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Defending Philadelphia Lead Paint Law (Section 6-800)

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Phila. Code Section 6-800 (“PLDCL”) has become an increased source of litigation in recent years. Many tenants will sue landlords under the ordinance for violation of the Code. The law requires landlords to certify that Targeted Housing is “lead safe.” Targeted Housing is property built before 1978 that is rented to a Tenant with children aged six or under. Pursuant to the Ordinance, a landlord must provide the tenant with a certification the property is “lead safe.” This certification must be completed by a qualified lead inspector. If the landlord does not provide this certificate they may be subject to civil liability in court. The tenant’s lawsuit may include claims for rent paid, exemplary damages, attorneys fees, court costs, and any damages arising from lead contamination. In most Lead Paint Disclosure Law cases the children has little or no actual contamination. The case is predicated on landlord’s failure to provide a Lead Safe Certificate as required by Section 6-800. The Plaintiff’s attorney may argue that Phila Code Section 6-800 is a strict liability statute, meaning there is no effective defense. However, there are multiple defenses to a Philadelphia Lead Law Claim including but not limited to the following:

1. No Lessor / Lessee Relationship

In order to bring a claim against landlord for violation of the PLDCL, the Plaintiff must be a tenant. The law specifically applies to the lessor and lessee relationship (i.e., rental properties). Therefore, if the owner can argue the Plaintiff is not a tenant there is no liability. This is what happened in Houston v. Analaris Homes2019 Phila. Ct. Com. Pl. LEXIS 6 (Jan. 30). In that case, Tenant sued landlord for violation of Section 6-800. In court the tenant testified they vacated the Property before filing the Lead Claim Lawsuit. The judge granted a motion for directed verdict to defendant (landlord). In her opinion, the Court reasoned that 6-800 requires a lessor/lessee relationship. Here, the lease was terminated before the tenant filed the lawsuit. Therefore, tenant was not legally entitled to damages under the statute because there was no lease. The judge further opined that 6-800 is not intended as a “windfall” for disgruntled tenants who leave on bad terms. While this case is not binding precedent, it is persuasive authority that the PLDCL only applies to current tenants.

2. Property is Not Targeted Housing

Another defense to the PLDCL may be to argue the property is not Targeted. In order to have obligations under the Code, notice may be required that Tenant has children. If the lease does not reference children or specifically excludes other individuals from the Property, Landlord may have a viable defense. Further, if tenant is bringing unauthorized individuals into the Property, the landlord may argue they are not legally responsible for compliance with the PLDCL since tenant is in breach. The burden is on the Plaintiff (tenant) to prove violation of the statute by a preponderance of the evidence. Therefore, the landlord may successfully defend a claim under the PLDCL if they were unaware of the presence of children, or if the Tenant was not permitted to have other individuals in the property. In a recent case, our firm successfully defended a PLDCL claim against a Landlord of a one-bedroom apartment. The Landlord was unaware the male tenant had children. The children resided with tenant only on weekends pursuant to a custody agreement. The judge held that the lack of notice precluded recovery of damages under the law. The burden is also on the Plaintiff (tenant) to prove the Property was constructed before 1978, and is therefore Targeted Housing within the meaning of the statute. Finally, if Tenant owes rent Landlord may argue that Tenant is seeking a “windfall” after defaulting on their own obligations.

Philadelphia City Council and the Municipal Court are serious about compliance with PLDCL 6-800. If landlord does not confirm his property is “lead safe” civil penalties may apply.

3. Renewal Leases are Excluded

Pursuant to Section 6-803(3), “no lessor shall enter into a lease agreement with a lessee, other than a renewal lease, to rent any Targeted Housing unless he provides the lessee with a valid certification prepared by a certified lead inspector stating the the property is lead free or lead safe.” A landlord may argue a lease renewal does not require the Certificate. This defense may be effective if the lease pre-dates the passage of the law in 2012. Further, a landlord may be able to successfully argue their actions were reasonable under the circumstances. For example, if a tenant has no children but then becomes pregnant during the tenancy and has a baby, the landlord may argue reasonable compliance with the law. For example, if Tenant promptly seeks out a lead inspector and certifies the property, he may successfully defend against the claim. While reasonable actions would ultimately be subject to the determination of a judge, special circumstances may overcome the “strict liability” language of the PLDCL.

4. Automatic Right to Appeal

In Philadelphia, a party has an automatic right to appeal small claims from Municipal Court. This means either side can appeal the case and start again. The appeal will vacate any judgment entered against the landlord in Municipal Court. The landlord will then effectively “start over” with the case in the Court of Common Pleas. In order to successfully appeal a judgment, Notice of Appeal must be filed with the Clerk of Courts within thirty (30) days of entry of the order. The Plaintiff must be served with a Rule to File Complaint within thirty days of the appeal. If Plaintiff is not served, the appeal may be stricken for noncompliance with Pa.R.C.P. 400. An attorney can assist you in filing the appeal. After the appeal is filed the landlord may choose Arbitration. If the case proceeds to arbitration three lawyers sitting as judges will deliberate on the case. Following arbitration there is another automatic right to appeal. The entire appeal process may take months or in some cases years. This means that if you are a landlord with a defensible case, you may have up multiple chances to win. It may be sensible to consider appeal where settlement is disadvantageous.

5. No Damages

Another defense to the PLDCL may be lack of damages. If tenant is suing for back rent, they must prove by a preponderance of the evidence that rent was paid. In many PLDCL cases there is no lead contamination. The lawsuit is essential over failure to provide the Certificate to Tenant before they vacated the Property. Under such circumstances, arguing lack of damages or inability to prove damages, may be an effective defense. Finally, a counterclaim against tenant may be appropriate where rent was paid untimely, tenant defaulted, or damaged the property at move-out. The Landlord may successfully argue the PLDCL claim is essentially retaliatory for the tenant’s own delinquencies (rental defaults, chronically delinquent and late rents paid, breach of lease, etc.).

Winning a Lead Law Claim

While the PLDCL is a “strict liability” statute, there are defenses to any claim. In many PLDCL cases there are no significant damages for noncompliance with the law. Despite the tenant having suffered no injury they sue landlord for significant amounts of money under the PLDCL. In such situations, consider an aggressive defense . An experienced Philadelphia Landlord Tenant Lawyer may assist you in defending against the Lead Law Claim and/or settling for a nominal payment. If you have been sued under the PLDCL contact our office to setup a free, no obligation consultation.

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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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