Action By Landlord To Recover Possession Of Real Estate

How a Landlord Lawfully Recovers Possession Of Real Estate

Actions to recover possession of real estate may be brought in the courts of common pleas or in magisterial court. If a landlord seeks to recover rent or damages in excess of $8,000.00 the action should be brought in the court of common pleas.  (42 Pa.C.S.§§1515(a)(2) & (3) and 1123 (a)(3).

Filing a complaint

The tenant must first be served written notice to quit, either personally, by leaving it at the principle building upon the premises, or by conspicuous posting on the leased premises.  Unless the lease provides otherwise, where the tenant is in breach, and the lease is one year or less or for an indefinite time, the tenant must be given 15 days to vacate.

A complaint should then be filed, laying venue where all or part of the real property is located.  The complaint, usually on a printed form, must include the following information, signed and verified by the plaintiff:  (RCPMDJ 502A through C) (RCPMC 109(C)

  1. The names and addresses of the parties
  2. The location and address, if any, of the real property in issue
  3. That the plaintiff is the landlord of that property
  4. That the landlord rented or leased the property to the defendant or to some other person under whom the defendant claims
  5. That notice to remove was given to the defendant in accordance with law, or that no notice was required under the terms of the lease (68 P.S. §374)
  6. That: (a) the term for which the property was leased or rented is fully ended; (b) a forfeiture has resulted by reason of a breach of the lease conditions; or (c) rent reserved and due has, upon demand, remained unsatisfied
  7. That the defendant retains the real property and refuses to give up possession
  8. The amount of rent, if any, which remains due and unpaid on the date the complaint is filed (including any additional rent due and unpaid at the date of the hearing), and the amount of damages, if any, claimed for injury to or unjust detention of the real property.

The court will set a hearing date between seven and fifteen days after the complaint is filed.  Any cross-claims arising out of the occupancy and within the court’s jurisdiction must be filed as a separate complaint before the time set for hearing.  (RCPMDJ 504 & 506) (RCPMDJ 508)  Each party must be given five days notice. (RCPMDJ 506; 508)

The court will serve the defendant by first class mail and by personal or substitute service, or as a last resort, by conspicuous posting on the premises.  However, if the plaintiff seeks judgment for rent or physical damages and plans to garnish wages under RCP 3311, the defendant must be served personally. (RCPMDJ 506; RCPMC 111) A defendant who appears personally or by representation, or who files a claim in the case, waives any defect in service (but not a defect in venue).  (RCPMDJ 507)

The court procedure

One continuance (two if for cause) may be granted by the court or by agreement of the parties, to a specific time and date as noted on the original complaint form.  The hearing may not extend beyond thirty days from the date the plaintiff’s complaint is filed.  The judge will give written or other notice of a continuance to the parties or their attorneys of record. (RCPMDJ 209)

If the defendant fails to appear, a default judgment for possession and costs, and for damages and rent, if claimed, may be entered.  But, the plaintiff must nevertheless appear and present testimony.  (RCPMDJ 504; 512A)  The judge is bound by the rules of evidence, but certain documents made in the regular course of business, such as receipts, bills or estimates, may be introduced without evidence of authenticity.  The judge will determine issues such as whether notice to quit was required or properly given, the amount of rent due, and damages to the leasehold premises, if any, the amount of monthly rental and the amount of the security deposit held by the landlord, if any.

If the plaintiff proves the case, judgment will be entered delivering the real property.  Separate judgments will be entered for any:

  1. Amount of rent which remains due
  2. Damages for unjust detention
  3. Physical damages to the leasehold premises
  4. Costs of the proceeding

The judge also must make an entry identifying the sum of monthly rental for the leasehold premises. (RCPMDJ 514A) (Rules 1008B and 1013B) (42Pa.C.S.§8127 & Chapter 36)

Judgment must be entered within three days after hearing and written notice, detailing the appeals process in the court of common pleas, given promptly. (RCPMDJ 514C)  (RCPMDJ 514D)

After the court’s judgement is rendered

A landlord who recovers possession under a residential lease may request an order of possession between 10 and 120 days after judgment is entered. (RCPMDJ 515) (RCPMC 126)  The court will issue the order, directing the executing officer to deliver actual, possession of the real property to the plaintiff. (RCPMDJ 516A)

The order for possession and for defendant to vacate will be served upon the defendant in the same manner as a complaint within 48 hours after the executing officer receives it.  The order may be personally delivered to a defendant, or to an adult temporarily in charge of the premises, or as a last resort, by posting the order conspicuously on the premises. (RCPMDJ 519) (RCPMDJ 517) (35 P.S. § 1700-1; RCPMDJ 503; RCPMDJ 509)

Landlords under a residential lease may request that the order be reissued within 120 days from the date judgment is entered, or within 120 days from the date any appeal, writ or certiorari or supersedeas is terminated, or a bankruptcy stay is lifted. (RCPMDJ 516)

Where a landlord recovers possession based solely on failure to pay rent, a defendant may at any time before the order is executed, satisfy it by paying to the executing officer the rent actually in arrears, i.e., the sum set forth in the order, and the costs of the proceedings.  Upon payment, a signed receipt should be obtained from the executing officer. (RCPMDJ 518)

The executing officer must make a return on the order within five business days following delivery of possession to the plaintiff or satisfaction by payment of rent in arrears and costs.

A judgment for any money damages from injury to or unjust detention of the premises, or for rent remaining due and the costs of the proceeding, may be executed by levy upon personal property upon request in accordance with the magisterial district court rules. (RCPMDJ 521)

A creditor-landlord in a residential lease may attach wages in satisfaction of a final judgment for rent or physical damages to leased premises provided that the defendant had been personally served with notice of the underlying landlord-tenant action, or the defendant appeared or filed papers in the action.  (Pa.C.S. § 8127 (a)(3.1) Rules 3301 et seq. (RCP 3301(b).

 

 

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