Emilie Fairbanks, Esq.

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202 688 1864 fax

419 7th Street NW, Suite 405

Washington, DC 20004


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Protective Orders: Law vs. Reality

If you go to court for non-payment of rent in the District of Columbia, you are entitled to request a protective order. That means, you can tell the judge you want your tenant to pay the rent into the court registry until the case is resolved. Protective orders don't deal with back rent, only the rent from the day of the first court date forward, so if you sue a tenant for five months of back rent and come to court on March 1st, the protective order can start March 1st. The back rent is resolved at trial. The tenant can also request they pay the rent into the registry. The tenant can also request the amount of rent be reduced because of housing code violations, so be prepared to show the property is in good shape. A protective order allows you to come back to court if the tenant doesn't pay and ask for sanctions, such as striking the tenant's jury demand or answer, or in some cases entering judgment in your favor. That's the law.

Now let's look at the reality. If you have a protective order and your tenant is paying into the registry you can't access that money. You are still required to pay expenses for the property and do repairs although you won't be getting any rent. You may get that money when the case is over, but if you need that money to pay your mortgage and utilities it might not help you at that point. While there are ways to try to get money out of the registry before a case ends, they aren't easy. If the tenant is willing you could agree the rent will be paid to you directly until the case is resolved. Many tenants won't agree to that, but sometimes creative solutions can be found. Landlord and Tenant cases in DC can drag on for months or even a year, so having the protective order put in place correctly and enforced is extremely important for your financial health and future. 

If you are starting a nonpayment case or in the middle of a case that you can't resolve, contact me


Rent, Sell, or Pay the Tax: What Should Mayor Bowser Do? 

Mayor Bowser is moving from her NE DC duplex to a house in NW but says she doesn't plan to sell her duplex. Many of my clients face similar situations when they need to leave DC for work or get married and buy a larger home and have to decide what to do with a DC property. What are her options?

1) Sell: Mayor Bowser has apparently decided not to sell her property at this time but selling is often a good option if you don't intend the return to the property. It can also be a way to make money for your new property without becoming a landlord. So why not just sell? There are tax consequences of selling that might be problematic, always check with an accountant. Perhaps the value isn't enough for you to sell right now and you want to bet on the property gaining value. Talk to to a real estate agent to evaluate if that's a realistic hope. If you might want to return to DC you might also decide to keep the property.

2) Rent: Do you want to be a landlord? DC is tough. Be prepared. I know what you're thinking. But you're a landlord-tenant attorney! Shouldn't you be recommending this option? Sorry, being a DC landlord is not for the faint of heart. You must get a rental license, rent control registration or exemption, pass an inspection, have a DC specific lease, have a plan for getting repairs done, screen applicants carefully, and know the risks. A DC tenant can hold you up in court for months without paying rent. Being a DC landlord is not passive income. It's risky. You can loose money. It can also be a great way to make a profit from your property while you are away, if you're willing to do it right.

3) Family: Sometimes a property can be occupied by other family while you are away. But be careful. Determining if a family member is a tenant or just a guest can be very complex and if there is damage to the property figuring out who pay is difficult. If the expenses become too high and you want to sell or you want to move back in and your family member doesn't want to move or you aren't sure if they are a tenant, consult an attorney before taking any action. Hint: did they pay you any rent, ever? They are a tenant.

4) Register the Property as Vacant and Pay the Tax: DC does not want vacant properties. If you plan to leave your property unoccupied you must register it and pay a vacancy property tax rate. If you think you can keep your homestead deduction instead, consider that your neighbors can call DC to turn you in, most people hate vacant properties on their block. If, like Mayor Bowser, you are moving elsewhere in DC you will also need that homestead deduction for your new place.

5) Renovate: One exception to that pesky vacancy tax is if your property is undergoing permitted renovation. If you only plan to be gone for a short period, like year, perhaps now is the time to do that HGTV style makeover you've always wanted to do. But managing a renovation from out of town can be complex so be certain you hire someone who will act as your project manager and oversee your interests while you are away.

