent in Pennsylvania if there are problems with the rental property?  In some cases, a tenant can withhold rent, but proper procedure must be followed. In most cases, tenants do not follow the proper procedure in withholding rent and are in breach of the Lease Agreement by withholding rent.

A typical scenario occurs when a tenant has a complaint about a certain problem existing on the property such as mold, lack of heat, water leaks, insect or rodent infestation, or code violations. The tenant has a duty to inform the landlord of the problem and give the landlord a reasonable period of time to fix the problem. In the event the landlord is not diligent in fixing the problem within a reasonable period of time, the tenant is able to exercise their remedies under law.

The tenant generally has three remedies when a landlord fails to make necessary repairs: (1) in the event of a serious breach rendering the property unfit for habitability, the tenant can declare the landlord in breach of the Lease Agreement, end the Lease Agreement, and vacate the premises; (2) the tenant can repair the issue themselves, notify the landlord of the same, provide the landlord with the cost of repairs, and deduct the costs from their rent; or (3) place ongoing rent into an escrow account, notify the landlord of the same, and release the rent from escrow once the landlord makes repairs.

The tenant is prohibited from withholding rent unless ongoing rent is placed into an escrow account. In the event rent is withheld without placing rent into an escrow account, the landlord can file eviction proceedings against the tenant. Please also be advised to consult an attorney before exercising remedies as each case must be evaluated based on their own facts and circumstances. A landlord is not required to provide a tenant with an absolutely perfect property. A landlord is only required to provide the tenant with a property that is safe and habitable. Remedies should only be exercised in the event of a serious breach rendering the property uninhabitable. In the event a remedy is exercised improperly, a tenant can be held responsible for unpaid rent, late fees, court costs, and attorney’s fees.

If you have a tenant that is withholding rent from you, please contact me to discuss your case. I am a landlord-tenant attorney located in Bethlehem, Pennsylvania, assisting clients in the Allentown, Bethlehem, and Easton area. Feel free to call me at (610) 417-6345.

What To Do When A Tenant Sues You For Their Security Deposit

In Pennsylvania, a tenant is required to provide the landlord with their forwarding address in writing in order to receive the return of their security deposit.  Once the landlord receives the tenant’s forwarding address, the landlord must then return the unused portion of the tenant’s security deposit with an itemized list of damages within thirty (30) days. A landlord is permitted to use the tenant’s security deposit to cover items related to physical damages, unpaid rent, and unpaid utilities that the tenant is responsible for under the terms of the lease. If an itemized list of damages is not sent to the tenant within thirty (30) days of receipt of the tenant’s forwarding address, the landlord will forfeit the right to withhold any portion of the tenant’s security deposit and the tenant is able to seek double the amount of the security deposit.

What if I sent the tenant a list of damages and the tenant still tries to sue me?

I’ve encountered this problem before where a client contacts me to inform me that they’re being sued by a former tenant after notifying the tenant that their security deposit is not being returned since the landlord’s damages exceed the amount of the security deposit. The tenant then tries to claim that they never received the itemized damages letter and now wants to file a lawsuit seeking double the amount of the security deposit (treble damages) for not complying with Pennsylvania’s Landlord-Tenant Act.

To avoid this problem, the letter containing the itemized list of damages should always be sent via certified mail. Sending the letter via regular mail creates the possibility of the tenant claiming that they never received the itemized list of damages.

Additionally, landlords should be more proactive in initiating legal action against the tenant before the tenant initiates legal action against them. Most landlords feel that it’s either too costly or may be a waste of time to chase around a tenant for additional money after the tenant has already vacated the property. However, not taking steps to recover the full amount of damages sets up a tenant to claim that they never received an itemized list of damages.

What to do if you’re being sued by a tenant for the security deposit.

In the event you’re being sued by a tenant for the security deposit, contact an attorney immediately. A counterclaim should be filed against the tenant for the full amount of the damages. A counterclaim must be filed at least five (5) days prior to the scheduled court hearing. Pa. R.C.P.M.D.J. 315.  The hearing would then be rescheduled between 12-30 days from the filing of the counterclaim.

Begin gathering important documentation about the case. Obtain the Lease Agreement, any correspondence (letters, emails, and text messages) between you and the tenant, the itemized list of damages, before and after photos, estimates, invoices, and receipts.

