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Removing Unwanted Occupants

By: Brian Carter, Esq. on in

A potential client calls you very excited about a property she purchased the day before at a sheriff’s sale.

The price was great, the property is in a good location with respectable schools, the title was fairly clean and her drive-by of the property showed it to be in reasonable visible condition. You set up a time to meet at the property in a couple of weeks after the deed is recorded to see what it would take to get it in shape to list for sale.

When you meet at the property, a locksmith is quickly able to unlock the front door… but you enter to find a family still living there. What now?

This type of situation has been asked several times on the PAR Legal Hotline. The answer was recently clarified based on a Pennsylvania Supreme Court decision firmly shutting and locking the door on the new owner being able to use the eviction process.

In Assouline v. Reynolds, the court unanimously held the Landlord and Tenant Act cannot be used to remove an occupant when no landlord/tenant relationship existed. Assouline purchased the property occupied by the Reynolds family at a sheriff’s sale. Although Assouline had an immediate right to possession after the sheriff recorded the deed, the Reynolds refused to move despite multiple requests.

In an effort to gain possession, Assouline filed with the local magisterial district judge to evict the Reynolds under the Landlord and Tenant Act. Assouline convinced each lower court that this eviction process was allowed.

The Supreme Court soundly rejected this argument, however, holding that the relationship between Assouline and the Reynolds never met the criteria of landlord and tenants. Without that relationship, the court held the owner of the property could not evict the occupants based on the Landlord and Tenant Act.

The court also held that the magisterial district judge lacked the authority to hear the case. This left Assouline back at square one, with the family illegitimately occupying the property since Assouline purchased it in 2015.

So what other options may be available? Though the occupants are arguably trespassing, it may be difficult to convince the police to become involved. Self-help (just going in and throwing them out) is an unreliable alternative because Pennsylvania law is unclear whether it is even available to the owner. That really leaves an ejectment action as the lone viable option in this scenario.

Ejectment is available in any situation where the current occupant was not a tenant and refuses to leave. This includes a prior owner who fails to move after no longer holding an ownership interest, a squatter, or even someone that occupies a rental but is not on the lease.

To seek ejectment, the owner must file a complaint in the common pleas court in the county where the property is located. The proceedings follow all of the formalities of a traditional civil lawsuit, so an owner should definitely hire an attorney to ensure the requirements of an ejectment action are followed.

One of the more significant downsides with ejectment versus eviction is that an ejectment action will generally take far longer. The absolute best case scenario is obtaining a court order for possession around 30 days after the occupant is served. But because of the standard time frames and options with civil litigation required for due process, the reality is that it will likely take at least several months for a court to enter an order awarding possession and allowing removal of the occupant.

And while there may be other options to sue for the damage related to this occupancy, those results would be uncertain and would potentially lengthen the timeline to get a final decision for possession of the property.

 

Editor’s Note: We will not be publishing comments with suggestions with “workaround” suggestions for this issue.

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Comments (15)

Comments

  • Richard Xander   January 3, 2020 at 7:54 am

    Legislation is clearly necessary to address this problem, though it might not be too common. My eyes have been opened to the problems involved with eviction and trying to collect damages from a tenant who would not pay, let alone a squatter. Far too much burden on property owners trying to remove people who misuse the system. Once again, we are seeing that buying at sheriff sale is not for the faint of heart.

    Reply to Richard Xander
  • Cary Loyd   January 3, 2020 at 8:23 am

    I always understood that lack of a written lease was considered a verbal month to month requiring only a 30-day notice to vacate and then file for possession. I guess I was wrong. Good article.

    Reply to Cary Loyd
    • Hank Lerner, Esq.   January 3, 2020 at 11:09 am

      Cary:
      It’s important to note that the occupants of the property were the prior owners, and there was never any lease between them and the new purchaser. There might have been a different outcome if there’d been some sort of expired lease involved, but the Supreme Court here is saying that a lease doesn’t appear out of thin air just because someone happens to live in a property.

