Emilie Fairbanks, Esq.

202 681 4694 office

202 688 1864 fax

419 7th Street NW, Suite 405

Washington, DC 20004

info@efairbankslaw.com

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Friday
Sep262014

Frequently Asked Questions About DC Landlord & Tenant Protective Orders 

Protective orders are frequently misunderstood but an extremely important tool for DC landlords fighting to get possession of their property from a tenant not paying the rent. Here I'll review some frequently asked questions and common misconceptions about protective orders and give landlords some tips to use them effectively. 
1) What is a protective order? 
A protective order requires your tenant to pay the rent, or a portion of the rent, into the court registry until trial. It protects the landlord from the tenant becoming farther behind in rent while the case winds it's way through the court system.
2) How do I make my tenant pay a protective order? 
Ask the judge! If the tenant wants a trial or even a continuance you should request a protective order. The judge may decide to reserve you rights to the protective order and not make a decision that day, especially if the case is only bring briefly continued, but asking will make sure you can get the protective order to go back to the first day you made the request. 
3) Can I get a protective order in any DC Landlord & Tenant case? 
No, only in nonpayment of rent cases or cases consolidated with a nonpayment case. If your tenant has violated the lease in some other way and you gave them a notice for having a dog or not keeping the apartment clean you can't get a protective order. This gets legally tricky so consult a lawyer if you have a nonpayment case and a lease violation case. 
4) Can I get a protective order for the back rent? 
Nope. Protective orders in DC Landlord & Tenant cases are "forward looking."  This means the Landlord & Tenant judge can only order the tenant to pay future rent into the court registry in DC. For example if the initial court date is October 15th the judge can order the tenant to pay half of October rent into the registry and all rent for any future months until the case is resolved. Even if the tenant hasn't paid rent for six months before the landlord comes to court, the judge cannot order that rent be paid into the registry. Decisions about that rent are made at trial. 
5)  My tenant (or her lawyer) asked for a Bell hearing. What's that? 
I've discussed Bell hearings more in depth here: http://goo.gl/nSqj9p. For now, I'll just cover the topic briefly. A Bell hearing allows the tenant to claim she shouldn't have to pay the full rent into the registry because of DC Housing Code violations in the property. If a tenant asks for a Bell hearing make sure you get a time to inspect the property, make any repairs before the hearing, and document the repairs. If the landlord can show their are no DC Housing Code violations at the time of the Bell hearing they can get the full protective order. If there are some problems the judge may reduce the amount. 
6) How do I know if the protective order is being paid? 
The landlord needs to check the court docket to see if the protective order has been paid. You can go to the DC Landlord & Tenant clerk's office and ask or you can check the docket online at www.dccourts.gov/cco. You need to have your case number or you can search by name. Check the day after the payment is due to see if it was paid. Usually the payment is due once a month and you should check every month. 
7)   My tenant didn't pay her protective order. What should I do now?
File a motion for sanctions. The judge might strike the tenant's answer, counterclaim, or jury demand or grant another sanction. They might move up the trial date, if possible. Usually the judge won't give you a default judgment for a tenant not paying the protective order, the rules discourage that, but the other sanctions they can give will move your case forward. Sometimes a tenant will pay before the motion is heard. A judge will almost never give a sanction in that case. That's ok, you got the tenant to put that money in the registry and when the case ends you will be much better off having it. 
8)  What happens to the money in the registry? When do I get my rent? 
Unless you can show a serious hardship, which is very difficult, the money stays in the court registry until the case is over. The judge will release it to the winning party at the end. If the landlord proves the tenant owed that money in rent, the money will be released to you. The DC Court Finance office will send you a check. Cases can go on a long time so surviving without your rent can be difficult but having the tenant paying it into the court at least provides you some protection you will get it eventually. 
DC Landlord & Tenant Court can be frustrating and complicated. If you need help please don't hesitate to contact us
Wednesday
Sep172014

DC Evictions & the Weather 

It's been a good month in DC if you are a landlord with a live writ of eviction for your tenant. The Marshal's Office is caught up on the backlog of evictions and writs are being executed extremely quickly. That's great news for cases where eviction is inevitable but if the landlord is hoping to be paid this fast moving process can prevent landlords from getting money they might have gotten if the process had taken a little longer. Landlords have to decide if waiting is a good risk. 