If you are looking for representation in any landlord-tenant matters, feel free to contact me by calling (610) 417-6345.  I am a landlord-tenant law attorney located in Bethlehem, PA, and primarily represent clients located in Northampton and Lehigh County.

Pennsylvania’s Elective Share For Disinherited Spouses

If your spouse has disinherited you from their Will, you may be wondering whether you have any rights or recourse. In this article, we explore Pennsylvania’s elective share. This law essentially establishes that a disinherited spouse can force the Estate to provide him or her with one-third of the decedent’s assets even when they have been deliberately excluded or disinherited from their spouse’s Will. If you have been disinherited in a spouse’s Will and need more information, feel free to contact me at (610) 417-6345.

SPOUSAL ELECTION IN PENNSYLVANIA

Can a spouse be excluded from receiving any assets from a deceased spouse?

At death, it is common for a deceased person to convey his or her assets to his surviving family members through a formal legal document, also known as a Last Will and Testament. Typically, this document illustrates the decedent’s decision on who gets property and who does not and it is common practice that spouses ordinarily leave money and property to their surviving husband or wife.  There may be incidences where the surviving spouse is excluded from inheriting any of the assets of a deceased spouse.  However, according to Pennsylvania law, it is against public policy for a surviving spouse to be completely disinherited and he or she spouse is permitted to either accept the provisions of the will or “elect against” the decedent’s estate known as the right of election. In other words, a will is not the final word on what happens to the decedent’s estate.

The right of election ensures that the surviving spouse receives a fair portion of the estate. Accordingly, under Pennsylvania law, the surviving spouse has a right to an “elective share” of one-third (1/3) of decedent spouse’s property or assets.  Therefore, when the will is administered, the surviving spouse can choose to either accept the terms of the will or receive a minimum “elective share” as defined in the statutes.

Note: It is important to note that the right of a surviving spouse to take an elective share may be waived before, during, or after marriage or before or after spousal death. For example, if divorce proceedings were underway during the time of death, willful neglect of the deceased spouse,  or a prenuptial agreement agreed upon by both parties prior to marriage stating that the surviving spouse has waived his or her rights to an elective share. This, in turn, disqualifies a spouse from making an election.

What property is subject to election?

According to Pennsylvania Law, the following property is subject to election:

  • Property transferred from the decedent by will or intestacy (when there is no valid will executed by the deceased person)
  • Income from property of the deceased spouse, which the decedent was entitled to receive during marriage provided that the deceased had the right to the income at the time of death
  • Property that was transferred during decedent’s life that the deceased person still had the right to revoke the transfer and assume the property or invade the principal for his or her own benefit
  • Property conveyed by the deceased person during marriage to the decedent and another with a right of survivorship (e.g. joint property)
  • Annuity payments to the extent that it was purchased during the marriage by the deceased spouse and the decedent was receiving annuity payments at the time of death
  • Property or gifts given by the decedent during the marriage within one year of death to the extent that the amount exceeds $3,000 per recipient.

What property is not subject to election?

The following property is not subject to election:

  • Any conveyance or transfer of property made with the express consent of the surviving spouse
  • The proceeds of life insurance policies of the decedent
  • Interests from any employer established pension, deferred compensation, retirement plans, profit sharing, etc. for the deceased
  • Property passing by the decedent’s exercise or non-exercise of any power of appointment given by a person other than the deceased

What is the process for taking an elective share and is there a specified time frame that an election must be made?

There are specific procedural requirements that need to be followed in order to claim an elective share. A surviving spouse that would like to claim an elective share must do so in writing and file the notice with the clerk of the Orphan’s Court in the county where the decedent lived and the will was probated.  The statement must be filed by the surviving spouse within 6 months of either the date of death or within 6 months of the date of that the will was probated – whichever date comes later.

Unemployment Benefits for Teachers – Explanation of Section 402.1(1)

Pennsylvania unemployment law states that teachers and professors will not be paid unemployment benefits between two successive academic years provided that there’s “reasonable assurance” given that they will perform services in a second academic year. Although this law is very clear for teachers and professors who are full-time employees and simply on a summer break, this can created problems for substitute teachers who perform services for a school on an “as-needed ” basis or in situations where a teachers’ employment status has been downgraded from full-time to part-time.

