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HomeMy WebLinkAbout10-0388IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, ?kt YJS,?; VANIA {,T The DOUGLAS L. ZOOK, 480 Running Pump Road Lancaster, PA 17601 Plaintiff, V KEVIN A. KUDUK 475 Old York Road New Cumberland, PA 17070 and JENNIFER A. SIMPSON 475 Old York Road New Cumberland, PA 17070 Defendants. § CAUSE NUMBER: § § ORIGINAL P? z? 3 2010 JA I'D 6 3 W c rvr 14.(-rA. NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after the complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in t he complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKETHIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GO TO GET LEGAL HELP. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street $?f `1, D ice Carlisle, PA 17013 Telephone: (717) 249-2663 li ,za4'-?5'5 AVISO Le han demandado a Listed in la corte. Si Listed quiere defenderse de estas demandas expuestas en las paginas signientes, Listed tiene viente (20) dis de plazo al partir de la fecha de la demanda y la notification. Hace falta asentar una comparencia escrita o en persona o con Lin abogado y entregar a la corte en forma escrita sus defensas o sus objecciones a las demandas en contra de su persona. Sea avisado que si Listed no se defiende, la corte tomara medidas y puede decidir a favor del demandante y requiere que Listed cumpla con todas las provisionesde esta demanda. Usted puede perder dinero o sus propiedades o otros direchos importantes para Listed. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSIGUIR ASISTENCIA LEGAL. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-2663 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS L. ZOOK, 480 Running Pump Road Lancaster, PA 17601 Plaintiff, v KEVIN A. KUDUK 475 Old York Road New Cumberland, PA 17070 and JENNIFER A. SIMPSON 475 Old York Road New Cumberland, PA 17070 Defendants. CAUSE NUMBER: - 3 c v - ( u COMPLAINT NOW COMES Douglas L. Zook, by and through his attorney, Michael Volk and respectfully shows this Honorable Court the following: 1. Douglas L. Zook (hereafter "Plaintiff") is an individual doing business at 480 Running Pump Road, Lancaster, Lancaster County, Pennsylvania 17601. 2. Kevin A. Kuduk (hereafter "Defendant Kevin Kuduk") is an individual residing at 475 Old York Road, New Cumberland, Cumberland County, Pennsylvania. Service of Process may be had on Defendant Kevin Kuduk at this address. 3. Jennifer A. Simpson (hereafter "Defendant Jennifer Simpson") is an individual residing at 475 Old York Road, New Cumberland, Cumberland County, Pennsylvania. Service of Process may be had on Defendant Jennifer A. Simpson at this address. 4. Venue is correct in that defendants reside in Cumberland County, Pennsylvania. Plaintiff is referred to in the Agreement as "Owner". 6. Defendants Kevin Kuduk and Jennifer A. Simpson are variously referred to in the agreement as "LPers" 7. On or about 21 November 2005, Plaintiff and Defendants entered into a contract to lease with an option to purchase a house located at 190 Northcrest Drive, York Haven, York County, Pennsylvania 17370. A copy of that agreement is hereby incorporated by reference and is attached to this Complaint as "Exhibit I". 8. The term of the lease began on I December 2005 and was to end on 31 December 2012, unless the purchase option was exercised before the end date. 9. Under the terms of the Agreement, Defendants purchased an option to purchase the property during the term of the lease, with the lease and option payment being credited against the purchase and closing costs. 10. The fair rental value of the dwelling is the monthly rent reserved and agreed to under the terms if the agreement between Plaintiff and Defendants. 11. As more fully set-forth below, the agreement obligates Defendants to, among other things, 1.) pay Plaintiff rent in the amount of $1,244.22, payable on the first day of each month, 2.) pay for all utility service, including sewer and trash expenses, 3.) pay all tax and insurance charges due, and 4.) to maintain the property. 12. Defendants defaulted on their lease obligations and moved from the dwelling on or about 1 December 2008. 13. Plaintiff regained possession of the dwelling on or about 10 December 2008. 14. As set forth in greater detail below, Defendants' default and disregard of the terms of the Agreement by and between Plaintiff and Defendant has damaged Plaintiff. 15. A copy of the Statement showing damages due to default by Defendants is attached as ""Exhibit 2". 1. LOSS OF RENTAL INCOME DUE TO DEFAULT BY DEFENDANTS 16. Plaintiff hereby incorporates paragraphs 1 through 15 of this Complaint as if set forth at length herein. 17. Paragraph 13 of the Agreement by and between Plaintiff and Defendants, titled "DEFAULT" states "It shall be a default under this agreement if you fail to (1) pay the full LP payment or any other payment required by this agreement when due, or: (2) perform any duty, obligation, or fulfill any responsibility required of you by this agreement within 3 days verbal or written notice of any such default. In the event of any default, the owner, at his sole option, may terminate all your rights under this agreement, unless you, within the said three days shall cure the Default (this cure period applies only in the event of a default for a reason other than non- payment of the LP payment; there is no notice required and no cure period for a default resulting from non-payment or late payment of the LP payment). If you abandon and recover from Lper all damages incurred by reason of your breach of this lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease..." 18. Paragraph 14 continues: " In the event of a default by you lasting more than 3 days, Owner may elect to (a) continue the lease in effect and immediately accelerate all payments due along with costs and fees provided herein, (without the right to purchase) and enforce all rights and remedies belonging to Owner under this agreement, including the right to recover the LP payment as it becomes due, or (b) at any time, terminate all your rights under this agreement and recover from Lper all damages incurred by reason of your breach of this lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease...". 