Unfortunately because winter is coming fast the eviction process can slow to a crawl any day so putting off an eviction is a huge risk. No residential evictions can be done in DC if there is a 50% or greater chance of precipitation is forecasted or if weather forecast calls for temperatures below 32 degrees Fahrenheit over the next 24. That means when we get into late fall and winter evictions will stop except for the occasional warm clear day. That will create a backlog and landlords can wait for months to evict a tenant. 

For now, when you file your writ make sure you are ready with your eviction crew because when the Marshal's Office to say you are scheduled for the following day, you can take advantage of the good weather. 

 

Monday
Jun162014

Changes to DC Landlord & Tenant Rules & Procedures 

There have been a few changes to the DC Landlord & Tenant Court rules and procedures recently and a few more are coming. Here is your update:
1) There is a new format for the Notice to Tenant of Payment Required to Avoid Eviction (otherwise known as a Form 6 or a Redemption Form). Why? The fees landlords can charge tenants have changed. You must use the new form. Things are worded a little differently so read it carefully before you fill it out.  
2) You can no longer charge tenants the entire writ filing fee at the time the writ is filed. Landlords can charge $18 to the tenant when they file the writ and the remaining amount when and if the marshals actually come to the property. So if the tenant wants to redeem during the eviction, they must pay the entire writ fee. Before the eviction starts, just $18. The reasons is that if a tenant moved out or pays before a writ is executed the remaining amount can be refunded to the landlord. It can take time, I just received refunds from 2012 a few months ago, but if you make a formal request you can get the money more quickly. The old rules required landlords refund that money to the tenant. Now the tenant is only charged if the landlord actually incurs the fee. 
3) The Landlord & Tenant Clerk's Office has announced they will be starting to scan each item as it comes it and won't be maintaining paper copies of many filed documents, such as motions. They will give the original back to the filer. As always it's extremely important for the filer to keep a paper or scanned copy of all the documents so if the Clerk's database has any problems you can prove what you filed and when.  It also means the paper documents won't be available to for you to review on the day of court, the judge can see them on the computer. If you need copies you'll need to go to the Clerk's office before the court date and pay for copies. Another good reason to keep good records. 
None of these changes are substantive but as usual failing to follow each and every procedure could result in having your eviction delayed or even having your case dismissed. 

 

Wednesday
Apr092014

Office of Tenant Advocate Stakeholders Meeting 4/23/2014

The next OTA stakeholder meeting will be held on Wednesday, April 23, 2014 from 1:00 p.m. to 3:00 p.m. The topic will be hardship petitions and the effect on rent control. Stakeholder meetings are held in the OTA conference room located in Suite 300N of the Reeves Center, 2000 14th Street NW.

Hardship petitions allow owners of buildings that would otherwise be under rent control to increase the rent to keep up with expenses. The process is long and complex. It's also controversial. This should be an interesting conversation. Landlords, owners, realtors, and property managers are certainly stakeholders in this process so if you have time to be present this is a good opportunity to be heard.

Wednesday
Apr022014

DC Landlord & Tenant Service of Process

If there is one issue I see pro se landlords have their cases dismissed on over and over, it's issues with service of process. The rules can be a little complex but usually the problems arise when the landlord wants to save the cost of a process server. Remember the following tips and you will have a better chance of not having to start over for improper service.

1) Don't serve anything yourself and don't have any interested party serve anything for you. The process server must be a person not involved in your case.

2) Your server must make diligent efforts to serve the tenant in person before posting and mailing are acceptable. That usually means two attempts, one in the morning and one in the evening, on different days. But personal service is best so if you know when the tenant is home, tell your server and make life easy for them.

3) Details are important. If the process server leaves the notice or complaint with someone they must describe that person, as well as the address where they took it. If they posted it they must describe the door and the hallway, such as "second door on left after coming in glass entry doors, door painted white with the numbers 123 in gold paint." A photo of the posted notice is a plus. The affidavit must be notarized and filed with the court before the initial hearing or your court date could be delayed.

4) A thirty day notice for anything other than nonpayment of rent must also be served on the Office of the Rent Administrator within five days of serving the tenant. These notices require special language about that service, which I'm not covering here.

5) Give yourself enough time. A thirty day notice handed to the process sever can't be filed on in Landlord & Tenant court on the thirtieth day, you need to look at the service date. The summons and complaint also must be served timely or your case will be delayed or dismissed.

6) Always bring a copy of the notarized affidavit to the initial hearing. If the court doesn't have it for some reason it will save you time.

Proper service of process is the first obstacle you must overcome to getting your tenant evicted. Even if the tenant comes to court, if service was improper your case can be dismissed. If your tenant isn't paying you that isn't time you can afford to lose.