Alan Nochumson.On July 1, Philadelphia Mayor James Kenney signed into law what is now known as the Emergency Housing Protection Act (EHPA), a package of bills intended to provide relief to renters in Philadelphia affected by the COVID-19 pandemic.
The EHPA extends the statewide eviction moratorium through Aug. 31 for Philadelphia, requires landlords to enter into hardship repayment agreements with tenants who are experiencing financial difficulties due to the COVID-19 pandemic, requires mediation between landlords and such tenants before evictions can take place, and imposes significant civil and criminal penalties on landlords and others who utilize self-help measures against defaulting tenants.
Who Is Eligible?
The eviction moratorium not only applies to most residential tenants, but also to “small business” tenants.
A small business tenant is defined as one which has fewer than 100 employees.
Eviction Moratorium
Under the EHPA, through Aug. 31, residential and small business tenants in Philadelphia may only be evicted in order to cease or prevent an imminent threat of harm, including physical harm or harassment.
Additionally, from Sept. 1 through May 31, 2021, the EHPA severely restricts the ability of landlords to evict their tenants due to the nonpayment of rent as a result of the COVID-19 pandemic.
Mandatory Hardship Repayment Agreements
Under the EHPA, if the tenant fails to pay rent in a timely fashion, the landlord must inform the tenant, in writing of the tenant’s rights to a “mandatory hardship repayment agreement for tenants with a certified financial hardship as the result of the COVID-19 pandemic.”
Any residential or small business tenant that has suffered financial hardship due to COVID-19 and has failed to pay rent as normally due from March 1 through Aug. 31, has the right to enter into a hardship repayment agreement with their landlord.
According to the EHPA, the written notice must contain “clear information on how the tenant may exercise such rights, including the following specific text or such other language that may be included in a form created by the city … : You may be eligible for certain housing protections. If you have experienced a financial hardship due to the COVID-19 this may include, but is not limited to, a nine-month repayment plan to pay past due rent. You must provide your landlord a certification of hardship to qualify for some of these protections.”
The written notice must be sent by the landlord to the tenant via hand delivery or certified mail with proof of mailing.
The landlord must then give the tenant 30 days after tenant’s receipt of the written notice for the tenant to exercise the tenant’s right to enter into a hardship payment agreement before the landlord can take any action against the tenant.
Under the EHPA, such a tenant is considered in full compliance with any lease payment obligations so long as the tenant: enters into a hardship repayment agreement under terms and conditions mandated by the EHPA; issues a certification of financial hardship to the landlord; and provides the landlord with documentary evidence of loss of income or increases in expenses the tenant has incurred since March 1 as a result of the tenant’s financial hardship or, if such documentation cannot be reasonably provided, a further certification explaining why such documentation is not available.
The EHPA separately sets forth what constitutes “financial hardship” for residential and small business tenants.
In the case of a residential tenant, the residential tenant must certify to the landlord that he has lost income due to the pandemic as a result of any one or more of the following: the loss of employment; the inability to commence or obtain employment; the reduction of work hours offered to such tenant or such tenant’s household member or a reduction in the salary or hourly wage paid to such tenant or such tenant’s household member, whether permanent or temporary; the inability to work as the result of a requirement by a state or local directive; a diagnosis of COVID-19; the need to quarantine or self-quarantine due to the advice of a health care provider because of symptoms exhibited relating to COVID-19; the need to care for a family member or a member of the tenant’s household due to COVID-19 or as the result of the closure of a school, daycare, adult care facility or other care facility where care would otherwise be provided for such family or household member; the inability to work as the result of such tenant or such tenant’s household member being at a greater risk of harm than the general population if such person or such person’s household member contracts COVID-19; or the need to financially support a family member due to the family member or a household member of such family member’s loss of income for any one or more of the reasons set forth above.