19. Plaintiff suffered damages in the form of lost rental income from the date of Defendants' departure from the dwelling through 1 December 2009. 20. The period of non-occupancy caused Plaintiff lost rent proceeds in the amount of $14,930.64. 21. Due to the existence of the agreement and the terms shown above, Plaintiff is entitled to compensation for the rental income lost due to Defendants' breach of the agreement. 22. Defendants have refused to pay the balance due and continue to do so. 23. Any and all credits have been applied to Defendants' balance owed. 24. Plaintiff has been damaged by Defendants' failure to complete the lease term in an amount of at least $14,930.64. III. NONPAYMENT OF TAXES INSURANCE AND UTILITY CHARGES 25. Paragraph 2 of the Agreement states that lessees are responsible for payment of taxes and insurance on the dwelling. 26. Taxes and insurance in the amount of $2,238.36 were due, owing and paid by Plaintiff during the period of non-occupancy, from the time that Defendants moved from the dwelling and when a new lessor moved in. 27. Plaintiff was forced to pay these charges which Defendants previously agreed to pay, in accordance with the terms of the agreement. 28. Paragraph 3, titled "UTILITIES" states "You are responsible for the payment of all utilities and trash and other services related to the premises". 29. Defendants moved from the dwelling leaving unpaid utilities in the amount of $427.03 which Plaintiff paid. 30. Plaintiff was forced to pay these charges which Defendants previously agreed to pay, in accordance with the terms of the agreement. 31. Due to the existence of the agreement and the terms shown above, Plaintiff is entitled to compensation for taxes, insuirance and utility charges that Defendants agreed to pay and subsequently did not. 32. Plaintiff has been damaged by Defendants' failure to pay tax, insurance and utility charges for the dwelling in an amount of at least $2,665.39. III. PHYSICAL DAMAGE TO PROPERTY BY DEFENDANTS 33. Plaintiff hereby incorporates paragraphs 1 through 32 of this Complaint as if set forth at length herein. 34. Once Possession of the dwelling was gained by Plaintiff, an inspection on or about 10 December 2008 showed damage to the house which Plaintiff was forced to pay $3,212.78 to have repaired. 35. Paragraph 8.a of the Agreement by and between Plaintiff and Defendants states "You, at your own expense, must at all times maintain the premises in a clean and sanitary condition including all equipment, appliances, furniture in the premises and turn it all back over to Owner, at the end of the lease period, if you do not exercise your option to purchase, in as good condition as received, except for normal wear and tear..." 36. Paragraph 8.a of the Agreement contains a subsection which states "You must also maintain all facilities, mechanicals, wiring, roofing, decks and other features of the home in good working order or appearance. 37. Paragraph 8.a of the Agreement contains an additional subsection which states "You must pay all the costs of maintaining the premises the same as if you actually owned the property without the benefit of the LP structure". 38. Paragraph 8.a of the Agreement contains an additional subsection which states "If you do not do what is required under this clause, Owner may (at his sole option) do the work and bill as additional rent within 10 days of being billed by Owner". 39. Paragraph 9 of the Agreement, titled "DAMAGES: states "You are responsible for damages caused by your negligence and that of your family or anyone you invite to the premises, including any guests". 40. Defendants breached their duty to maintain the premises as set forth above and as such, are responsible for the costs of repairing any physical damage to the premises. 41. Due to the existence of the agreement and the terms shown above, Plaintiff is entitled to compensation for the damage done to the property. 42. Alternatively, Plaintiff is entitled to reimbursement for expenses he was forced to incur to repair damage to the dwelling, a matter which was the obligation and responsibility of Defendants. 43. Plaintiff has been damaged by Defendants' failure to maintain the property in an amount of at least $3,212.78. 44. Plaintiff hereby incorporates paragraphs 1 through 43 of this Complaint as if set forth at length herein. IV. FRAUD 45. On or about 20 November 2005, Defendants falsely and fraudulently represented to Plaintiff that that they intended to perform under the terms of the agreement between the parties and that they had sufficient financial resourcesto do so. 46. The representations made by defendants were in fact false. The true facts were that Defendants had no financial resources with which to pay the loan, nor had they any intention to do so. 47. Defendants made these representations with the intent to defraud and deceive Plaintiff and with the intent to induce Plaintiff to enter into the contract. 48. Plaintiff, at the time these representations were made by Defendant was ignorant of Defendant's misrepresentation of their financial status and of their intention not to perform. Plaintiff, in the exercise of reasonable diligence, did not discover Defendant's true financial status or intentions. 49. In reliance on Defendants' representations, Plaintiff was induced to enter into the Contract. 