Notice to Vacate

Notice to Vacate

A landlord must adhere to state and local requirements in drafting a Notice to Vacate.  If the Landlord’s notice does not comply with the law and code the tenant may raise the procedural deficiencies as a defense.  In Pennsylvania, the Notice must state the basis for ending the lease (i.e., the tenant is not paying rent, the lease is up, the tenant has broken the lease).  The notice must be provided to the tenant in a manner that confirms delivery (i.e., FedEx, Certified Mail, Personal Service or posting to the premises).  The notice should also provide the specific date the landlord expects the tenant to vacate the property, the balance due (if any), and any specific breaches of the lease committed by the Tenant.  The Notice should be as specific as possible.  The Landlord and Tenant Act of 1951 explicitly requires landlords to provide tenants with a Notice to Vacate.  However, many landlords will draft leases that waive the notice to vacate requirement.  If the Tenant has waived the notice requirement in the written lease then it is not legally required to proceed with an eviction.

HOW MUCH TIME DOES THE TENANT HAVE TO VACATE?

Pursuant to the Landlord and Tenant Act of 1951, a Notice to Vacate for a one-year term is fifteen days for breach of lease; thirty days for termination of term; and ten days for nonpayment of rent.  In Philadelphia County, Landlords must complete a thirty day Eviction Diversion Program before filing for eviction and send the Tenant a Notice of Diversion Rights in addition to the Notice to Vacate. Since the Landlord is required to participate in the Program for thirty days prior to filing for eviction it may not matter in most cases whether the Landlord provides ten, fifteen or thirty days to vacate since the Program will take about thirty days.

CAN I FILE AN EVICTION THE SAME DAY I FILE A NOTICE TO VACATE?

The Philadelphia Municipal Court will accept a Landlord-Tenant complaint for filing before the expiration period of the notice to vacate, however the notice to vacate termination period must have expired before the hearing date.  In Philadelphia county Landlords must also complete a thirty day Eviction Diversion Program before applying for eviction.  Therefore, whether the Landlord provides 10, 15 or 30 days notice to vacate in most cases may be immaterial as the Tenant is entitled to 30 days under the Philadelphia Eviction Diversion Program.

§ 9-804(12) Philadelphia Requirements for Notice to Vacate

Philadelphia County has heightened requirements for issuance of a notice to vacate. In Philadelphia, a Landlord must state a specific “good cause” basis for lease termination where the tenant’s lease is for less than one year. The “good cause” basis is specifically defined by the ordinance as the following:

       (.1)   Habitual non-payment or habitual late payment of rent by the tenant.

         (.2)   Breach of or non-compliance with a material term of the tenant’s lease or rental agreement.

         (.3)   The tenant engages in nuisance activity that creates a substantial interference with the use, comfort or enjoyment of the property by the landlord or other tenants in the building; or that substantially affects the health or safety of the landlord or other tenants in the building.

         (.4)   The tenant causes substantial deterioration of the property beyond normal wear and tear.

         (.5)   The tenant, after written notice to cease, refuses the landlord access to the unit for lawful purposes, such as to make repairs or assess the need for repairs, to inspect the premises for damages, to show the premises to insurance or mortgage companies, or during an emergency.

         (.6)   The tenant refuses to execute an extension of a written lease, that is set to expire, for materially the same terms.

         (.7)   The owner of the premises or a member of the owner’s immediate family is going to move into the unit.

         (.8)   The tenant refuses to agree to a proposed rent increase or other proposed changes to a lease (for example, a new no-pets policy, the elimination of parking, or charging more for utilities), but only if the following conditions have been met:

            (.a)   The landlord has provided the tenant with the option to accept the proposed rent increase or proposed other change to the lease. The option shall be included in the notice required by subsection (11)(a) (“Landlord Notice to Tenant of Rent Increase”) or, if no notice is required by subsection (11)(a), in a notice provided to the tenant that comports with subsection (11)(a).

            (.b)   The tenant must accept the option no later than fifteen (15) days prior to the expiration of the current lease, or else the tenant will be deemed to have declined the option. The tenant must accept the option in writing, by hand delivery or by first class United States mail with proof of mailing; provided that the tenant may accept the option by other means acceptable to the landlord so long as the landlord provides a receipt confirming that the acceptance has been received.

            (.c)   The landlord intends and reasonably expects to apply the proposed rent increase or proposed change to the next tenant, if the current tenant rejects the proposed terms.

         (.9)   The owner of the premises will not be renting out the premises during upcoming renovations, but only if the following conditions have been met:

            (.a)   The owner provides notice of non-renewal of the lease at least 60 days prior to the date the premises must be vacated.

            (.b)   The owner returns to the tenant any outstanding security deposit as promptly as possible prior to the date of move-out, but in no instance later than provided for by Section 512 of The Landlord and Tenant Act of 1951, 68 P.S. § 250.512.

            (.c)   The owner provides to the tenant the option to renew the tenancy at the market rental rate when the premises become available again for rental, other than for rental to a close family member.

If the Landlord does not provide a specific good cause basis in their notice to vacate the Tenant may raise the failure to adhere to local code as an affirmative defense to an eviction action for possession of the Property.

Contact a Philadelphia Attorney to Draft a Notice to Vacate

Our Philadelphia Eviction lawyers have experience drafting a notice to vacate that complies with both state and local requirements. We ensure the Notice is properly served via confirmed delivery (personal service, certified mail, or FedEx confirmed delivery). Once served we also ensure Landlord is compliant with all Philadelphia Eviction Diversion Program and Local Code compliance requirements including but limited to, Philadelphia Lead Disclosure Law, Certificate of Rental Suitability, Partners for Good Housing Handbook, Philadelphia Bed Bug Addendums and related requirements. Our Philadelphia Landlord Tenant Lawyers will ensure you are ready to successfully prosecute your case in Court to obtain an order for possession under the law. For a free consultation contact our Philadelphia Eviction lawyers at 267-535-9776.

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Author:

Mark D. Copoulos

Mark D. Copoulos

From 2008-2011 Mark D. Copoulos worked for the First Judicial District, the Honorable Arnold, and the Honorable Shelley-Robins as interns and/or staff....

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