Alan Nochumson. Alan Nochumson.

Last June, I wrote an article about a ruling that Judge Lisa Rau handed down from the bench in Houston v. Analaris Homes, 2019 Phila. Ct. Com. Pl. LEXIS 6 (Jan. 30), regarding a claim made by a former tenant against her former landlord based upon a private cause of action she initiated under the city of Philadelphia’s Lead Paint Disclosure and Certification Law (the ordinance), Phila. Code Section 6-800.

Earlier this year, Rau issued a written opinion in connection with the appeal currently pending before the Pennsylvania  Superior Court in Houston. In this opinion, Rau explains in detail why she denied the former tenant’s claim under the ordinance.

Until the Superior Court ultimately decides the merits of the pending appeal, this opinion, for the time being, should provide guidance to landlords and tenants alike in Philadelphia regarding such claims under the ordinance.

First things first, I would like to discuss the framework of the ordinance.

The ordinance requires that landlords in Philadelphia to certify that “targeted housing,” which is defined in the ordinance as any pre-1978 residential “dwelling units in which children aged 6 and under” resides, is “lead free” or “lead safe” before the leased premises can be so rented.

According to the ordinance, such a residential landlord must obtain a written certification from a certified lead inspector, an individual who is certified by the city of Philadelphia’s Department of Public Health as qualified to conduct comprehensive lead inspections and risk assessments, that the property containing the leased premises is so lead free or lead safe.

If a property owner fails to do so, the ordinance allows a residential tenant renting targeted housing to, among other things, seek and obtain an “abatement and refund of rent for any period in which the lessee occupies the property without a certification having been provided.”

In other words, residential landlords who fail to comply with the ordinance may be obligated to reimburse their residential tenants for all rent paid to them while the leased premises were not so certified under the ordinance.

The facts, as set forth by Rau in the opinion, are rather straightforward.

In Houston, Monique Houston rented a single-family house from Analaris Homes in 2015, the opinion said. Before she entered into a written lease with Analaris Homes, Houston completed a written lease application.

In the lease application, Houston did not disclose that any children would reside at the home while she was living there, the opinion said.

After submitting the lease application, the parties entered into a written lease.

Nowhere in the written lease did it provide that any children would so reside in the home, the opinion said.

During her physical possession of the house, Houston never complained about the habitability of the house or the lack of the lead certification set forth in the ordinance, the opinion said. When Analaris Homes elected not to extend the lease term, Houston reluctantly moved out of the house, the opinion said.

Afterwards, according to the opinion, Houston sought the legal advice of a tenants’ organization and soon discovered the existence of a potential private cause of action under the ordinance.

Soon thereafter, Houston had her children tested for lead, the opinion said.

According to the opinion, although the blood tests on her children did indicate some level of lead exposure, it fell within the acceptable range of lead exposure and there was no evidence that the exposure occurred at the home.

Nonetheless, Houston filed such a claim under the ordinance in the Philadelphia County Court of Common Pleas, whereby she, among other things, sought a complete refund of the rent she paid to Analaris Homes over the course of the lease term, the opinion said.

A bench trial subsequently ensued before Rau.

During the bench trial, Houston admitted that she did not disclose the existence of the children residing in the home in the lease application or the lease itself, but that Analaris Homes knew of their existence while she lived there, the opinion said.

While the representative from Analaris Homes testified at trial that she knew that children would be living there, at no point did she state that she knew the ages of these children, the opinion said.

At trial, Houston claimed that she provided the representative of Analaris Homes with a birth certificate of one of the children, the opinion said.

At the bench trial, Rau found that Houston clearly failed to establish that she met the ordinance’s requirements for relief and, thus, issued a directed verdict against her and in favor of Analaris Homes.

In the opinion, Rau cautioned that “the ordinance was not intended to be used by a former lessee attempting to get a windfall against a prior lessor who chose not to renew a lease” or “to benefit former lessees who lied on their lease application and lease agreement only to turn around and sue after the lease term had been completed.”

Exhibiting her utter disdain for Houston, Rau bluntly stated that “permitting such a frivolous claim would permit former lessees to game the system and would do nothing to further the city’s council objective to prevent the scourge of childhood lead poisoning.

In the opinion, Rau contended that the ordinance does not apply because the home was not targeted housing, as defined in the ordinance.

Rau concluded that the term targeted housing is “defined in relation to the formation of new leases, not ones that terminated months previously.”

Specifically, in interpreting the language of the ordinance, Rau pointed out that the “terms ‘lessor’ and ‘lessee’ are used exclusively throughout the ordinance, and the technical and ordinary usages of these terms preclude a claim when there is no existing lessor-lessee relationship.”

Rau also emphasized that allowing former tenants, like Houston, to sue under the ordinance “would … do nothing to further city’s council’s intent to protect children from lead hazards, “ since “no possible health risk existed when the suit was filed because Houston moved out of the premises” already with her children.

In reaching this conclusion, Rau noted that a claim under the ordinance is not available “to prior lessees to bring claims against a prior lessor to retroactively recoup rent after a lease agreement has been satisfactorily completed and when no issues were raised during the existence of the lease.”

In a more scathing portion of the opinion, Rau indicated that Houston’s claim was denied under the ordinance also simply because she failed to disclose in the lease application and the lease itself that a young child would be living at the house.

In her own words, “ensuring that a premises is free of hazards to young children necessarily entails having advance notice that young children will be living in the premises” and Houston’s “signed affirmances are admissions” in the lease application and the lease itself regarding the lack of children residing in the house, precluding a claim under the ordinance for that reason alone.

Lessons Learned

 

According to the attorney representing Analaris Homes, David Denenberg, oral argument in the appellate proceedings has been scheduled. As such, I would expect that a written opinion will be issued by the Superior Court sometime later this year.

In the meantime, Rau’s ruling in Houston provides that only current, not former, tenants may maintain a private cause of action under the ordinance.

Furthermore, for the time being and possibly into the indefinite future, every landlord of residential property in Philadelphia built before 1978 should include a lease provision specifically indicating whether a child aged 6 or younger will be residing in the leased premises during the lease term.

If the tenant answers untruthfully in the lease, the landlord would have an argument, based upon Rau’s ruling in Houston, that it had no obligation under the ordinance to provide the tenant with a lead certification for the premises.

Unlike the factual circumstances of Houston, however, if the landlord has credible and actual notice of the existence of such a child residing in the leased premises, the landlord will have the decision of either evicting the tenant and others from the leased premises for allowing others to reside there without the landlord’s permission or to obtain such a lead certification under the ordinance for the leased premises.

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.