(1) Legislative Findings.
(a) Criminal and defiant trespassers create a condition that could erupt in violence endangering lives and promoting the prospect of injuries to persons and damage to properties, all of which poses a serious risk to the public health, safety and welfare.
(b) Criminal and defiant trespassers have no rights to occupy residential property as against the rights of the current owner or authorized agent of said residential property. Owners of residential property in Philadelphia have full rights over and to their residential property as provided under Pennsylvania law.
(c) There is also confusion about whether criminal and defiant trespassers are tenants. They are not, and have none of the rights of tenants.
(2) Definitions. The following definitions apply to this Section 10-840.
(a) Alleged Criminal and Defiant Trespasser. A person who the owner of a property or authorized agent of said owner alleges is criminally and defiantly trespassing on the owner's residential property under this Section 10-840.
(b) City of Philadelphia Appropriate Eviction, Ejectment Proceedings, and Emergency Housing Fact Sheet. A fact sheet created by the Law Department in consultation with appropriate City offices and departments, which shall, at a minimum:
(.1) Explain the procedures for eviction or ejectment available before the Court of Common Pleas and Municipal Court, and emergency preliminary injunction proceedings in the courts.
(.2) Explain the procedure set forth in this Section 10-840 as well as the limitations on self-help evictions set forth in Chapter 9-1600.
(.3) Provide contact information for legal resources available to homeowners such as local legal services agencies and the county bar association's lawyer referral service.
(.4) Provide contact information for agencies that may be able to assist in obtaining housing services.
(.5) Provide contact information for legal resources available to persons seeking shelter such as local legal services agencies and the county bar association's lawyer referral service.
(c) Criminal and Defiant Trespasser. A person who is not an owner of the subject residential property; and is not a victim of domestic violence, sexual harassment, or stalking under subsection 9-3201(8) of the Code that has been perpetrated by an owner of such property or by another person who is or had recently lived with such victim in such residential property; and who occupies residential property without any of the following:
(.1) title, including by adverse possession of the residential property under Pennsylvania Law;
(.2) permission of an owner of said residential property, a prior owner of said residential property with legal authority to grant such permission at the time it was granted, a tenant of such residential property with legal authority to grant such permission at the time it was granted, or an authorized agent of any of the foregoing;
(.3) any other interaction with an owner of said residential property, a prior owner of said residential property, or an agent of either of the foregoing, that would indicate a relationship recognized as a landlord-tenant relationship pursuant to the Pennsylvania Landlord-Tenant Act of 1951, April 6, 1951 (P.L. 69, No. 20), as amended, 68 P.S. §§ 250.101 et seq. (the "Landlord-Tenant Act"), with respect to said residential property;
(.4) the payment of a deposit, rent, or rent substitute to an individual whom such person believes in reasonable good faith is either an owner of the residential property or has the authority to rent such property; or
(.5) any other legal claim to reside in the residential property, including a claim to legal or equitable title of such residential property, including but not limited to such a claim asserted by:
(.a) a former owner of a residential property sold at tax sale claiming a right to redeem before the end of the redemption period under Pennsylvania law;
(.b) an individual who is a buyer of the residential property under an installment sales contract;
(.c) an individual to whom the property has been conveyed pursuant to an unrecorded deed;
(.d) an individual with a right to reside in the residential property under the federal Protecting Tenants at Foreclosure Act.
(d) Owner. The holder or holders of legal, equitable, or record title to a residential property. The term shall include an heir, assignee, trustee, or beneficiary.
(e) Owner or Authorized Agent Affidavit Alleging Criminal and Defiant Trespassing. A signed affidavit by the owner or authorized agent of such owner that states the following to the best of the affiant's knowledge, information and belief after such affiant has made a reasonable good faith attempt to determine the truthfulness of the facts being asserted and includes such other information as prescribed by the Police Department:
(.1) The affiant is the owner of the residential property located at a given address or the authorized agent of such owner. As the term is used throughout this affidavit an owner is a person who holds legal, equitable, or record title to a residential property, and shall include an heir, assignee, trustee, or beneficiary.
(.2) A person who does not have a claim to reside in the residential property, such as those referenced in subsections 10-840(c)(.1) through (.5) of The Philadelphia Code, including a claim that such person is an owner of such property, has entered and remained on said residential property without the permission of an owner of such property.
(.3) The affiant has never had a landlord-tenant relationship regarding the property with the person currently occupying the property, or provided oral or written authorization or permission to the person or persons currently occupying the property to occupy the property, nor has any agent or personal representative established such a relationship on the affiant's behalf.
(.4) No owner of the property, including a prior owner, established a landlord-tenant relationship, or provided oral or written authorization or permission to authorize the person or persons to occupy the property, nor has any agent or personal representative done so on such other owner's behalf.
(.5) The affiant is requesting assistance from the Philadelphia Police because the affiant believes a crime is being committed.
(f) Residential Property. All property legally used or held out for individuals to live in, regardless of whether such property is occupied by the owners of said property, rented, or vacant. The term shall also include the residential portion of a mixed-use building or development. For purposes of Section 10-840, "residential property" shall not include a plot of ground exclusively used to cultivate herbs, fruits, flowers, or vegetables.
(3) Prohibited Conduct.
(a) No person shall knowingly engage in activity that qualifies such person as a criminal and defiant trespasser.
