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Sunday
Sep182011

DC Landlord & Tenant Court Initial Return Hearing Possible Outcomes

Last week I outlined how to file a non-payment of rent case in DC Landlord and Tenant Court. In this article I will review the possible outcomes of the court hearing on the initial return date and go over some tips for how landlords can best position themselves to move forward from each of those outcomes. 

1) Dismissal for Failure to Prosecute: The first possibility for landlords is that they fail to appear on the initial return date or are late to court and miss roll call and their case is dismissed under Rule 11 for failure to prosecute. If your tenant has paid their rent and you want to dismiss you are better off going to court and filing a dismissal than just not appearing. If you are running late or an emergency comes up and you cannot appear that day, call and if possible also email the court immediately and request a continuance.  If you know ahead of time you won’t be able to appear, file a motion for a continuance.  Be sure to leave a contact number and clearly explain the reason, and give new dates, at least two weeks away, on which you can come back to court.  There is no guarantee the judge will not dismiss your case, but you are on better ground. If your case is dismissed you can file a motion to reinstate. 

2) Default: If you appear and the tenant does not, when your case is called, state your name and request a default. A default is only a judgment for possession. If you personally served the tenant, as opposed to service by posting and mailing, you might be entitled to a money judgment.  To get a money judgment you will have to go before the court, usually on another date, but you should request the money judgment when you ask for the default and your case will be called before the judge after roll call and scheduled for a ex parte hearing where you can prove how much the tenant owes and get a money judgment.  Roll call and be confusing and busy.  I recommend that even if you get a default you stay until after the first cases have been called, around 10:15 or 10:30 AM and make certain your tenant doesn’t come late.   Any tenant who appears before 10 AM will have their default automatically vacated by the clerks, and of the landlord has gone the case will be delayed until a new hearing can be scheduled. 

3) Dismissal: When your case is called, the clerk may not enter a default even if the tenant isn’t there because there is a note on your case.  That means that the law clerk, the landlord/tenant clerk’s office, or the judge has found something wrong with your case.  Your case will be called before the judge after roll call the judge will explain the problem.  Common issues are problems with the affidavit of service, problems with the complaint, and problems with spelling or address differences between the complaint and the affidavit.  If the problem is a misspelling in the tenant’s name in one of the documents, ask to amend the document and the judge may do so right away.   If the problem is more substantial, your case could be dismissed.  If that happens, the landlord should seek legal advice to make certain the case is correctly filed the second time.  Have a copy of the complaint and the affidavit of service with you on the court date and make sure the affidavit was filed before the court date.  That will minimize problems. 

4) Continuance: Continuances can be granted for a variety of reasons and a variety of hearings can follow, so I will address them separately.   Whatever the reason for the continuance, use the time to notify the tenant, inspect the unit, make repairs and take photos for any future hearings.  Also consider consulting an attorney yourself, especially if the tenant gets counsel or the court finds problems with your case.   

a) Tenant Cannot Appear: Tenants can request a continuance from the initial return date because they have a conflict or an emergency by calling the court or filing a motion.  These are usually granted, but it is worth making the record clear that it was at the tenant’s request so that you can oppose it if it happens again.  The other common situation is that tenants will send a friend or relative to court on their behalf.  Non-lawyers cannot appear in court for another person, so the case will usually be continued to give the tenant an opportunity to come to court or get a lawyer. 

b) Further Initial Return: If the tenant is at the hearing, try to avoid a hearing for further initial hearing or further initial return.  It wastes time and doesn’t move the case forward.  See below for better options if the tenant requests a continuance for no apparent reason. 

c) Ascertainment of Counsel: Tenants often request a continuance to find an attorney.  The normal continuance is two weeks. Tenants will often ask for these continuances in front of the judge so be prepared to find out why they want the continuance, know what dates you are available and ask for a protective order. 

d) Bell Hearing: This is a hearing to set the amount of the protective order, so technically this doesn’t move the case forward and isn’t a reason for a continuance, but it can be the next hearing after an initial return and that can be useful.  If the case is being set for something else and the tenant won’t agree to a protective order, you can request a Bell hearing but you must be prepared for a substantive hearing on the conditions of the apartment. 