It can be a hard to decide what to do with your old property when you are also trying to move. Contact me if you need help with crafting a lease, registering your property, or just considering the risks and rewards of renting.


Winter is Coming

In DC winter is a very hard time to be a landlord. Why? 

1) Evicting a Difficult Tenant Becomes Impossible: DC does not perform evictions when the weather is too cold, snowing, or raining. That is a lot of November through February. Does that mean landlords should put off suing non-paying or problem tenants until spring? Just the opposite. Getting your problem tenant on the list for eviction is more important than ever this time of year. Evictions are performed in the order tenants are put on the list. If your tenant isn't on that list until early spring you will have to wait until the backlog of evictions from winter are done. 

2) Landlords Have Additional Responsibiloties Under the Housing Code: Landlords must have their heating system inspected and serviced every fall. Get it done. If your heating system has problems during the winter, fix it. Right away. Judges and inspectors treat heat issues as an emergency so you should too. The temperature must be maintained at 68 degrees during the day and 65 degrees at night. 

3) Failure to Remove Snow and Ice Will Get You a Fine: Even if your lease says your tenant is responsible for snow and ice removal in a single family home, the city will still send the fine to you, the homeowner, if it isn't done. So save yourself time and hassle and pay a service to clear snow and ice instead of depending on the tenant. If you own a multi-unit building you are always responsible so make sure it gets done ASAP. A tenant who falls on an ice sidewalk is bad news. 

Contact us if you are a landlord in need of legal advice this winter. 


DC Department of Housing and Community Development Holding Saturday College

DC Department of Housing and Community Development is holding what it is calling Saturday college on November 14th. They are holding seminars on Housing Regulation Administration Overview, Allowable Rent Increases, Code Violations, Notices to Vacate, and What Happens When a Landlord Wants to Sell. This would be a useful program for DC landlords and prospective DC landlords. Check out the website for how to register: http://dhcd.dc.gov/event/housing-regulation-administration-saturday-college


Changes to DC Landlord & Tenant Court Coming in 2016

There are changes coming to the District of Columbia Landlord and Tenant Court. Not changes to the law, changes in the way court days will be scheduled. If you are a landlord who has previously filed cases don’t let these changes surprise you. You may know that DC L&T runs and “overflow” courtroom upstairs from the main courtroom in B-53. Currently, cases are sent to that courtroom throughout the day as needed to clear backlogs in the main courtroom. If you’ve been to Landlord & Tenant Court in the past couple years you might say “wow that’s not working.” It turns out the judges and clerks agree, so they are making additional changes to the system. In early 2016 the following changes will be implemented: 

Cases will be divided by type and courtroom at the beginning of the day. In Courtroom B-109, the traditional L&T courtroom across from the clerk’s office, Initial Hearings, cases coming to court for the first time, and Further Initial Hearings, cases coming to court for the second time, usually because something happened the first time that had to be resolved before this hearing, will continue to take place at 9 a.m., after roll call. At 10 a.m. more Further Initial Hearings and Status Hearings will take place. At 11 a.m. Trial Status hearings will take place. A trial status usually just establishes that all the parties for a trial have arrived at court, how many witnesses are going to appear for each side, and if mediation needs to take place. The actual trial will take place later in the day. 

In Courtroom B-53, one floor up from the clerk’s office, cases will also start at 9 a.m. This is a big change. Motions, Hearings on Applications to Terminate Stay, Hearings on Notices of Intent to Seek a Writ of Restitution will all be heard in that courtroom at 9 a.m.  You do not need to go downstairs for roll call or to hear the opening speech first. In fact if you did you could miss your hearing. At 10 a.m. Ex Parte Proof Hearings, Evidentiary Hearings, Bell Hearings, and Accountings will be heard in B-53.  

Landlord and Tenant court can be chaotic and confusing. Knowing where you need to be and at what time can mean the difference between success and having to refile your case. If you are filing something and you aren’t sure what courtroom you need to go to or what time you need to arrive make sure you ask the filing clerk to clarify for you. If you need additional help and would like an attorney to represent you in court or you would just like to discuss your options, contact us

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