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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Check out our latest blog posts!

Saturday
Sep162017

The New Late Fee Law in DC: What Landlords Need to Know 

On December 8, 2016 the "Rental Housing Late Fee Fairness Amendment Act of 2016" (D.C. Law 21-172) took effect. It's taken some time to figure out what the new law means for landlords in practice. But it added a number of rules for DC landlords about how, when, and how much in late fees you can charge your tenants. Here’s are the five things you need to know to avoid getting into trouble and to take advantage of any remaining rights you have to charge late fees. 

1) Late fees are limited to 5% of the rent. You therefore want to amend future leases to charge 5%. Not a fixed amount. You might think but if I just figure out what 5% is, isn't that just as good? No! When you later increase the rent and your tenant doesn't sign a new lease, which they aren't required to do in DC, you will be charging less than 5%. If your lease doesn't specific a late fee you can't charge it at all. The 5% law brings DC into line with Maryland law, which also caps late fees at 5%. 

2) Late fees can't be charged until after the 5th of the month. 

3) If the tenant has a subsidy or voucher you can only charge the late fee on their portion. So if they pay only $50 per month, you can only charge 5% of $50. However, the lease may specify they pay 5% of the rent, because their potion can change at any time. 

4) If your tenant fails to pay rent, they don't have to pay late fees to avoid eviction. Only rent anod court costs are part of the amount required to be paid to avoid eviction. This rule essentially means you either need to get a money judgment or go to small claims to collect late fees. This has also changed the way some court forms must be filled out and they will be rejected if not properly filled out, so be careful if you aren't sure what to do. It can cost you extra weeks in court and therefore extra months of lost rent if your forms are rejected. 

5) It is still worth charging late fees. Some landlords become so disgusted with the rules they give up even charging late fees. But having an incentive to pay on time in the lease is still important and the law could always change again. Having a 5% cap also stops judges who weren't allowing any late fees on money judgments and may make it worthwhile to get personal service when possible. 

If you have questions or need assistance with a DC landlord tenant matter please contact us to set up a consultation.  

Wednesday
Nov302016

Upstairs Downstairs? What's with the new DC Landlord Tenant courtroom?

If you've been to DC landlord and tenant court lately you may have noticed some changes. I talked about the changes a year ago in some detail in Changes Coming in 2016 but here I will focus on one big change and how is is working. The biggest change is the new fully functioning "upstairs" courtroom. This courtroom is now reserved for motions, status hearings, and a few other types of hearings. Trials and initial returns are still held downstairs in the courtroom across from the clerk's office. The idea is to make things run more smoothly and get people out of landlord tenant court faster. Does it work? Sometimes. If you have an initial hearing you could still be there several hours. Your tenant could go to the Resource Center or to talk to a law student. If you have a trial you should still expect to spend ALL DAY there. If you have a motion in the upstairs courtroom you may or may not do better. Motions still take time. Often the hearings drag on. Sometimes you will be out more quickly, sometimes not. If you and the opposing party are both there and both sign in on the sheet in the upstairs courtroom you stand a better chance of getting out quickly. But there are no guarantees. The less pressure you put on yourself to be done, the better your negotiating position. If you really have to leave the other side may use that to pressure you. So be ready for the long haul. 

Tuesday
Sep272016

Should I Sue for Nonpayment of Rent? 

DC landlords often contact me when they have a tenant who isn't paying rent. Sometimes the tenant hasn't paid rent in months or even years. Sometimes the tenant is making occasional partial payments. Often a landlord has heard rumors or read news stories about how hard it is to evict someone in DC. They don't want to spend more money and time on a process they could lose. Let's clear up some misconceptions by addressing some of my most frequently asked questions. 

1) Will a nonpayment case take forever? Is it even worth it? 

Nonpayment cases in DC take time. There is no getting around that. Some of them take a long time. DC Courts are sometimes inefficient and aren't running on the kind of budgets they need to serve our city. BUT let's look at the alternatives. If you don't sue for nonpayment the tenant continues not to pay you. It's just human nature. If you went to work and weren't paid and didn't bring it up week after week, year after year your employer might not notice or it might just fall to the bottom of the list. After all, if your money doesn't matter to you who else will care? There are steps you can take to minimize your risk in a nonpayment case, such as inspecting the property before you file and making sure everything is in working order, having a proper rental licence for the property, and maintaining or cleaning up your records of what is due. 

2) But I don't have a rental licence. Should I avoid filing? 

If you don't have a licence you still have the right to sue for nonpayment of rent. Talk to a lawyer who can help you decide the best course of action to get the licence or just file the suit. 

3) I don't have a lease with the tenant. 

That's ok. If you have established the amount of rent through emails or texts or the tenant paid the rent for a period of time and then stopped you will have the ability to prove the rent amount due. You don't have a basis for late fees. The important issue here is did this person EVER pay you? If not they might not be a tenant and you may have easier ways to evict them. Talk to an attorney about your options.  

4) I don't have the time to go to court/I live far away from DC. 

An attorney can go to landlord & tenant court for you on nine out of ten hearings. A property manager can handle rent collection for you going forward if that isn't what you want to do. Don't let a bad tenant take advantage of you because you are living far away. 

Monday
Sep122016

What is a DC Landlord & Tenant Accounting Hearing? 

One of the hardest things to deal with as a DC landlord trying to navigate the court system is the lingo. A judge or an attorney for the tenant might suggest a hearing that you aren't familiar with and it seems daunting. One of those is an accounting hearing. Here is the short and sweet on accounting hearings. Sometimes the landlord and the tenant don't disagree about things like if the house is in good condition or what the monthly rent should be, just if the rent was paid. In those cases a trial isn't always required. In an accounting the landlord brings the ledger and any other payment records showing what the tenant paid or didn't pay and the tenant brings receipts, cancelled checks, money order stubs, anything that can show what was paid. The landlord and the tenant sit down and compare their records and try to come up with an amount they agree is due. This process can be helpful but you have to bring all your records to court. 

Wednesday
Feb102016

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