e) Bench Trial: The tenant can request a bench trial orally or in a written answer.  If they file a written answer they often also file a counterclaim and/or a set-off for three years of back rent.  Usually, the tenant is claiming that there are Housing Code violations.  Get a specific list of the violations claimed and request that the tenant allow access for inspection and repairs.  If you have concerns about access try to get agreed upon dates in writing, but make certain you can keep those dates.  Inspect the unit as soon as possible, make repairs and take photos of the entire unit. 

f) Jury Demand: If the tenant files an answer and jury demand, your case will be sent to the civil division and set for a scheduling conference on a Friday morning.  You will receive the date in the mail.  A landlord who receives a jury demand should consult an attorney immediately.  Civil division cases include discovery requests, mediation, pretrial, and potentially a jury trial.  Those things are very difficult without the assistance of an experienced landlord’s attorney.  Tenants who file jury demands also almost always file a counterclaim, which potentially means the landlord can end up owing the tenant money.

g) Drayton Stay: If the tenant has filed a tenant petition, they can request a Drayton Stay, which will stay a non-payment case until the tenant petition is resolved.  You can still ask for a protective order.  Tenant petitions and Drayton Stays are complex; consider getting counsel before you proceed.            

5) Settlement: Cases can settle in two major ways and can have several elements.  I will address settlement options more in a later article.  Landlords can potentially lower their costs by settling at the initial return.  Here are some of my views on settlement in general.   

a) Entry of Judgment with a Stay: A judgment with a stay or consent judgement, sets out payment terms the tenant must meet and enters a redeemable judgment against the tenant.  If the tenant makes the payments a permanent stay is entered.  If the tenant fails to make any of the payments, the landlord can file to have the stay lifted, another hearing will be held to lift the stay, and the landlord can file writ.  The tenant can still pay everything they owe and remain in the unit, up until the eviction is complete.   

b) Settlement Agreement: A settlement agreement also sets out payments terms.  A settlement form can be used or the parties can write it themselves.  If a tenant fails to meet the terms of a settlement agreement, the landlord has to return to court to have a judgment entered and file a writ.  This takes more time and is slightly less certain than with a judgment with a stay, but it can still be a good outcome for the landlord if it is written correctly.   

c) Repair Addendums: A repair addendum can be used with either a judgment with a stay or a settlement agreement.  It sets out repairs that the landlord agrees to do and dates by which the landlord agrees to do them.  It is best to also include an agreement about access to the unit for repairs if there have been previous problems between the parties.  If you don’t complete the repairs on-time the tenant can come back to court and potentially get some of their rent back, and get an order for the repairs to be done, so be certain you can complete the repairs in the time you agree to and that you document your completion of the repairs.  

d) Pay-On-Time Addendums: A pay-on-time potentially allows the landlord to get a non-redeemable judgment if the tenant fails to make the payments in the agreement on time and in full and to make rent payments for up to a year on time and in full.  The court will not always approve these agreements even if the parties agree and many tenants will not sign them.  They are controversial for a variety of reasons but can be useful if used in the right circumstances, usually when the tenant has a long history of late payments and has been sued previously.  You will usually need a lawyer to draft this type of agreement.      

6) Entry of Judgment for the Landlord: If the tenant agrees they owe the money and they have no defense, the court will sometimes enter a judgment for possession for the landlord.  In many states this is the most common outcome of non-payment cases, in DC it is one of the lease common outcomes.  This is often called a judgment by confession. 

Landlords in DC have less control over what happens after they file a non-payment case than in most other jurisdictions.  Knowing the possibilities can help you navigate the day successfully.  Be ready to spend the entire day in court.  Be prepared by knowing how you would like to settle the case, inspecting the apartment before the hearing, making all necessary repairs on a timely basis and documenting the condition of the unit, and organizing your documents before court.  If you need more assistance, contact me