Emilie Fairbanks, Esq.

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Entries by Emilie Fairbanks (74)


DC Puts Strict Limits on Short Term Rentals 

Airbnb is no more in DC. As of October 2019. DC City Council was busy today. They passed a law essentially banning Airbnb and other short term rental in DC. Or did they? Owners can rent out a room in their home or a basement unit for up to 90 days a year and must now register with DCRA. The Council is giving DCRA time to come up with a license for short term rentals, as one currently doesn’t exist. DC wants to preserve affordable housing units while owners want the freedom to rent their home on a short term basis. In DC that can be even more important given that anyone who moves in as a tenant can literally stay forever if they keep paying rent and don’t violate the lease. So if you aren’t up for dealing with DC landlord tenant laws this was another option. The fact that the owners had no licenses was simply ignored by DCRA, a fact acknowledged in the testimony to the Council. So if you currently list your unit on Airbnb or another short term rental site is it time to panic? I’d say no. It’s time to make sure you can pay your mortgage without that income. But Airbnb has sued Boston over a similar law and has been trying referendums in other areas. Nothing is a done deal when the law doesn’t go into effect for almost a year. But you may want to consider looking at whether Airbnb is going to be around in DC long term. Because the answer as of today is no. If you want to discuss your options for renting your property longer term or how this law impacts you contact us.  


What if the Tenant Doesn’t Pay the Protective Order?

When you file a nonpayment case the tenant can demand a trial. That could be a jury trial or a bench trial. Either way the time it takes to have your case heard could stretch out several months. A protective order requires the tenant to pay the rent into the court registry until the trial. Tenants often request that the protective order be less than the monthly rent. If they do a Bell hearing will be held. I’ve talked previously about how to handle Bell hearings. But once you the landlord gets a protective order requiring the tenant to pay the rent into court registry, they need to watch the court docket to make sure the tenant is actually making the payments. If the tenant doesn’t make the payments the landlord can file a motion to enforce the protective order. If the payments aren’t made the court can sanction the tenant by striking the jury demand or moving up the court date. While landlords won’t win every motion for sanctions it is always worth filing. Making sure the tenant is making those payments means the rent will be in the registry when the case ends and the landlord won’t lose several additional months of rent if the tenant moves out and doesn’t pay. So keep an eye on the protective order! Getting it is just the first step. 


Licencing for DC Landlords

Small landlords in DC have, in theory, fewer requirements than large landlords for administrative and licencing procedures. If you’ve ever tried to get your single family home or basement apartment licensed as a legal rental in DC you know that’s an utterly ridiculous statement. The hellish nightmare you went through trying to obey DC law for your single rental unit likely felt like a Kafka novel or perhaps like you’d accidentally time traveled to a Soviet republic. 

If you had to deal with trying to get your rental to pass inspection for a tenant with a DC Housing voucher you likely already changed your name and moved to a country without an extradition treaty with the US. I’ll deal with that in another post. Not the extradition part. You need a different lawyer if you actually did that. Don’t do that. It was a joke. 

However it is entirely possible to become a legal, licensed, rent control exempt small landlord in DC. Even if you already have a tenant living in your unit. If you have a tenant living in the unit talk to a lawyer before you start this process. It can be more complex than a blog post can address. But it’s still entirely possible. And beneficial. Don’t hide out from it. You want to be a licensed landlord. Why? Ok for now trust me. I’ll address that in another post too. 

So what are the steps you need to take? First, you need a business license. You might be thinking well now is a good time to get that LLC set up so I can protect myself from liability. STOP! If you own the property in your personal name do not set up an LLC or any other entity unless you speak with a landlord tenant attorney first. The consequences could be giving up your right to be exempt from rent control. Whew. The good news is you can get your business license online in a matter of minutes. The bad news is the property still has to be inspected. So you won’t actually have the lien s finalized until DCRA comes and inspects your property. That can be good. You will know you are in compliance with the DC Housing code. But if you have any repairs to make now is the time. Let’s assume that gets done. 

