Alan Nochumson. Alan Nochumson.

A recent decision handed down by Judge Lisa M. Rau in Houston v. Analaris Homes, No. 161101449, may provide much guidance to landlords and tenants alike under Philadelphia’s Lead Disclosure and Certification Law (PLDCL) which is codified under Section 6-800 et seq. of the Philadelphia Code.

With a few exceptions, the PLDCL applies to any landlord who rents a residential property built before 1978 to new tenants who will be living in the property with a child who is 6 years old or younger.

While the Philadelphia Property Maintenance Code already requires landlords of a residential property to correct any issues relating to the residential property, the PLDCL goes a step further and essentially obligates the landlord to certify that the property is lead safe before a child who is 6 years of age or younger may move into the residential property.

If the landlord does not so comply with the requirements set forth under the PLDCL, Section 6-809 of the PLDCL specifies that the tenant can personally initiate a lawsuit against the landlord.

In any such lawsuit, under Section 6-809 of the PLDCL, the tenant may obtain exemplary damages up to $2,000 against the landlord, reimbursement of the rent paid by the tenant to the landlord, and the imposition of reasonable attorney’s fees and costs against the landlord.

Over the past few months, I have had multiple conversations with attorneys who represent landlords in Philadelphia and, time and time again, the biggest concern of these attorneys and their landlords is the ability of the tenants to seek the reimbursement of all of the rent paid by the tenant to the landlord under the PLDCL.

Rau’s ruling in Houston may shed light on how trial court judges in Philadelphia may react to this request for relief by a tenant under the PLDCL.

In Houston, in 2015, Monique Houston and others expressed interest in renting a single-family dwelling located in Philadelphia from Analaris Homes, LLC. The property in Houston was built before 1978. Before Houston rented the property from Analaris Homes, she submitted a rental application. In the rental application, Houston did not acknowledge that her son, who, at the time, was 4 years old, would be living with her at the property.

After reviewing the rental application, the parties entered into a written lease agreement. The rent due under the written lease agreement was $850 per month. While residing at the property with her son, Houston allegedly paid a total of $10,650 in rent to Analaris.

On good terms, Houston and her son found another property to live in. A couple of months after they vacated from the property, her son allegedly began experiencing medical issues. According to Houston, these alleged medical issues were the result of lead exposure during the time in which she and her son resided at the property. Houston then sued Analaris Homes under the PLDCL.

Among other things, Houston sought reimbursement of the $10,650 she allegedly paid to Analaris Homes under the written lease agreement entered into by the parties.

A bench trial presided by Rau subsequently occurred.

At the conclusion of Houston’s presentation of her case, Analaris Homes moved for a directed verdict.

Of particular note, Analaris Homes argued that Houston had no right to sue it under the PLDCL based upon the underlying factual circumstances. According to Analaris Homes, Houston could not obtain relief under the PLDCL because that ordinance only applied to lessors and lessees and, at the time the lawsuit was initiated, Houston was not a “lessee,” as she was admittedly out-of-possession of the property at the time.

In response, the plaintiff argued that the PLDCL was not passed to require tenants to remain in a property that could be dangerous for their children in order to assert their rights under the PLDCL by filing a lawsuit first.

After hearing the arguments made by the parties, Rau ultimately concluded that the PLDCL did not apply because the lessor-lessee relationship had already been terminated when Houston initiated the lawsuit against Analaris Homes and, thus, granted Analaris Homes’ motion for a directed verdict.

In doing so, Rau stated that the PLDCL “does not include any provision to permit some retroactive ability to sue by former lessees” and “that when somebody is not longer a lessee, they cannot go back and sue claiming that they should have been given notice.”

Since the PLDCL does not define the terms of lessor or lessee, Rau indicated that these terms should be “defined as it is in the ordinary course of the law, which is somebody who is in a contract relationship regarding a lease.”

Houston has since filed a post-trial motion, requesting that the directed verdict be set aside and the judgment entered in favor of her and against Analaris Homes under the PLDCL.

Lessons Learned

Rau’s ruling in Houston provides a glimpse of how trial court judges in Philadelphia may, in the future, handle some lawsuits initiated under the PLDCL.

Assuming the directed verdict remains, tenants in Philadelphia who relinquish possession of a residential property may be prevented from suing their landlords for any violations committed under the PLDCL.

Alan Nochumson is the sole shareholder of Nochumson P.C., where his law firm’s primary practice areas consist of real estate, litigation, land use and zoning, business formation and general counseling and appellate advocacy. He is also president of Bear Abstract Services, where his title insurance company offers comprehensive title insurance, title examination and closing services. He can be reached at 215-399-1346 or alan.nochumson@nochumson.com.