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I discovered Wednesday that a recent tenant of 1.5 months misrepresented themselves, and lied and omitted information on the rental application to hide the truth and gain entry into my apartment.

The facts are:

  • She knowingly lied in person and omitted on the application her rental history. She said that she was married and lived with an abusive husband while renting an apartment locally.
  • She knowingly lied in person and on the application about her ability to pay.
  • She knowingly lied in person and on the application about her current address listing it as out of state.
  • She knowingly lied in person and on the application about her previous addresses within 5 years listing only one out of state address.
  • Listed relatives as references that were complicit in the misrepresentation.

She misrepresented herself and filled out the application while being evicted locally. The online background check was unable to present an eviction that was in process and uncontested. Her notice to quit, court filing, and being served was before the application was filled out and before I even spoke to her.

I am quoting from: http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=18

Title 18, Chapter 39, Sub-chapter B, 3922, (a), (1) Theft by Deception

§ 3922. Theft by deception.

(a) Offense defined.--A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

Title 18, Chapter 39, Sub-chapter B, 3921, (b) Theft by unlawful taking or disposition. Immovable property.

§ 3921. Theft by unlawful taking or disposition.

(a) Movable property.--A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

(b) Immovable property.--A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.

As a landlord, our property is the rental and any capitol we may gain. With tenant landlord laws as they are, the landlord is deprived of their property and ability to rent the property simply by virtue of the fact that someone now has access. Gaining access to property through (gross) deliberate deception with the express purpose of gaining access to property knowingly without the ability to pay is denying a landlord of their property and capital with intent and tantamount to Theft by Deception.

The result of this is that I am unable to rent the apartment in question and am now dealing with a tenant that intends to continue the deception without paying. They did pay just enough money to get in, however, the lies and deceptions to continue with intent to deceive and retain property for personal gain.

To make matters worse, this tenant did this with the previous landlord which evicted her.

Before anyone says there is remedy available in court, I will remind you that this tenant, as it turns out, does not have a pot to pee in and does not have enough real property to recover damages and losses. As well, the law allows appeals and extensions making the situation worse. In otherwords, often the remedy results in court costs and fees for the landlord as well as losses that cannot be recovered.

I realize that lawyers and courts are reluctant to call this fraud and theft, however, can you help an old guy understand why this specific and clear attempt to defraud and deprive a property owner of access rights to their property would not be considered illegal?

  • Your last paragraph is confusing: Has anyone suggested or argued that what you describe is not illegal, and is not fraud and theft? – feetwet Apr 23 '16 at 20:53
  • @feetwet avvo.com/legal-answers/… I only found about this fraud the other day and I am busy with so many things, that this question and Avvo is all I have had time to do. I would love to see a lawyer take a big ole' bite! – closetnoc Apr 23 '16 at 22:37
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    In PA the lawyers that get paid to look at criminal matters all work for the government (as explained in my answer below). The fact that a private real estate lawyer told you what she could do in civil process doesn't back up the impression you state in your last paragraph that "lawyers and courts are reluctant to call this fraud and theft." – feetwet Apr 23 '16 at 22:44
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    Question for answerers: Has anybody been successfully prosecuted under a fact pattern similar to the one in the question? Or, for that matter, unsuccessfully prosecuted where the case failed on a question of law rather than a prosecutor's inability to prove some key fact? – WBT Jul 18 '16 at 15:42
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    Answers & discussion here should focus on PA law as tagged, but for an interesting background story that might make the question more interesting, check out this Radiolab story which re-aired not too long ago about a character going by the name Hope Ballantyne. Let's make Law.SE a place where people can ask and learn about these kinds of legal topics within the larger context and conversation! – WBT Jul 18 '16 at 15:56
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As you note, it does appear that this tenant has committed one or more crimes.

In Pennsylvania crimes are prosecuted by the state, and you can begin the process by filing a private criminal complaint with your local Magisterial District Court, which will forward it to your county's District Attorney for review and prosecution.

You've essentially written the complaint here; now you just have to file it. The criminal process would proceed independently of whatever civil processes you might be pursuing.

4

The tenant has certainly committed one or more civil wrongs against you, and you have the right to sue for those (as you know). There could be criminal activity here such as fraud or perjury - but I do not believe it constitutes theft by taking.

The tenant did not use deception to obtain property from you. They used deception to obtain a business deal with you. The tenant can access the apartment because you gave them a lease, and the tenant didn't lie about having a lease. You can certainly sue for the misrepresentation in a business deal, but I do not see how this could be considered theft.

Analogy: You sell someone a car, and they stop making payments on it. Can you report the car stolen? No, you cannot.

There is also another issue here, which is that only the DA/prosecutor can bring criminal charges, and the DA has the right to pursue, or not pursue, any case he/she wishes. I think it would be very difficult to get prosecutors interested in pursuing this case.