In the case of a small business tenant, the small business tenant must certify to the landlord of a documented loss of income due to the pandemic as a result of one or more of the following: a state or local requirement or recommendation that businesses in a particular area, or a particular type of business, remain fully or partially closed; the owner or operator, a key employee, or a significant number of employees of the small business tenant being unable to work for the same reasons set forth as financial hardship for a residential tenant, or the loss of customers or reduction of business from customers as a result of the pandemic or related state or local governmental recommendations or requirements.
If the tenant qualifies for a hardship repayment agreement, the tenant is obligated under the EHPA to pay past due rent under the following terms and conditions: the tenant must pay the full amount of past due rent to the landlord within nine (9) months after Aug. 31, or, in other words, by May 31, 2021; (beginning Sept. 1, and every month thereafter, the tenant must pay the full monthly rate of rent as normally due under their lease arrangement with the landlord, together with, at a minimum, the lesser of 30% of the full monthly rate of past rent due or the total amount of past due rent divided by nine.
Under the hardship repayment agreement, the landlord is prohibited from charging any late fees or other charges related to past due rent.
The EHPA does allow the city to create a certification of hardship form and a hardship repayment agreement form which may be used by the parties.
Residential Eviction Diversion Program
Under the EHPA, the Fair Housing “Commission or such other city department or office as the mayor may designate, is authorized to establish a residential eviction diversion program.”
The EHPA envisions the implementation of a residential eviction diversion program consisting of “a conciliation conference between a landlord and tenant that has experienced a COVID-19 financial hardship to mediate an agreement for asserted residential lease violations,” “a designated mediator and housing counselor that participates in the conciliation conference, and “a designated housing counselor that engages with the tenant prior to the conciliation conference to educate and discuss available resources.”
If such a residential eviction diversion program is implemented, the landlord is prohibited from taking steps in furtherance of recovering possession of a residential property occupied by a tenant who has suffered a COVID-19 financial hardship, other than providing written notice of the right to enter into a hardship repayment agreement with the landlord, without first participating in a conciliation conference, unless eviction is necessary to cease or prevent an imminent threat of harm by the person being evicted, including physical harm or harassment or the landlord has provided the affected tenant with notice of the tenant’s right to enter into a hardship repayment agreement (and how to exercise such right) and the landlord has contacted the eviction diversion program to schedule a conciliation conference but the program is unable to offer a date for a conciliation conference within 30 days of the landlord’s initial request to schedule the conciliation conference. However, if a conciliation conference does not occur within the 30-day period of time and the landlord commences eviction proceedings, the landlord is required to participate in the conciliation conference when it becomes available prior to a judgment for possession being issued.
Civil and Criminal Penalties for Self-Help Eviction Activities
If a landlord or others engage in self-help eviction activities, under the EHPA, a tenant may contact the police to obtain assistance in regaining entry into the leased premises. If that should happen, the landlord must establish that the eviction action undertaken was lawful by making available to the police a copy of the relevant writ of possession or by verifying the existence of the writ to the police.
The EHPA directs the Sheriff of Philadelphia County as well as the court-appointed landlord/tenant officer to maintain records of all issued writs for possession so that verification of legal process may be readily obtained.
If the landlord is unable to produce a copy of the relevant proof of lawful execution of a judgement of possession or other verification thereof, the tenant is entitled to regain possession of the leased premises immediately and the landlord is prohibited from blocking or inhibiting re-entry in any way.
Any tenant who is restored possession of the leased premises has the right to terminate their lease agreement with the landlord without any penalty.
Any person who engages or assists in such self-help eviction activities is subject to a fine or penalty of not less than $100 nor more than $300 as well as potential imprisonment not exceeding 90 days for each offense.
The EHPA also creates a private cause of action for any individual who has been the victim of self-help eviction activities. That individual may recover, for each such violation, actual damages, reasonable attorney fees and court costs to the extent allowed by law, punitive damages not to exceed $2,000 per violation, and such other relief, including injunctive relief, as the court may deem appropriate.
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.
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