50. If Plaintiff had known of the true financial condition and actual intentions of Defendants, Plaintiff would not have taken such action. 5 L As a proximate result of Defendants' fraud and deceipt, Plaintiff Plaintiff has been damaged in the amount of $20,808.81, in addition to attorney's fees and costs of court. V. ATTORNEY FEES AND COSTS 52. Plaintiff hereby incorporates paragraphs 1 through 51 of this Complaint as if set forth at length herein. 53. Paragraph 21 of the Agreement by and between Plaintiff and Defendants, titled "ATTORNEY FEES AND COSTS", stats as follows: "In any action or proceeding involving a dispute between Owner and LPer to enforce the terms and conditions of this lease with option to purchase, or to recover possession of the premises from LPer, the Owner shall be entitled to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings in the amount of 5% of the option cost or the actual fees, whichever is greater". 54. Due to the existence of the agreement by and between Plaintiff and Defendants and the terms shown above, Plaintiff is entitled to recover all costs of court and attorney fees. (This space itentionally left blank.) P_ WHEREFORE, Plaintiff respectfully requests that the Court grant judgment in his favor and against Defendants as shown below: a. $14,930.64 for lost rent; b. $2,665.39 for unpaid utilities and taxes; c. $3,212.78 for damages to the property; d. all Costs of Court; e. $2,500.00 for Attorney's fees; f. Plaintiff respectfully requests the grant of such and other relief as the Court deems appropriate. Respectfully Michael Volk Attorney for Plaintiff Douglas L. Zook Supreme Court I.D. Number: 88553 275 Cumberland Parkway, Suite 168 Mechanicsburg, PA 17055 Telephone: (717) 889- 5989 Facsimile: (717) 441-3803 Email: volklawoffice@gmail.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS L. ZOOK, 480 Running Pump Road Lancaster, PA 17601 Plaintiff, v KEVIN A. KUDUK 475 Old York Road New Cumberland, PA 17070 and JENNIFER A. SIMPSON 475 Old York Road New Cumberland, PA 17070 Defendants. CAUSE NUMBER: VERIFICATION I, Michael B. Volk am t he attorney for the Plaintiff in this matter. I verify that the statements contained in this Petition are true and correct to the best of my knowledge. I am making this verification as the Plaintiff is unavailable and time is of the essence. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relatin o unsworn verification. Michael B. Volk EXHIBIT I DOUGLAS L. ZOOK 480 Running Pump Road Lancaster, PA 17601 Telephone: 717-735-0030 Fax: 717-735-0029 Statement of Rent and Charges Due 1 December, 2009 Kevin A. Kuduk Jennifer A. Simpson 190 Northcrest Drive Yorkhaven, PA 17370 Rent due through term of lease or until another move in: 12/01/09 $14,930.64 Real Estate Taxes and Insurance Due: $2,238.36 Utilities Due: $427.03 Damages to Home: $3,212,78 Net Amount Due and Owing: $20,808.81 EXHIBIT 2 RESIDENTL41 LEASE WITH PURCHASE OPTION 1 You, Kevin A. Kuduk and Jennifer A. Simpson (also called Lper in this contract), have given a deposit in the amount of $8000 (eight thousand doll. After the Owner of the i premises accepts and signs this lease, your deposit will become non-refundable and will be applied as follows: To non-refundable option consideration ..................... ...............: $ 8000.00 Your first lease payment (also known as LP payment) is due } on or before _12/1/05 for the period _12/1-12/31/05 ................:$1244.22 The Non-refundable option consideration gives you the option to purchase the property during the term of the lease, so long as you do all the things you are agreeing to do, when you have agreed to do them. If Owner or his authorized agent does not accept and sign this agreement within 15 days, it shall terminate and your deposit will be returned. Y ou are offering to lease from the Owner the premises, described as a 3 bedroom house known as 190 Northcrest Dr. York Haven Pa. 17370 (AKA Lot 21 Grandview Phase 2)in the County of York, State of PA upon the following TERMS AND CONDITIONS. TERM: The term of this lease will start on _12/1/05 , and end on 12/31/12_ unless the purchase option is exercised before the end date. 2. MONTHLY PAYMENT: The monthly LP payment at the start of the lease will be $_1244.22 per month due in advance on the 1 st day of each month to Owner or his authorized agent at the following address 480 Running Pump Rd, Lancaster, PA 17601 or at a different address if the Owner notifies you to change the address you send your payment to. The LP payment includes $ 0 as a payment toward taxes and insurance. If this amount is not enough to cover the actual taxes and insurance, the Owner will send you a bill for the difference which you agree to pay as additional rent within 30 days of being billed by Owner. If you are ever late paying a tax or insurance bill, then at Owners sole option you will be given notice of the monthly amount equal to 1/12 of the estimated taxes and insurance shortfall that will be added to the monthly LP payment for future tax and insurance bills, which shall then be due monthly with your LP payment as additional rent. If you don't pay your payment on or before the due date you must pay Owner a $100 plus $3 a day until paid late fee. If you bounce a check for any reason you must pay Owner a $30 bad check fee plus interest at 1.5% per month until the payment is made good. aye r a fully understand and agree the terms and conditions contained in this entire agreement Date 3. UTILITIES: You are responsible for the a Z p yment of all utilities and trash and other ongoing maintenance and cleaning services related to the premises. 