March 20

DC COVID-19 Response Emergency Amendment Act of 2020

DC Council has enacted emergency legislation that affects rental housing in the District of Columbia. Most importantly, while the DC Superior Court had administratively cancelled hearings through May 15, 2020, the new statute explicitly prohibits new cases from going forward. D.C. Code § 16-1502 now states that a summons must be served seven days in advance of a hearing and the seven-day period excludes any period of time for which the Mayor has declared a public health emergency.

The statute also explicitly states that landlords cannot perform an eviction or charge a late fee during a public health emergency.

Other relevant sections state that electric, gas, and water service cannot be shut off for nonpayment during this public health emergency. Time frames are also extended for other tenants’ rights, such as the Tenant Opportunity to Purchase Act (TOPA), responding to conversion and sale documents, and filing tenant petitions.

A copy of the legislation can be read here.

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March 16

District of Columbia Superior Court: Coronavirus (COVID19)

As of March 16, 2020, the District of Columbia Superior Court has issued an Order regarding how it is dealing with the Coronavirus (COVID19) and pending court cases.

All evictions on or before May 1, 2020 are stayed.

All court hearings currently scheduled on or before May 1, 2020 in many branches of the Civil Division, including Landlord and Tenant, Foreclosure, and Housing Court will be rescheduled. Parties should not appear and the court will set new dates and notify the parties.

Filings will still be accepted through the e-filing system.

Hearings in all other civil matters may be held only by telephone. If all parties and lawyers are not able to participate by telephone, the court will reschedule the hearing. Specifically, our office spoke with the Civil case manager this morning and he indicated that all mediations scheduled for this week will be continued and telephonic mediations will be under consideration in the future.

Other DC agencies are closed or working with limited capabilities. Specifically the Office of Administrative Hearings (OAH) has cancelled upcoming hearings. The Rental Accommodations Division (RAD) is closed, but exploring ways to have documents file-stamped. The Rental Housing Commission (RHC) is open, but working from afar.

Battino & Sokolow PLLC remains open, albeit with all employees telecommuting. Do not hesitate to call or email us regarding this changing situation. We will do our best to keep you informed. Please be safe.

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January 13

New DC Landlord Late Fee Law

There is a new law in Washington, DC that affects how much residential landlords can charge their tenants in late fees. The Rental Housing Late Fee Fairness Amendment Act of 2016 is now in effect. The text of the law can be read here: Rental Housing Late Fee Fairness Amendment Act of 2016.

Some highlights of the law include:

• Late fees are limited to 5% of the full amount of rent due “by a tenant.” The phrase “by a tenant” seems to preclude a landlord from charging 5% of the total rent when a portion of the rent is paid by a subsidy. It is unclear what amount a landlord can charge as a late fee in the event of a partial payment.
• The written lease agreement must inform the tenant of the maximum amount of the late fee that may be charged pursuant to the agreement. This could be a very important issue, because no existing leases could possibly contain this language. Landlords should provide each tenant an addendum to satisfy this provision.
• There must be a 5-day grace period before the late fee is applied.
• A landlord cannot charge interest on a late fee.
• A landlord cannot apply future rent payments to late fees. This is a large departure from the accounting that most landlords use, whereby a new payment is applied to the prior balance, including previously-incurred late fees. This could become an accounting burden and accounting software should be updated to comply with this provision.
• A landlord cannot impose more than one late fee for one late payment. This is also a large departure from the accounting that most landlords currently employ, whereby a late fee is charged each month until the tenant reaches a zero balance.
• A landlord cannot evict a tenant on the basis of nonpayment of late fees. This, too, is a big change. Although judges routinely limit late fees for eviction purposes, late fees have always been included in the Trans Lux, or redemption, amount. As of January 8, 2017, the Superior Court of DC, Landlord and Tenant Branch, is rejecting any and all late fees. This is very important, as landlords need to ensure they are not evicting tenants based upon nonpayment of late fees.
• A landlord cannot collect late fees based upon a subsidy’s late payment.

One important aspect of the law is that a landlord’s failure to comply can come with severe penalties. Any housing provider who knowingly or willfully violates this law is liable for the amount the late fees charged exceed the permissible late fees, or treble that amount in the event of bad faith. Landlords can also be fined between $100 and $5,000 for each violation.

The law does allow landlords to issue invoices for unpaid late fees. If the tenant does not pay the late fees, the landlord may deduct from the tenant’s security deposit at the conclusion of the tenancy.

Landlords should certainly reconsider accounting principles in light of these changes, as ledgers that combine all charges may lead to problems down the road. Please contact us if there are any questions about this new law, or to discuss DC Landlord and Tenant and eviction law in general.

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February 13

Tenant Opportunity to Purchase Act: TOPA “Sale” Definition re-analyzed

The Washington City Paper has explored a new Tenant Opportunity to Purchase Act case that is again exploring the definition of a TOPA sale. If you follow TOPA case law, you know that throughout the years the definition of “sale” has been hotly litigated and the statute defining “sale” has been amended. A new case argues that when shares of an entity owner are transferred, and the entity owns a portfolio of properties, it does not constitute a sale for purposes of TOPA. The City Paper’s analysis may overstate the application of this effort, but it nonetheless shows that there remain new creative ways to avoid arduous compliance with TOPA. The article can be found here.

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