      Reply to Hank Lerner, Esq.
  • Joyce Skillman   January 3, 2020 at 8:30 am

    Owners have been successfull to get squatters out by giving them money. Like thousands or paying a years rent on another property. Squatters have to be out in 14 days to receive they payout.

    Reply to Joyce Skillman
  • Tom Woods   January 3, 2020 at 9:35 am

    I think Philly recently passed a law allowing the Police the right to immediately remove squatters.

    Reply to Tom Woods
  • Jeff Wright   January 3, 2020 at 10:25 am

    Doesn’t the lease stay with the property? While the new owner would have to make contact with the former owner to get a copy of the lease, how would purchasing a property at sheriff sale be any different from the traditional sale of a tenant-occupied property? Maybe it depends on the wording of the lease to assign the rights to heirs and future owners, or maybe an Assignment of Rents would have been necessary. However, I do agree that the new owner can’t simply evict existing tenants for no cause.

    Reply to Jeff Wright
    • Hank Lerner, Esq.   January 3, 2020 at 11:03 am

      Jeff:
      The issue in this case is that the people living in the house were the prior owners of the property – there was never any lease at all. The PA Supreme Court here affirmed that where there was no lease in place before the sheriff sale, the continued presence of the occupants after the sale doesn’t somehow morph into a landlord-tenant relationship.

      Reply to Hank Lerner, Esq.
  • deborah goodling   January 3, 2020 at 11:12 am

    Good Information! There are homes in York County that are being sold with current occupant in property, and unable to view the interior. This is wonderful for answering questions for my investors who buy these homes!

    Reply to deborah goodling
  • jeff goldstone   January 3, 2020 at 11:16 am

    I guess it gets complicated if somebody breaks into a vacant house …. the police come immediately after they get inside with their ” suitcase”, and refuse to leave on grounds they are now a squatter & have rights. woah! ( even assume there was no damage to the house– just a forced window )

    Reply to jeff goldstone
  • D. Scott Lee   January 3, 2020 at 11:42 am

    This is definitely an eye-opener! I still question why the judges feel that the “occupants” have a right to live in a property that they clearly do not own. I wouldn’t want to see legitimate owners be put out of their homes (that’s a whole other taxation argument), but the burden of proof of ownership should be placed on these “occupants”. If they cannot provide same or fail to show up in court, then the sheriff immediately evicts.

    Reply to D. Scott Lee
  • Ralph Rossi   January 3, 2020 at 1:47 pm

    One problem that the Police face is who is the owner ? The owner of record ? The bank ? Who can legally file a complaint? As a appraiser we come across this a lot in NJ also.

    Reply to Ralph Rossi
  • John Ebeling   January 3, 2020 at 2:39 pm

    Would it be wise to approach the occupants and offer them a 30-90 day lease at a minimal rent amount (or maybe $0 rent)? This would give them time to find another residence while you establish a landlord tenant relationship. Then you would have more rights to evict if necessary at the end of the lease term.

    Reply to John Ebeling
    • Hank Lerner, Esq.   January 3, 2020 at 5:43 pm

      The new owner would need to assess the pros and cons of various options. Although offering a lease could make a future eviction somewhat easier, voluntarily becoming a landlord creates additional burdens on the new owner under the landlord-tenant laws. Best advice to any such buyer who is faced with this sort of situation is to speak with an attorney who can offer up thoughts on the best way to go.

      Reply to Hank Lerner, Esq.
  • Brian W. Carter, Esq.   January 6, 2020 at 9:32 am

    In September 2018 the City of Philadelphia adopted an ordinance to fast track the court process to remove squatters. The ordinance was amended a couple of months later in an effort to protect victims of lease fraud. I am not sure how well the underlying fast-tracking process is working.

    Reply to Brian W. Carter, Esq.
  • Dan Caparo   January 23, 2020 at 10:00 am

    John Ebeling, yours is a wise strategy but i wouldn’t make it zero. My clients have incorporate an attractive lease signing with prior owners who didn’t have a landlord tenant relationship. So, as you said try to establish one and once they don’t pay, take it away under the landlord tenant act.

    Reply to Dan Caparo

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