4. USE: You may only use the premises as a single family residence. Any other use requires written approval from Owner. PETS: You may not have pets on the premises unless you have written approval first from Owner. If Owner approves any pets, they must be kept in compliance with all laws. If Owner approves a particular pet or pets, that does not automatically approve other pets without written permission from Owner. 6. ORDINANCES AND STATUTES: You agree to comply with all deed restrictions, statutes, ordinances and requirements of municipal, state and federal authorities now in force, or which may be put into force at a later time, pertaining to your use of the premises. 7. ASSIGNMENT AND SUBLETTING: You may not assign this agreement or sublet any portion of the premises without written approval from the Owner. If Owner approves one assignment or sublet, that does not automatically approve other assignments or sublets without written permission from Owner. 8. MAINTENANCE, REPAIRS, OR ALTERATIONS: You have inspected the premises and acknowledge it is in good order and repair and accept it as it was shown to you. Any exceptions are noted here: NONE 8.a. WAIVER OF WARRANTIES, ACCEPTANCE AS IS: This agreement constitutes the entire contract between the parties hereto and the Seller is not liable or bound in any manner by expressed or implied warranties, guaranties, promises, statements, representations, or information pertaining to said premises. Except as noted on the line above, the LPer agrees to take the premises as is and with any and all faults, known or unknown. The LPer waives any and all statutory or implied warranties with regard to defects in, or the habitability of, the premises. The terms of this waiver shall survive settlement if Lper exercises the purchase option. You, at your own expense, must at all times maintain the premises in a clean and sanitary condition including all equipment, appliances, furniture and furnishings in the premises and shall turn it all back over to Owner, at the end of the lease period, if you do not exercise your option to purchase, in as good condition as received, except for normal wear and tear. Pet stains and odors and other pet damage shall not be considered normal wear and tear, even if pets were approved by Owner. You must water and maintain any surrounding grounds, including any storm water facilities, and you must maintain drainage away from the house including any downspout extensions or pipes. You must maintain all lawns and shrubbery and keep the premises clear of rubbish or weeds. You must also maintain all facilities, mechanicals, wiring, roofmg, siding, decks and other features of the home in good working order and appearance. You have inspected and verified the operating condition of the smoke detectors and agree to maintain them in an operating condition including weekly testing and battery replacement when needed, at all times. You must get written permission from Owner to paint, paper, or otherwise decorate or make alterations to the premises. I/W 4AIK have read and fully understand and agree to the terms and conditions contained in this entire agreement Date t, -3? ' You must keep all kids toys in the back of the house out of site or inside when not being played with, 3 no bikes, toys, trampolines, etc may be stored in the front yard. All grass must be kept under 5" in length at all times. You must pay all the costs of maintaining the premises the same as if you actually owned the property without benefit of the LP structure. Upon notice from Owner, the local municipality, any state or federal agency, including but not limited to Soil Conservation Service (SCSX or the Department of Environmental Protection (DEP), you must immediately comply with any and all assessments and requirements including but not limited to any National Pollutant Discharge Elimination System Permit (NPDES) or other permit requirements pertaining to the property, at all times, and if Owner, at it's sole option, attempts to defend against such an assessment or requirement and/or receives a fine due in full or in part to your non- compliance with these requirements, you must reimburse Owner for all costs of defense against said action and also for (at Owners sole option) bringing the premises into compliance together with any fines and/or legal costs incurred by Owner by your failure to comply, at cost plus 20%, within 10 days of being billed by Owner. This obligation shall survive settlement if the purchase option is exercised. 9. DAMAGES FOR NEGLIGENCE: You are responsible for damages caused by your negligence and that of your family or anyone you invite to the premises including any guests. 10. ENTRY AND INSPECTION BY OWNER: You must permit Owner or Owners Agent to enter the premises at reasonable times and upon reasonable verbal or written (at Owners sole option) notice for the purpose of making necessary repairs, or to show the premises to prospective Leer, purchasers, or mortgage's, or to see if premises is being kept in conformance with this agreement. For these purposes, 24 hours is deemed reasonable and acceptable notice. 11. INDEMNIFICATION: Under no circumstances will Owner be liable for any damage or injury to You, or any other person, or to any property, occurring on any part of the premises. You agree to hold Owner harmless from any claim for damages, no matter how caused, and you also agrees to indemnify Owner for any and all damage, losses or injury occurring on or because of the premises for which claim is made against the Owner or premises including, but not limited to, costs and attorneys fees incurred in defending against any claims or in enforcing this agreement. 