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    The tenant did not use deception to obtain property from you. The problem you have is that lying is deception. Any landlord is required by law to file a Order of Possession to regain access to their property. Until the Order of Possession is complete, the landlord does not have rights to their property other than to maintain it. The tenant has rights and access to the property, which is how rentals are referred to in the law. Theft by deception does apply (confirmed by judge), however, never pursued since the Tenant Landlord Act of 1951 allows for a civil recourse. – closetnoc Jul 18 '16 at 14:53
  • @closetnoc What judge? Where and when? – WBT Jul 18 '16 at 15:04
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    @WBT I spoke with several people along the way including my own judge on the matter. She explained that since recourse is available using the Tenant Landlord Act of 1951, that renders the need for Theft by deception essentially moot even though she feels it does apply. The problem is no-one (that I am aware of) has tested this with a test case or challenge. – closetnoc Jul 18 '16 at 15:19
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    @closetnoc You have your own judge? How'd that happen? PA's legal system is even stranger than I'd previously thought. – WBT Jul 18 '16 at 15:26
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    I'm not sure why you feel it's "so clear-cut" when virtually everyone else disagrees with you. If you are not open to opinions that don't match your own, then there was no reason to post this question. You already have civil remedies to pursue your monetary damages, and you already knew that. What you are trying to argue for here is criminal charges, which would not benefit you in any way and therefore are only about revenge. Between your vindictive feelings toward your tenants, and your apparent inability to do a thorough background check, I'm not sure why you wish to be a landlord. – SegNerd Jul 25 '16 at 13:27
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There seems to be little on the net that answers this question. Certainly, there is nothing I can find that speaks to Pennsylvania law. For that reason, I will offer what I can.

The law allows for remedy.

I have yet to find anyone or any resource that will argue that intentional gross misrepresentation on a rental application is not fraud. A parallel is a loan application where intentional gross misrepresentation is punishable as a criminal act. What separates the the two is the taking or controlling of either movable or immovable property. Here is that portion of the statute again.

§ 3921. Theft by unlawful taking or disposition.

(a) Movable property.--A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

(b) Immovable property.--A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.

In regard to whether a property is movable or immovable, what is commonly argued is that the landlord remains in possession of his property. Common arguments made are:

  • The apartment has not been removed.
  • The landlord has possession of the entire property less specific rights that tenants hold.
  • The landlord retains access rights to the apartment.
  • The landlord retains a remedy process of eviction.

Nothing can be further from a legal definition. As a matter of law, the lessee by contract has rights to the property in many cases over the landlord. For example, the landlord must obtain permission to enter he property or give proper notice to enter the property to which the lessee can object. This, in of itself, defines access rights to the property for the landlord. The landlord retains little rights to exercise control over his/her property except what is defined within the law or within the contract between the lessee and the landlord.

The writ of possession.

Section 250.503. Hearing; judgment; writ of possession; payment of rent by tenant

(a) On the day and at the time appointed or on a day to which the case may be adjourned, the justice of the peace shall proceed to hear the case. If it appears that the complaint has been sufficiently proven, the justice of the peace shall enter judgment against the tenant:

(1) that the real property be delivered up to the landlord;

...

(b) At the request of the landlord, the justice of the peace shall, after the fifth day after the rendition of the judgment, issue a writ of possession directed to the writ server, constable or sheriff, commanding him to deliver forthwith actual possession of the real property to the landlord...

Please note that in section (a)(1) the following, that the real property be delivered up to the landlord;, and section (b) the following, commanding him to deliver forthwith actual possession of the real property to the landlord.

This strongly indicates that the property in question is not within the possession of the landlord.

The argument that a remedy is as good as a conviction.

Nothing can be further from the truth. While the landlord has the right to remedy under the Tenant Landlord Act of 1951, the fraud committed goes unpunished. The sad fact of the matter is, once a tenant has left, collecting is nearly impossible. With wait times almost reaching 70 days, and the legal process as it exists, the landlord often can only obtain a legal remedy for a portion of the costs and losses. In order to obtain a legal remedy for the remaining, the landlord must find the lessee. This can be nearly impossible or at least, a very expensive proposition. This is despite the legal requirement that the lessee register their new address and phone number with the court. Failure to do so is a crime. And yet, not one seems to do this and the courts fail to prosecute as a result. It is not uncommon that a landlord will choose the most expedient and cost effective route in removing a tenant and not seek a remedy beyond removing the tenant. Some go as far as offer a reward as high as $5000.00 to the tenant to leave. Some remedy under the law. The law does not work for landlords as it exists and the existing process under the law removes rights of landlords that other property owners are entitled to and enjoy. For example, when the property is abandoned, the landlord must undergo a process to regain his rights to his property that is 30 days or more.

That aside.

The prevailing attitude today is that:

  • The landlord has retained rights to his property.
  • The landlord has a remedy under the law that makes whole the losses of the landlord.
  • Bad tenants are a part of doing business. Get over it.
  • It is no big deal. Just evict them. (unaware that this process can take almost 70 days and cost nearing $1000)
  • Your property is still there, it has not been stolen.
  • You rental income was not stolen, it was not realized.
  • The lessee did not benefit from being a bad tenant.
  • Your losses are nothing more than cleaning and removing some stuff.
  • Just sell the property and you will make money.