If you have a single family home or a condo you don’t need a Certificate of Occupancy. If you have more than one unit, you do. So if you have a house with a basement apartment and you are rent both, you do. If you have a duplex you do. That is a separate process with DCRA. It’s pretty painless once you pass the inspection. Of course there is a charge. 

Now that you have those you can get the rent control exemption form. That is the part you really WANT to do. It’s the part that allows you to raise rent, give the tenant notices, and enforce your lease. But it has to be filed in person, so that’s annoying. 

If you need guidance with any part of this process or if you get struck in a loop of failing the inspection or any other part of filing this paperwork please contact us to arrange a consultation. 


New DC Eviction Procedures 

The US Marshals are radically changing the procedure for evictions in DC. They say the new procedures will begin this summer, but we don’t have a firm start date yet. But so far this is what we know. 


Tenants will be notified of their eviction date in advance. Instead of receiving a 75 day period during which they can be evicted, tenants will get the date their eviction is scheduled two weeks in advance, by mail and online. This will almost certainly create litigation over whether tenants received that two week notice properly. We will have to see how judges treat these claims, although usually claims that things weren’t received from the court or the Marshals are treated as less credible than if a tenant says they didn’t get notice from the landlord. The larger problem is that the Marshals have yet to address what happens when an eviction has to be rescheduled for weather. If the tenant again must receive two weeks notice the landlord could lose additional months of rent because of this requirement. On the other hand tenants have often gotten writs stayed on the day of the eviction because they claim they just need a couple more days and they had no idea they were about to be evicted. That claim becomes more difficult to make under these rules. 


Landlords will no longer be required to put tenants belongings out on the street. The locks can be changed and that is the only action the Marshals will consider an eviction. They are saying that this follows the procedure in other states. However, other states have laws about what landlords must do with the tenants belongings. Without other rules it’s unclear what the landlord’s responsibilities are. It’s possible tenants could sue over what happens to their belongings. Tenants advocacy groups have encouraged that landlords put items in storage. Some states have laws requiring storage for certain periods of time. But DC doesn’t. Without a law saying storage is required for a specific period of time and who needs to pay for storage the Marshals Office is creating a huge problem with no solution. The Marshals specifically aren’t saying landlords can’t put items out on the street but now if a landlord does so there could be liability if the items are stolen or destroyed. Unfortunately no one knows.


What Isn’t Changing

Everything you need to do to get a legal eviction isn’t changing. You still have to go to court, get a judgment, file all the same paperwork, and pay all the same fees. Locking your tenant out without legal process will still result in a wrongful eviction claim and a ton of trouble. 


Undoubtedly there will be plenty of people ready to hand out advice on what you “should” do under these new rules. The fact is no one really knows. Unless DC City Council decides to pass a law about what should happen to tenants belongings, it’s not clear. The circumstances of each case may be different but as we learn what judges find palatable that will guide what becomes the new acceptable process in DC. But that will take some time. Buckle up. It may be a rough summer. 


Magistrate Judges in DC Landlord Tenant Court

As of January 1, 2018 a couple types of DC landlord and tenant cases will be potentially heard in front of Magistrate Judges instead of Associate Judges. First, all cases before Housing Conditions Court will be heard by a Magistrate Judge. Second, cases in landlord and tenant court will be heard by a Magistrate Judge on Fridays.

So what, you might ask? A judge is a judge. Not exactly. To have your case heard before a Magistrate Judge all parties have to agree and sign a paper saying they agree. In Housing Conditions Court that’s no big deal. There is rarely any money at stake and the court is focused on finding solutions to problems between landlords and tenants, not punishing anyone. However, for eviction cases the potential for problems is serious. Eviction cases are taken very seriously by the Court of Appeals. Any appearance that there has been any irregularity could be a problem. It is much easier is question the authority of a Magistrate Judge. The Magistrate Judges are completely capable but they have less authority. So there is some risk with allowing your eviction case to go forward before a Magistrate Judge. It’s a hard choice and one that will likely be strategic and different in different cases. If we can help you sort out how to proceed with your case contact us.