12. PHYSICAL POSSESSION: If Owner is unable to deliver possession of any or all the premises on the start date of the term, Owner won't be liable for any damages that result This will also not cause this agreement be void or void-able, except at Owners sole option, but you will not have to pay any LP payment for the undeliverable part until possession is delivered. If this agreement applies to property which is new construction, possession shall be considered to have been delivered on the day after Certificate of Occupancy (if required) is received by Owner, or the date Owner notifies you the property is substantially completed if no Certificate of Occupancy is required by the 18. HEIRS, ASSIGNS, SUCCESSORS: This lease is binding upon and inures to the benefit of the heirs, assigns, and successors in interest to both the Owner and You, except as precluded by Paragraph 7 herein. 19. TIME: Time is of the essence to this agreement. This means all dates and time frames must be honored strictly. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement Date --old-v5 13. DEFAULT: It shall be a default under this 4 agreement if You fail to (1) pay the full LP payment or any other payment required by this agreement when due, or, (2) perform any duty, obligation, or fulfill any responsibility required of You by this agreement within 3 days of verbal or written notice of any such default. In the event of any such default, as set out in this section 13.(2) YOU MAY CURE THE DEFAULT BY PERFORMING WITHIN THE THREE DAYS. AS TO ALL OTHER DEFAULT, IT SHALL BE NON-CURABLE AND the Owner, at his sole option, may terminate all your rights under this agreement, there is no notice required and no cure period for a default resulting from non-payment or late payment of the LP payment). In the event of a default by you lasting more than 3 days, Owner may elect to (a) continue the lease in effect and immediately accelerate all payments due along with costs and fees provided herein, (without the right to purchase) and enforce all rights and remedies belonging to Owner under this agreement, including the right to recover the LP payment as it becomes due, or (b) at any time, terminate all of your rights under this agreement and recover from LPer all damages incurred by reason of your breach of the lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease, even if your default be remedied after 3 days from the effective date of notice. Liquidated damages in the event of a default shall be $8000.00 plus costs of collection and may be pursued at Owners sole option in addition to other actual damages. 14. ABANDONED PROPERTY: If you abandon or vacate the property, while in default of the payment of LP payment, Owner may consider any property left on the premises to be abandoned and may immediately dispose of the same in any manner and/or at Owner's sole option, retain full and complete title to the property abandoned without any notice to LPer. In the event the Owner reasonably believes that such abandoned property has no value, it may be discarded. You agree that all property on the premises is subject to a lien in favor of Owner for the payment of all sums due hereunder to the maximum extent set forth in this Agreement. 15. WAIVERS: No failure of Owner to enforce any term of this agreement shall be deemed a waiver of that term currently or in the future, nor any other term contained in this agreement. Specifically, the acceptance of partial payment of LP payment or any other payment required by this agreement shall never be deemed a waiver of Owners right to the full amount due. 16. NOTICES: Any notice, which either party may or is required to give may be given by hand delivery or by mailing the same First Class Mail postage prepaid to LPer at the premises or by posting conspicuously on the front entrance of the premises, or to Owner by both regular and Certified Mail, postage prepaid to both addresses shown below or at such other places as may be designated by the Owner from time to time. Notice to Owner shall be deemed to have been given upon the day showing on the signed certified mail return receipt. 17. NON-MODIFICATION: Acceptance of partial payments or a late payment by Owner shall not modify this agreement. 18. HEIRS, ASSIGNS, SUCCESSORS: This lease is binding upon and inures to the benefit of the heirs, assigns, and successors in interest to both the Owner and You , except as precluded by Paragraph 7 herein. 19. TIME: Time is of the essence to this agreement. This means all dates and time frames must be honored strictly. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement ?L_ Date -??-?j 20, HOLDING OVER. If you do not exercise the purchase option and you want to stay after the end 5 of the term of this agreement is expired, then with the consent of the Owner, your staying will be a month-to-month tenancy with the other terms of the agreement, except the purchase option provision, remaining unchanged. When you want to end the month to month tenancy you must give 60 days written notice from the first of the month to Owner. You must give 60 days notice of your intention to vacate prior to the end of initial term. Your failure to provide such 60 days notice shall be considered your application for holding over month- to-month tenancy in accordance with this clause. No such holding over or extension of this lease shall extend the time for the exercise of the purchase option unless otherwise agreed upon, IN WRITING, by Owner. 21. ATTORNEY FEES AND COSTS: In any action or proceeding involving a dispute between Owner and LPer to enforce the terms and conditions of this lease with option to purchase, or to recover possession of the premises from LPer, the Owner shall be entitled to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings in the amount of 5% of the option price or the actual fees, whichever is greater. 