Section 402.1(1) is the section of the Pennsylvania Unemployment Compensation Law that applies to teachers not being able to collect unemployment benefits between academic years as long as they are given “reasonable assurance” of returning for the next academic year. A contract of employment will certainly considered “reasonable assurance” of returning work the following academic year. A bona fide offer of employment will also be considered “reasonable assurance.” A bona fide offer is one in which the terms for the second academic year are not substantially less than that of the first academic year.

If you are a teacher whose employment status has changed and have been denied UC benefits under Section 402.1(1), please contact me. You may have received a Notice of Determination denying your unemployment benefits, but you have 15 days to file an appeal to request a UC referee hearing on the denial. If you can establish that the school did not give you “reasonable assurance” of continuing employment or that the school’s offer was not bona fide because, for example, your work schedule or compensation has been dramatically reduced, you could be entitled to unemployment benefits.

I am an unemployment compensation attorney located in Bethlehem, Pennsylvania, and would be happy to discuss your case with you. Please feel free to call me at (484) 362-9286.

Can unemployment benefits be denied for negligence involving property damage?

If you were terminated from your job because you accidentally damaged your employer’s property or equipment due to an accident, you may face difficulty obtaining Pennsylvania unemployment compensation (UC) benefits. Accidents are typically caused by what is considered negligent conduct. While a casual act of negligence would not lead to a denial of unemployment benefits, certain acts of negligence could lead to a denial of unemployment benefits.

In order for negligence causing property damage to lead a denial of UC benefits, the conduct must rise to the level of willful carelessness. The UC referee deciding the case will typically look for some conduct which would indicate some level of culpability or fault on the part of the employee.

In some cases, it’s easy to differentiate between negligent conduct which should lead to a denial of benefits and conduct which should not. However, it’s not always clear cut. Employers will typically try to argue the frequency of events to show that the conduct resulted in willful carelessness. For example, if an employee breaches safety protocol and is issued a warning and the employee violates the same type of protocol which results in the same type of property damage, that may be construed as willful carelessness since the employee was put on notice on what specific procedures are required to be followed.

But what if the accident is the first incident resulting in property damage? If that’s the case, the referee deciding the case will simply have to examine all of the facts and circumstances to reach a determination. The most common type of situation where I’ve seen property damage eligibility issues come up is in the context of fork lift operators. Conduct which would lead to a denial of benefits would be speeding on the forklift or a blatant disregard of safety protocols.

Keep in mind that in most contexts, negligence which results in damage to property or equipment will not result in a denial of unemployment benefit unless the employer is able to establish that the negligence was the result of willful carelessness. The employer bears the burden of proof on this issue which is important to note.

If your UC benefits have been denied by the UC Service Center or your employer is filing an appeal, feel free to contact me for a free consultation by calling (484) 362-9286. I am a UC attorney that represent claimants located in the Lehigh Valley of Pennsylvania and surrounding areas.

How Severance Pay Affects PA UC Benefits

On January 1, 2012, Act 6 of 2011 went into effect, which made some very important changes to Pennsylvania’s Unemployment Compensation Law. The most important aspect of this law was the way severance pay was treated with respect to calculating an employee’s unemployment compensation benefits. In some cases, severance pay may act as an offset against unemployment benefits which would reduce the amount of unemployment benefits a person can receive.

Prior to Act 6, employees could collect unemployment benefits regardless of the amount of severance received from their former employer. After the enactment Act 6, an offset is taken into consideration. The offset uses a formula to determine the amount of the offset based on “40% of the average annual wage.” Currently, “40% of the average annual wage” equals $17,853, which is subject to change. An employee can receive up to 40% of the average annual wage until their unemployment benefits are affected.

This means that if your severance award is less than $17,853, your unemployment benefits will not be affected. Any severance award you receive over $17,853 will reduce your unemployment benefits on a dollar-for-dollar basis. Severance agreements reached prior to January 1, 2012, will not be affected by this law. When applying for PA UC benefits, it’s important to notify the Department of Labor if you are receiving any severance so they can properly calculate the unemployment benefits you may be entitled to.

If you have any questions regarding your PA UC benefits, please feel free to contact me at (484) 362-9286.