Ask a Lawyer
By: Steven M. Williams
My lawyer tells me that he has to send a “Debt Validation Notice” to any delinquent tenants after I send the 20 or 30-day default letter before he can file an eviction complaint with the court. I have never heard this before. Is this true?
Yes. The Fair Debt Collection Practices Act (FDCP) applies to debt collectors collecting consumer debts and requires that they send certain notices to debtors. A debt validation notice states that the debt collector is attempting to collect a debt and explains to the debtor how he can dispute the debt. When lawyers are collecting rent (which is considered consumer debt) in an eviction proceeding, they are considered to be debt collectors and must send a debt validation notice pursuant to the Fair Debt Collection Practices Act. The notice must be sent with, or within 10 days after, an initial communication with the tenant. You may not have heard of this because owners of communities are not subject to the FDCP when collecting rent from their residents.
Is this an additional notice that I need to send out as the community owner? And does the debt validation notice delay the complaint filing?
No, as the community owner, you do not need to send the additional notice. Owners are creditors, not debt collectors, and therefore not subject to the Fair Debt Collection Practices Act. The notice should not delay the filing unless the tenant disputes the debt. In that event, the attorney needs to stop all collection action until they have provided information verifying the debt (e.g., the lease, ledger, default notices) to the debtor. In most cases, an attorney has everything and can get it out right away, and there would likely be no delay unless the dispute is made “on the eve of the hearing.”
I received an emotional support animal (ESA) verification letter from one of my residents. The letter contains all the information needed to qualify the ESA. However, a sentence says the statements in the letter expire in one year. Does this mean I can require the resident to re-qualify their ESA once the year ends?
I have been seeing more and more of these letters with expiration dates. Qualifying language like this means that at the “end date,” the animal no longer qualifies as an ESA. If the resident wants to keep the animal as an ESA, they would need to provide a new letter. Thus, you can advise your resident that the expiration date is approaching, and they need to send a new letter.
A lawyer representing several of my residents says that my rules and regulations are too broad and are illegal. Since I own the property, I can have whatever I want in the rules and regulations, right?
No, the Pennsylvania Manufactured Home Community Rights Act limits the scope of your rules and regulations. Section 398.4 allows only “fair and reasonable rules and regulations reasonably related to the health, safety and upkeep of the community.” While this can be interpreted quite broadly, there are certainly things that would fall outside of this. I suggest having your attorney review your rules and regulations with Section 398.4 in mind and advise whether any should be modified or removed.
Could you remind me of the time frames for default notices? I continue to run into problems with my Magisterial District Judge, who tells me that I never give the right notices.
Initially, your default notices must be in writing and sent via certified mail. Any other form of n is improper. Some owners like to hand deliver default notices, which is acceptable only if it is also sent via certified mail.
The timing of the notice depends on the reason for the default. When the default is nonpayment of rent, the default notice must state that an eviction proceeding may commence if:
- The resident does not pay the overdue rent within 20 days from the date of service;
- The notice is given on or after April 1 and before September 1 and within 30 days;
- If the notice is given on or after September 1 and before April 1.
The default notice should also state that an eviction proceeding may be commenced immediately if the resident fails to pay rent again within six months of the initial notice. In this case, you are not required to provide a second default notice.
If the default is a violation of the lease or rules and regulations, other than nonpayment of rent, the default notice must describe the particular violation and demand that it be cured within a reasonable time, which depends on the nature of the default. For example, a few days may be reasonable if the notice is given because a resident is parked illegally. But, if the notice is given because the skirting on the home is damaged and needs to be replaced, a month may be reasonable. Unfortunately, there are no clear guidelines for this. Each default will need to be evaluated based on the specific facts and circumstances. The notice should also state that if there is a second or subsequent default within six months, you can file an eviction action without further notice within 60 days of the last violation.
I have heard lawyers say that I need to give my residents a notice to quit before I can file an eviction case. Is this right, and what is a notice to quit?
A notice to quit is a written demand to a resident to vacate the property due to an uncured default. Unless the requirement to serve the notice to quit is waived in the lease, it must be given before the court will have the ability to hear the eviction case. Note that a waiver in a lease must be clear and conspicuous. I recommend that it be in all capital and bolded letters and not “hidden” among the other lease terms.
The notice to quit can only be served in one of three ways:
- Hand delivery to the resident;
- Posting on the resident’s home; or
- Posting conspicuously in the community where other notices are usually posted.
I generally recommend only the first two forms of service. The third can result in claims that the resident never saw the notice or that the notice constituted an invasion of the resident’s privacy (although I do not believe either are strong claims).
The form of the notice is also important. It cannot request that the resident contact you to discuss the default or its resolution. It also cannot direct the resident to vacate or cure the default. It must merely state that the resident must vacate due to the uncured default.
The timing of the notice is also important and depends on the type of default and time of year. If the default does not involve nonpayment of rent, the notice must provide the resident:
- 30 days to vacate if the lease term is less than one year;
- Three months to vacate if the lease term is one year or more.
If the default is nonpayment of rent, the notice requirement is:
- 15 days if the notice is given on or after April 1 and before September 1;
- 30 days if the notice is given on or after September 1 and before April 1.