22. OPTION: So long as LPer is not, AND has not ever been at any time, in default in the performance of any term of this lease, LPer shall have the option to purchase the premises for a PURCHASE PRICE OF $149,900 plus any prepayment penalty required by Owners underlying lender at the time Lper exercises their option to purchase under the following TERMS and CONDITIONS: A. Each time the current LP payment (as adjusted from time to time by the terms of this agreement) in the LP payment envelope is postmarked by the due date and mailed to the Owner, or electronic payment is made on or before the due date, You shall be entitled to a 9.99'/oAPR 30 yr amortization credit toward the purchase price, when exercising the option to purchase. In the event that Owner's interest rate rises on any mortgage he has on the property while you are leasing it, your monthly payment and/or amortization credit (at Owners sole option) will change, to reflect the increase. Depending on your start payment, you may have an initial negative amortization credit. B. Your option to purchase cannot be sold or assigned without the Owner's written permission. You may not sublease the premises without the Owner's advance written permission. Permission to sell or assign the option, or sublease the premises, may be unreasonably withheld by Owner. C. If there is any default of any of the terms of this agreement that is not cured under the terms of this agreement or if it shall become necessary to evict the LPer for any reason or if the LPer does not exercise it's purchase option, the LP payment amortization calculation credit is canceled. D. When the purchase option is exercised the property shall be conveyed in its then "as is" condition with no warranties/representations or guarantees by Seiler. E. The nonrefundable option consideration shall be credited to buyer's purchase price along with any LP payment amortization credit earned when the option is exercised. Except as expressly set forth in this agreement, NEITHER THE OPTION CONSIDERATION NOR THE LP PAYMENT AMORTIZATION CREDIT IS REFUNDABLE UNDER ANY CIRCUMSTANCE. F. You are responsible to arrange your own financing for the purchase price if you exercise your purchase option. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement Date -aj-y5j G. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to 6 increase the LP payment and/or interest rate for calculation of any amortization credit by 10% for each year in which there is any late payment, without further notice to you. H. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to increase the option price by 10% for each year in which there is any late payment, without further notice to you. 1. If any payment is late for any reason whatsoever by more than 5 days, the applicable monthly payment at that time shall be divided by 4 and this shall become a weekly payment due on the Monday of each week thereafter and the same late penalties will apply to that weekly payment as apply to the monthly payment. J. On _1/1/08 , the monthly payment (before adding 1/12 the estimated annual taxes and insurance) will increase to $_1350.27_ and the base rate for calculating the amortization credit at the time of option exercise will change to 10.99 (unless adjusted higher by another clause in this agreement) for the remainder of the term of this LP. K. Equity share: In the event option is not exercised on or before 12/1/06, Owner shall be entitled to 501/o of all appreciation over the option exercise price as determined by a state certified appraiser hired by Owner the cost for which will be a closing cost as defined by this agreement. 23. DISCLAM ER: You acknowledge that there is no way to know what the availability of financing, total purchase costs, and lenders prepayment penalties will be at the time you may decide to exercise your option to purchase. Therefore, you agree that these items shall not be conditions of performance of this agreement and you agree that you have not relied upon any representations or warranties of Owner, his agents, brokers, affiliates, or other parties, in regard to these issues. 24. FIXTURES: All improvements, fixtures, attached floor coverings, draperies including hardware, shades, blinds, window and door screens, storm sash, combination doors, awnings, and items permanently attached, shall be included, unless specifically excluded here NONE 25. ENCUMBRANCES: LPer shall take title to the premises subject to (1) Real Estate Taxes not yet due and (2) Covenants, conditions, restrictions, reservations, rights, rights of way and easements, if any. 26. EXAMINATION OF TITLE: You will have Fifteen (15) days after you notify Owner of your intention to exercise the option to purchase to order at your own cost, from a title company approved by Owner at Owner's sole discretion, and examine the title to the property and to report in writing any valid objections you have. Any exceptions to the title, which would be disclosed by examination of the record, shall be deemed to have been accepted unless you report them within the allowed fifteen (15) days. If you object to any exceptions to the title, Owner may, at his sole option, use all due diligence to remove such exceptions at his own expense, within ninety (90) days after receiving your report in writing. But if such exceptions cannot be removed within the ninety (90) days allowed, or if Owner elects not to remove such exceptions, all rights and obligations hereunder may, at your option, terminate and end unless you elect to purchase the property subject to such exceptions. 27. CLOSING COSTS: At closing, You will pay all transfer tax, title fees and other closing costs. 