Nothing can be further from the truth. Contrary to popular belief, outside of urban areas, most all landlords are small operators. Losses can jeopardize the mortgage and even bankrupt a landlord who often has his life savings tied up into real-estate. Given the real-estate bubble, many areas have not recovered and investment made 10 years ago cannot be recuperated. It is not uncommon that a small series of bad tenants can cost property losses of $100,000, $200,000, or more. Bad tenants are so prevalent these days that eviction is a never ending fact that landlords face. Even if one bad tenant does not throw a landlord into bankruptcy, another might.

While it is often argued that bad tenants are those who lost their jobs and that landlords are eager to kick these tenants out, nothing can be further from the truth. Most landlords are in the business of helping people and can tolerate some level of loss if the tenant avails themselves of the opportunities that exist. For example, unemployment. Bad tenants these days are destructive, vindictive, retaliatory, and deliberate. There is a new breed of lessee that is finally being realized though they have existed for decades.

One such case was linked to in the comments:

http://www.craigslist.org/about/press/encounters_with_hope.html

Here is another one:

http://www.indystar.com/story/news/2016/04/16/indys-worst-renter-owes-thousands/82068620/

You do not have to search the net very long to find countless abuses of lessees that landlords have had to contend with and the losses and costs of these cases some going on for over a decade.

So has anyone been arrested for intentional gross misrepresentation on a rental application?

Short answer? YES.

However, this is often in conjunction with other offenses including writing bad checks. It appears that more recently, Theft by deception. is being recognized. However, with priorities in law enforcement and prosecution being what they are, it remains a very low priority. However, fact patterns do make the difference. The sworn testimony of a single landlord may do little, however, the sworn testimony of two or more likely will.

Here are a few links where tenants have been arrested where Theft by deception. has been a factor.

http://www.landlordtalking.com/tips/tenant-screening/tenant-to-serve-time-for-lying-on-rental-applications/

A Toronto tenant recently convicted of defrauding two of her landlords by lying on her rental applications will serve six months in jail, according to a report by the Toronto Star.

http://ohmyapt.apartmentratings.com/the-consequences-of-providing-false-information-on-your-rental-application.html

Sometimes the Act Is Charged as a Crime

Though it isn’t common, there are cases where a landlord has filed charges against a fraudulent renter. However you look at it, providing false information on an application is fraud. It is equal to passing bad checks. Every landlord is different and depending on how much trouble he feels the lie or lies have caused or the amount of money he feels he is out are factors as to whether or not he may want to file charges. The consequences of the fraud vary from state to state.

http://www.seattletimes.com/seattle-news/nightmare-tenant-charged-with-fraud/

Last week, Carde was charged with 12 criminal counts. Prosecutors say that she’s a fugitive wanted in lieu of $150,000 bail and that police are looking for her.

For the past five years, they say, Carde has engaged in an elaborate scheme to dupe home sellers out of their properties. Presenting herself as a legitimate — and wealthy — buyer, Carde would enter into lease-with-option-to-purchase agreements with homeowners, move in and then stop paying rent, according to an investigation by prosecutors and the state Department of Financial Institutions.

Do tenants profit from landlords?

Absolutely. In fact, that is precisely the point. Reading the linked articles above, it becomes clear that the primary motive is to deprive the landlord of his property for as long as possible and to profit by not having to pay housing costs that we all pay. Bad tenants that commit fraud, are intentionally defrauding the landlord for gain and do profit from this form of fraud for decades until a fact pattern is established and a prosecutor takes pity upon a landlord.

Another bright note on the subject.

Minnesota does afford a penalty for lying on a rental application. Here is the link to the law:

http://www.homelinemn.org/wp-content/uploads/police%20manual.august.2013.b.pdf

...where it states...

VIII. LYING ON A RENTAL APPLICATION A tenant who lies on an application to get an apartment is guilty of theft. 32 The statute states that theft has been committed when a person "obtains.. the possession or custody or title of property of... a third person by intentionally deceiving the third person with false representation, which is known to be false, made with the intent to defraud and which does defraud the person to whom it is made."33 Such theft is at least a misdemeanor, but may carry a more severe punishment depending on how the court values the lease obtained by the fraud.

In this respect, Minnesota does define this activity as fraud or Theft by deception.

What our local judge says.

Curious? She agrees that it is a crime to use fraudulent means during the application process to gain access to a rental property. She, however, echos the attitude that most lawyers, prosecutors, and judges would have. Landlords have a remedy in the civil courts.

So you have it.

While technically intentional gross misrepresentation on a rental application is a crime, the unwillingness to recognize it as a crime and to prosecute offenders remains an issue. It has become clear to me, that for the least of these bad tenants, a criminal prosecution is exactly what the doctor orders. It would at least abate the amateur huckster quickly leaving only the worst of the worst thus reducing the issue significantly.

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