Ask a Lawyer: Safety Issues
By: Steven M. Williams
I am getting a lot of complaints about residents walking around with guns in plain view. Many residents are nervous about this and ask that I ban guns in the community. I don’t believe I can prohibit guns in the community because residents have a Second Amendment right to have them. Can you provide some guidance on how I can handle this?
People are always quick to quote the Second Amendment in these situations. But only some people quote it correctly. The Second Amendment only speaks to what the government can and cannot do regarding gun ownership. The Second Amendment does not prohibit non-governmental entities from controlling guns. Thus, an employer can prohibit guns in the workplace. And landlords can prohibit guns on their property. If you want to ban all guns from your community, you have the legal right to do so. However, would a complete ban actually work? Your residents will not likely get rid of their guns, and a judge would probably not evict a resident merely because he owns a gun. I generally suggest that landlords have rules that relate to the “use” of guns on the property, not mere ownership. These types of rules are more practical and are more easily enforced. Here is an example of a gun rule that I suggest would resolve many of your residents’ concerns and would likely be enforced by a judge: “No bows and arrows, BB guns, pellet guns, rifles, handguns or any other similar weapon may be brandished, openly carried or discharged on the Premises or anywhere in the Community.”
As a follow-up, I have called the police on many occasions about residents openly displaying, waving around, and discharging firearms in the community. The police always tell me that this is private property and they cannot do anything for me. How can that be?
Many municipalities have ordinances that prohibit the discharging of weapons in the municipality. Where such ordinances do not exist, the responses you received are probably correct. If no law is violated, the police are not likely to be quick to assist. Getting the police to respond may be dependent upon the complaint made. For example, a call to the police about someone walking around with a gun may not get much urgency, whereas a call to the police about someone walking around threatening others with a gun may.
I have a tenant with an unruly and unauthorized resident living with him. Can I evict just the unauthorized resident? Or must I evict the entire household?
An eviction terminates one’s right to occupy a property. Thus, evictions can only be used to remove “tenants” from the household. A “tenant” is someone who has signed a lease or is otherwise bound to the lease terms. The word “tenant,” however, does not include someone who is not authorized to live in the home. A magisterial district judge does not have the power to “evict” an unauthorized occupant. Rather, if you wish to get rid of an unauthorized occupant, you have two choices:
- You can evict the tenant because he allows the unauthorized occupant to reside in his home. The eviction of the tenant will include the removal of the unauthorized occupant. Or,
- You can file an “ejectment” action in the County Court of Common Pleas seeking just the removal of the unauthorized occupant. An ejectment action removes people who are not authorized to live on the property. By contrast, an eviction terminates a tenant’s right to live there.
I recently evicted a tenant to whom I rented a home and lot. Unfortunately, the tenant left many belongings in the home, and my efforts to reach her have failed. Do I have to go to the Magisterial District Court and obtain a Determination of Abandonment to dispose of the tenant’s belongings?
No. The Manufactured Home Community Rights Act (MHCRA) abandonment process does not apply here because your tenant leased the home and the lot from you. The process only applies when a tenant owns the home and rents only the lot from you. In your case, you must go through the abandoned property process in the Landlord and Tenant Act. This process requires you to send a letter to the tenant via first-class mail addressed to the home she rented from you and also send it to any forwarding address and emergency contact you may have for her. The letter must give your address and phone number and notify the former tenant that she left the property behind and that she has ten days from the postmark of your letter to contact you if she wants her belongings. If the former tenant does not contact you within ten days from the date you mail the notice, you can dispose of the belongings in any manner you choose. If the tenant does contact you within ten days from the date you mailed the notice and tells you that she wants her property, you must store it for her for 30 days from the date you mailed the notice. If the tenant does not collect her property within those 30 days, you can dispose of the belongings in any manner you choose. “Disposal” includes donating the property, giving it away, discarding it, keeping it, or selling it. If you sell the property, you can apply the sale proceeds to any debt the former tenant owes to you. If there are any excess proceeds, you must send them to the former tenant.
I know that the MHCRA has a specific process and timing for providing default notices to tenants. But I just cannot seem to keep it straight. Can you provide a refresher on this?
The MHCRA requires that you serve default notices as a prerequisite to an eviction. As you suggested, the default notice process can be complicated and has several steps. Default notices must be sent by certified mail and describe the conduct that constitutes the default. The description should include citations to the relevant paragraphs of the lease and rules and regulations. Default notices should also state that if the tenant commits another default within six months of the notice, you can file an eviction action immediately without providing another default notice. Finally, default notices must provide a period of time within which the tenant can cure the default. The timing depends on the nature of the default and the time of year. In the case of nonpayment of rent, the default cure period is 20 days if the notice is given on or after April 1 and before September 1, and it is 30 days if the notice is given on or after September 1 and before April 1. In the case of a non-monetary default, the cure period is a “reasonable time.”What constitutes as a reasonable time depends on the nature of the default and how fast it can reasonably be cured.
NOTE: If your lease does not contain a valid waiver of the notice to quit that is required by the Landlord and Tenant Act, you are also required to serve a notice to quit (NTQ) after the default cure period ends before you can file an eviction complaint. Unlike default notices, an NTQ cannot be mailed. It must be personally served on the tenant, posted conspicuously on the tenant’s home (e.g., the main entrance), or posted conspicuously in a public area of the community where other notices are posted. (As an aside, I always recommend one of the first two service options, not the third.) Once you serve an NTQ, you cannot file the eviction complaint until the statutory “wait-period” expires. For nonpayment of rent cases, the “wait-period” is 15 days if the NTQ is served on or after April 1 and before September 1, and 30 days if the NTQ is served on or after September 1 and before April 1. For non-monetary breach cases, the “wait-period” is 30 days if the lease term is less than one year and 90 days if the lease term is one year or more.