28. PRORATIONS: All LP payments, taxes, premiums on insurance, and other expenses of the property to be prorated as of possession by You. l/We have read and fully understand and agree to the terms and conditions contained in this entire agreement Date 1? -lib 29. EXPIRATION OF OPTION: This option may be exercised at any time after 12/1/05 and 7 shall expire at midnight _12/31/08 . After the expiration date of the option, this agreement shall be a lease only. Owner will have no further obligation to you related to the option and you will have no more rights under the option, whether legal or equitable. After expiration of option, Landlord at it's sole option, may at any time give 90 days written notice to Lper and terminate the lease. 30. NOTICE AND EXERCISE OF OPTION: When you have decided to exercise your option to purchase you must mail a notice of your intention, together with an additional $1000 in option consideration, to the owner, at least 60 days prior to the expiration of this option. If you have not defaulted on any of the terms of this agreement, when you exercise the option, the non-refundable option consideration and any credit due from the LP payment as noted in section 22 shall be credited to your purchase price and closing costs. 31. SEVERABILITY: If any part of this agreement is held to be invalid or unenforceable, in whole or in part, then that provision will be ineffective only to the extent of the invalidity or unenforceability without in any way affecting the validity or enforceability of the remaining parts of this agreement. 32. JOINT AND SEVERAL LIABILITY: If any default occurs, each of you, if there be more than one, shall be jointly and severally liable under all terms of this agreement. This means each of you may be held responsible individually for payments of all amounts due under this agreement. 33. OTHER DEBT: As part of this agreement, You agree to incur NO ADDITIONAL DEBT without the written consent of Owner. You also agree to pay all present payments on time. If you do not pay all present payments on time, or you incur additional debt without the written consent of Owner, you will be in default of this agreement. You agree that Owner or his agent shall have the right at any time to obtain a credit report and/or employment and income source verification on you during the term of this agreement and any subsequent agreements or actions related to this agreement. 34. INSURANCE REQUIREMENTS: At all times LPer shall fully insure the premises for both physical damage and liability with the Owner as the primary insured party. Coverage's to be minimum $500,000 liability and option price. In the event Owner elects, at its sole option, to directly acquire insurance, LPer's payment shall be increased according to the cost of the insurance plus a 10% administration fee; in this case, Owner's policy will not cover your personal property or liability, therefore Owner requires you to obtain a enters insurance policy to provide liability and contents coverage for you and your personal property and to name Owner as an additional insured on your renters policy. 35. SALES TAX: You are responsible for all sales tax due if the State determines at some time that this is a taxable transaction. In the event of a determination that sales tax is payable on the LP payment, your payment will be adjusted accordingly. 36. VENUE: You agree that regardless of where this agreement was signed, that this agreement shall be treated for legal purposes as entered into at Owners main office in Lancaster County, PA and that any legal actions that result from this agreement shall be in the proper jurisdiction of the District Justice of Owners current office in Lancaster County, PA or the Courts of Common Pleas of Lancaster County, PA or the District Justice or Courts of Common Pleas where the property is located, at Owners sole option. I/V?e have d and fully understand and agree to the terns and conditions contained in this entire agreement ?? Date `} -mil -CA 8 37. OWNERS TITLE: Owner, as referenced herein, may be equitable and may not necessarily be the "record" owner. 38. OWNERS UNDERLYING FINANCING: Contingent upon Owner closing on the permanent underlying financing for Owner. In the event this does not close, this agreement, at Owners sole option, may be declared null and void. 39. ENTIRE AGREEMENT- You acknowledge that this document contains the entire agreement between you and the Owner, his agents, employees or related parties and that you have no other oral or written agreements with Owner or any other person or business related to this property. 40. LEGAL REVIEW: You acknowledge that Owner has recommended that you have this Agreement reviewed by legal counsel to make sure you understand the legal significance of all terms and conditions of this agreement and you have either A) done so; or B) waived this recommendation. You also acknowledge that this Agreement and all terms and conditions of it were open to negotiation and that you are satisfied with all terms and conditions, as they exist. 41. SUPERSEDING AGREEMENT: This agreement supersedes all others between the parties and any affiliates. Nothing in this clause shall preclude the final reconciliation of all taxes and insurance and any amortization credit due under preceding LP agreement, if any. If at any time, to facilitate Lper obtaining financing, Owner and Lper enter into a simple sales agreement for the property, that sales agreement and any term within it shall never in any way supersede or modify the terms of this agreement. All terms of this agreement shall supersede all terms of any sales agreement done for financing convenience purposes and the terns of this agreement shall remain in full force and effect at all times even when a lender is processing a loan under an additional sales agreement. 42. BROKER DISCLOSURE: Douglas L. Zook is a Licensed RE broker functioning solely as a principle in this transaction. You agree there are no brokers involved in this transaction unless identified here NONE 43. AUTOMATIC PAYMENT: You agree that LP payment can be taken from your bank account by automatic electronic withdrawal on the due date, at owners sole option, and agree to provide the necessary information to set this up within 10 days of request by owner. 