(b) No person shall make a material statement such person knows, or should know, to be false in an attempt to either (.1) force an alleged criminal and defiant trespasser to vacate a property, or (.2) otherwise cause an alleged criminal and defiant trespasser's removal from a property. Nor shall any person fail to correct a material statement such person subsequently learns to be false. A statement is material if it could or has affected a determination of whether an alleged criminal and defiant trespasser is a criminal and defiant trespasser under this Section 10-840.
(4) Police Procedures.
(a) General Rule. A law enforcement officer having probable cause to believe that a person on residential property is criminally trespassing within the meaning of 18 Pa. C.S. § 3503 (relating to criminal trespass) shall have the authority to make an arrest or take such other steps to investigate the situation as is appropriate under the circumstances, all in a manner consistent with the Police Department's internal protocol for investigating criminal and defiant trespassers, and shall obtain a warrant authorizing entry into the premises where appropriate. Nothing in this Section 10-840 shall limit the authority of the Police to conduct an investigation, or make an arrest, or in any other way diminish or interfere with the Police's authority to enforce the criminal laws in the City or Commonwealth concerning trespass, or otherwise.
(b) Owner or Authorized Agent Initiated Investigations. Once the owner of a property or an authorized agent of such owner complains to the Police that a criminal and defiant trespasser is occupying such owner's residential property, the Police shall promptly investigate the matter in accordance with its internal directive for investigating theft of residential real property. The owner or authorized agent of a residential property may initiate such an investigation by providing to the Police an owner or authorized agent affidavit alleging criminal and defiant trespassing. Such affidavit shall not itself authorize the Police to remove an alleged criminal and defiant trespasser from a residential property. Blank copies of such affidavits shall be publicly available on the Police Department and City website.
(c) Mandated Report. A police officer conducting an investigation pursuant to this subsection 10-840(4) shall make an incident report, and such other reports as prescribed by Police Department directive which shall at a minimum document:
(.1) the parties involved and any verifiable identification provided, or lack thereof;
(.2) the facts as alleged by the respective parties;
(.3) any visual or other observations made by the officer that support statements made by any party; and
(.4) any documentation concerning the alleged existence of a lease or other agreement concerning the current living arrangements or ownership of the property.
(d) Provision of Information. A police officer conducting an investigation shall make owners or authorized agents and alleged criminal and defiant trespassers aware of the availability of the City of Philadelphia Appropriate Eviction, Ejectment Proceedings, and Emergency Housing Fact Sheet. This fact sheet shall be publicly available on the Police Department and City website.
(5) Court Procedures.
(a) Upon the filing with the Court of Common Pleas of Philadelphia of a complaint for ejectment supported by an owner or authorized agent affidavit alleging criminal and defiant trespassing and a motion for emergency preliminary injunction pursuant to Pennsylvania Rules of Civil Procedure 1051 – 1058 and Philadelphia Court of Common Pleas Local Rule *208.3(a), the Court shall schedule an emergency hearing within five (5) business days, or such other time period as is necessitated by the circumstances presented or applicable court procedure.
(b) A judge shall grant an emergency preliminary injunction, order the criminal and defiant trespasser to vacate the premises, and authorize the issuance of a writ of possession if the owner or authorized agent proves by a preponderance of the evidence that the owner or authorized agent is likely to prevail on the merits of the action for ejectment and a preliminary injunction is otherwise appropriate under applicable law.
(c) Court to Adopt Means of Service. The Court shall adopt a means of prompt and effective service in those instances where the plaintiff avers that service cannot be safely effected by an adult individual other than a law enforcement officer or where the court so orders.
(d) Simplified Forms and Assistance. The Courts may:
(.1) Provide simplified forms and clerical assistance in English and Spanish to help with the writing and filing of the complaint in ejectment, motion for emergency preliminary injunction, and responses thereto for individuals not represented by counsel.
(.2) Provide the plaintiff and defendant with written and oral referrals in English and Spanish, to local legal services agencies and to the county bar association's lawyer referral service.
(e) Residential Lease Fraud Victims. Upon receiving information that an alleged criminal and defiant trespasser is a residential lease fraud victim under any applicable Police Department directive, the Police Department shall take such steps as provided for in such directive, including notifying the victim in writing that such victim cannot legally remain in the residence and must make arrangements to move out within fifteen (15) days, or such other time period as is necessitated by the circumstances presented or applicable police directive.
(6) Penalty. In addition to such other fines, penalties, and imprisonment as applicable under Pennsylvania law, the penalty for a violation of subsection 10-840(3)(a) or (b) shall be a fine of not more than one thousand dollars ($1,000), or imprisonment of not more than ninety (90) days, or both, provided that, a person who violates subsection 10-840(3)(a) at two or more separate residential properties, or at a single residential property after having been legally removed from such property, including by arrest, shall be subject to a fine of not more than two thousand dollars ($2,000), or imprisonment of not more than ninety (90) days, or both. A person will be guilty of a second violation regardless of whether the second or subsequent violation occurs before or after a judicial finding of a first or previous violation.
(7) Private Right of Action. An individual who has been wrongfully accused of being an alleged criminal and defiant trespasser shall have a private right of action against any person who knowingly violates subsection 10-840(3)(b) and may recover, for each such violation, actual damages, reasonable attorneys' fees and court costs to the extent allowed by law, and such other relief, including injunctive relief, as the court may deem appropriate. This subsection in no way limits the rights of private parties to pursue any legal rights and claims they may possess under a written agreement or any other applicable law.
Notes
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