Tenant Not Entitled to Rent Abatement Stemming From Landlord’s Lead Paint Suit

Written by: Alan Nochumson

Can a long-term tenant sue for rent abatement and reimbursement of legal fees and costs for their landlord’s failure to comply with the city of Philadelphia’s lead paint disclosure and certification laws in a renewal lease? For a long-term tenant living in an apartment unit in the Haddington neighborhood of West Philadelphia the answer is no.

The Pennsylvania Superior Court in Hand v. Fuller, 2023 Pa. Super. LEXIS 158 (Apr. 20, 2023) dealt with a number of important legal issues that long-term tenants and those living in older buildings may be unsure about. These issues included whether a tenant’s original lease from 17 years prior was still operative, or whether a new lease had been executed where the tenant’s rent increased, and what the corresponding landlord’s duties related to lead paint were based upon when the operative lease was effectuated.

The tenant originally sued her former landlord for over $40,000 pursuant to Philadelphia’s lead paint disclosure and certification ordinance (the ordinance) which is contained in Chapter 6-800 of the Philadelphia Code.

The tenant had already moved out and was hoping to recoup her rent for five years because, as she alleged, her landlord had failed to provide her with a valid lead paint certification prepared by a lead inspector stating the property was lead free or lead safe after she allegedly executed a new lease in 2013, the opinion said.

In Hand, the trial court granted the landlord’s motion for a compulsory nonsuit and denied the tenant’s motion to remove the nonsuit.

The tenant then appealed to the Pennsylvania Superior Court.

On appeal, the tenant argued the trial court erred in concluding that her lease was a “renewal lease” exempt from the current lead-based paint disclosure requirements, among other things.

The odinance was enacted in 1995 to assist the city of Philadelphia’s Department of Public Health in identifying, reducing, and combating lead poisoning in Philadelphia’s children, recognizing that the most significant remaining source of environmental lead is lead-based paint in residential dwellings built prior to 1978.

The ordinance requires sellers and landlords of properties built before 1978 in which a child age 6 or under will reside to disclose to buyers and tenants the absence or presence of lead-based paint or lead-based paint hazards.

Notably, the lawsuit in Hand highlights how much landlord disclosure duties regarding lead-based paint have changed since its enactment in 1995.

According to the Superior Court in Hand, while tenants in operative long-term leases or renewal leases from the early to late 2000s and before may only be owed duties by landlords, tenants entering into leases today have greater rights and remedies available for failures to disclose the existence or nonexistence of lead-based paint.

Today, the Superior Court in Hand emphasized that neither new nor renewed leases (including automatic renewals) for properties built prior to 1978 can be entered into until the landlord has provided the tenant with a valid certification prepared by a certified lead inspector stating that the property is either lead free or lead safe; the tenant acknowledges receipt of the certification by signing a copy; and the landlord has provided to the city of Philadelphia’s Department of Public Health a copy of such certification.

At their own expense, buyers have a 10-day period to obtain a comprehensive lead inspection or risk assessment from a certified lead inspector. If the inspection reveals lead-based paint or lead-based paint hazards on the property, the buyer has five days after receipt of the inspection to terminate the purchase contract. Failure to do so constitutes a waiver to terminate the written agreement upon these grounds. Tenants have the same right except that they only have two business after receipt to terminate the lease.

Where a landlord does not comply with the provision of the ordinance the tenant shall be entitled to bring an action in court and is entitled to remedies including exemplary damages up to $2,000, abatement and refund of rent for the period the tenant occupied the property without being provided the requisite certification, and reimbursement of the legal fees and costs so incurred. Of particular note is that a notice requirement, requiring tenants to notify their landlord in writing before filing suit, has been removed from the current version of the ordinance.

However, for the reasons that follow, the Superior Court in Hand applied provisions of the ordinance which have since been amended or removed entirely, requiring it to put together a complex puzzle of duties and liabilities when interpreting the ordinance and the tenant’s “leases.”

During her 17 years of occupancy, the tenant in Hand alleged that she and her landlord executed a second and third lease agreement in 2006 and 2013, respectively, the latter of which included a rent increase, provided for an additional child occupant, and a lease term that would be month-to-month, the opinion said.

Concurrently with the tenant’s occupancy at the property, the city of Philadelphia’s lead paint disclosure requirements were amended several times, requiring the Superior Court in Hand to put together a complex puzzle of duties and liabilities when interpreting the ordinance and the tenant’s “leases” in Hand.

At the outset, the Superior Court in Hand determined that the tenant had only renewed her original 2002 lease and that no new lease had been executed. In doing so, the Superior Court made this determination based on the language of the lease and the conduct of the parties— importantly, the 2002 lease stated that “in the event neither Landlord or the Tenant give notice of non-renewal to the other, the lease will continue for another term … with the rest of the lease remaining the same.”

Additionally, the Superior Court in Hand pointed out that the lease stated that any changes must be written and signed by both the landlord and the tenant to be enforceable. In other words, even though her rent increased in 2006 and 2013, the tenant never executed a new lease and the lease literally stated it would automatically renew if neither side gave the requisite notice.

Next, the Superior Court determined that the ordinance only applied to an existing landlord-tenant relationship (i.e., tenants cannot sue after their lease term is already over). In making this finding, the Superior Court adopted the holding of a trial court’s ruling made in the Philadelphia County Court of Common Pleas in Houston v. Analaris Homes, No. 01449, 2019 Phila. Ct. Com. Pl. LEXIS 6 (Phila. Ct. Com. Pl. Jan. 30, 2019). This determination marked a threshold standing issue which would effectively bar tenants from suing their landlords retroactively.

Can holdover tenants sue under the ordinance? Where is the line drawn for who is a tenant? The language used by the Superior Court in Hand that the ordinance only covers parties in an “existing lease relationship” and that a tenant cannot bring a claim “after a lease agreement has been satisfactorily completed” may be grounds for further judicial interpretation in the Philadelphia Municipal Court and beyond in the coming years.

Lastly, the Superior Court in Hand concluded that a notice requirement, which has since been removed in the 2017 amendment to the ordinance, still applied to the tenant because her lawsuit was premised upon a new lease allegedly executed in 2013.

The Superior Court also determined that a list of repairs that mentioned paint but did not specifically express concern about lead paint did not satisfy the tenant’s notice requirement.

Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

Reprinted with permission from The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.