44. PRE-OCCUPANCY: Should you, with Owners required permission, occupy the premises prior to the start of term of this agreement, you will owe in advance an amount equal to 1/30 of the monthly payment for each day you occupy prior to the start of the term. No amortization credit will accrue for this preoccupancy. 45. NOT AN INSTALLMENT SALE: You expressly agree that this is solely a lease with option to purchase agreement and shall never be construed to be an installment sales agreement under any circumstance. 46. RECORDING. Under no circumstances shall Tenant record this lease. Landlord may record at his sole option. 47. LEAD NOTICE: If checked here, this is a pre-1978 home and a lead notice is attached: hive read and fully understand and agree to the terms and conditions contained in this entire agreement Date -? -L? 9 48. MOLD: Mold is caused by moisture and certain types can be a hazard to your health. If you ever have a moisture problem, whether it be from a pipe leak, roof leak, flood, or any other cause it is extremely important to address it immediately. Please contact Owner immediately if any moisture problem develops so Owner can suggest ways to minimize the risk of mold developing so you can protect your home and your health. Owner will not be liable for any damage or injury to You , your invitees, or any other person, or to any property, related to mold. 49. CARBON MONOXIDE: Carbon Monoxide is a byproduct of combustion of fossil fuels such as natural gas which your home may be heated with. If you do not keep your heat system and hot water heater maintained, carbon monoxide can be released into the home which can make you sick and can even kill you. It is your responsibility to keep your home maintained at all times including your gas systems to protect your health. While not required by law, Owner recommends you have a carbon monoxide detector operable in your home at all times. They can be acquired at the local hardware store for less than $50. Owner will not be liable for any damage or injury to You, your invitees, or any other person, or to any property, related to carbon monoxide. 50. RADON: Radon is a naturally occurring clear and odorless gas that can increase your risk for certain kinds of cancer and other illnesses if the concentration is too high. High levels of radon are easily mitigated by a vent system. Owner makes no representations about the existence or non- existence of radon in this home. You are encouraged to satisfy yourself if you have any concerns about radon in your home. 51. WATER QUALITY It may or may not as yet be determined if your home will be dependent upon a public water supply or on a well. If it is or becomes dependent upon a well, Owner makes no representations or warranties as to the quality of water from the well, the measures, equipment or costs which may be necessary to store, deliver or treat the water, in order for it to be suitable for domestic use and consumption. Under no construction of this agreement, implied or express, shall Owner be considered responsible for the ultimate quality or suitability of the water for domestic use. Water quality can change over time due to many environmental and uncontrolled factors. Water testing is readily available and LPer is encouraged to investigate and become satisfied as to any concerns about water quality in your home. It is solely the responsibility of LPer to do so, if desired, and LPer agrees to hold Owner harmless from any claims by LPer or claims by parties in possession by or through LPer, from all damages, costs and attorney fees, which may be applied to Owner as a result of such claims. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement Date ) )--?5 10 52. ARBITRATION CLAUSE: This Agreement shall be governed by and construed in accordance with the law of the State of Pennsylvania. Any action to pursue eviction or regain possession and obtain judgment for rent liability and property damage may be pursued in the appropriate courts of said state, at the sole discretion of the Owner. Any other claims or action, by either party, to enforce or interpret this agreement and all other disputes under the agreement shall be resolved by binding arbitration in Lancaster., PA. Either party shall give notice according the notice provisions of this agreement, sending the other a demand for arbitration under this clause. Both agree on an arbiter or, if they cannot parties may agree on an arbiter within 30 days of the date of the demand, each shall pick an arbiter within 45 days of the date of the demand. Those two picked arbiters shall choose a third arbiter within 10 days thereafter (55 days of the demand date) and the arbitration will proceed as directed by the arbiter/s and as otherwise proscribed according to the Laws of said state. Time is of the essence and failure to timely join in the choice of arbiter/s, by either party, shall be conclusively deemed a waiver of the right to choose and the matter will proceed under the single arbiter chosen timely. By signing below, you acknowledge you have read and fully understand and agree to the terms and conditions contained in this entire agreement and that you have received a copy of this agreement. IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND HEREBY PARTIES HERETO HAVE AFFD(ED THEIR RESPECTIVE HANDS AND SEALS, THIS 2Z_ DAY OF li01/ 2005 Witness Per (SEAL) Witness ! Current address: #29 90 Kline Ave, Manchester, PA 17345 ACCEPTANCE \ By signing below, the Owner accepts your offer and acknowledges having a Owner: Douglas L. Zook 480 Running Pump Rd and PO BOX 1870 Lancaster, PA 17601 Fraser, CO 80442