Emilie Fairbanks, Esq.

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Friday
Aug122011

DCRA Proactive Inspections Schedule

About a year ago, DCRA started “proactive inspections” of residential units in the District of Columbia.  All this really means is that they are doing inspections no one specifically requested.  They post the list of inspections to be done each month on their website here: http://www.dcra.dc.gov/DC/DCRA/Inspections/Proactive+Inspections

 While the landlord should get notice as well, it is worth keeping on eye on the list each month to make certain your property isn’t on the list and your notice was lost in the mail.

It is unclear how these inspections are going, or if they are even occurring as scheduled.  If you have any experience with the proactive inspection process, as either a landlord or a tenant, I would love to hear about it.  Send me an email at efairbanks@efairbankslaw.com with Proactive Inspection Story in the subject line.  

Tuesday
Aug092011

DC Residential Leases: Four Provisions Every Landlord Should Include

If you are thinking of renting out a space in DC there are many things to consider.  You should register with the Department of Consumer and Regulatory Affairs and do all of the required licensing; you should screen your potential tenants through the local court systems for any civil judgments or evictions, as well as doing a credit check; you should set up a system for keeping rent ledgers; you should document the conditions of your property with photos and possibly an inspection by a contractor.  This is not an exhaustive list.  However, if you do all of these things and use a lease form you purchased at an office supply store or online, you could potentially negate much of the hard work you have done to protect your interests. 

I recommend you have a lease drafted for your specific situation by an attorney familiar with DC landlord/tenant law and familiar with your property.  For all of you who won’t do that, or if you had an attorney draft your lease and you want to see if they are really familiar with DC law, here are four things every DC residential lease should include.  None of them are intended to “trick” tenants.  They are basic provisions that conform to the quirks of DC law or are just things that have come up often in my practice.  Do not assume a “DC form lease” will include any of these things.  Most DC form lease are just Maryland leases with a new title, and they do not address the important issues specific to DC law.  

 This article is not intended to write your lease for you and it does not include sample provisions because each situation is too unique, but it is a checklist for things you need to include. 

1) Waiver of Notice to Quit for Non-Payment of Rent

This is the big one.  If you do nothing else, make sure to include a waiver of notice to quit in your lease.  Any DC L&T attorney will scan a lease for the waiver as soon as it is handed to them and most of the time it is the only provision discussed in court.  What is it?  The tenant is waiving their right to a thirty-day notice to cure or quit if they fail to pay rent.  Without this provision, you must give them thirty days to pay their rent after they are late.  Incidentally, HUD form leases do not include a waiver.  The best practice is to make this a separate provision; I have seen it thrown in everywhere and anywhere.  If you do not have a waiver and your tenant fails to pay rent, you must give them a thirty-day notice that conforms to the rules for all other thirty-day notices in DC law. 

2) Bar on Unauthorized Occupants and Subtenants

As this blog has previously discussed, a DC tenant is a tenant for life.  You want to have control over who your tenants are and who lives in your property.  Many multistate or generic leases will include some sort of ban on unauthorized subtenants, but it is usually not strong enough for DC.  A DC lease should list the persons permitted to live in the unit, state that no one else is permitted to live in the unit, and ban any subtenants.  

3) Criminal Activity/Drug Activity Ban

You should include a statement that any criminal activity or drug activity on or near the property is grounds for eviction.  This provision may or may not be useful to you, but if you have subsidized tenants it is required and should follow the language of the Federal One Strike provision for drug activity and also include separate language for criminal activity.  A subsidized tenant can be evicted for many types of criminal activity with a notice to quit, no cure provision required.  The government can also come after you for failing to evict or try to evict tenants who create a drug haven, so having this language can help you protect your property. 

4) Provision that Tenants Must Promptly Report all Defects

            This is not always useful for enforcement, but it is important to set the rules early in the tenancy that any problems should be reported immediately.  It also helps to attach a signed statement of how to report problems so that when a tenant says they did not know how to report that their sink was leaking, you can show you provided them with the information.  This is only useful if you are responsive when tenants call and if you fix problems when they occur.  

When you sign a residential lease in DC the provisions can be very hard to change.  The tenant has the right to stay in the property and the landlord has very few ways to make them sign a new lease, so it pays to be careful and specific about your lease.  Apart from choosing tenants carefully, which I cannot stress enough, careful lease drafting is your best protection and there is very little any attorney can do to get around a poorly written lease. 

 

Monday
Apr182011

Saving DC Homes from Foreclosure, or Making it Impossible to Get a Mortgage

The RealtyTrac Forclosure report for the first quarter of 2011 says that there were 63 foreclosures in the District of Columbia, an 84% decrease from the previous quarter and an 87% decrease from the same quarter the prior year. Some of you are thinking, wow, that is interesting.  Most are thinking, why do I care?  And almost all of you are thinking, isn't that good news?  It is interesting, it isn't good news, and if you are a homeowner, renter, landlord, or desire to take out a mortgage in DC, you do care.  

The Saving DC Homes from Foreclosure Emergency Amendment Act of 2010, stopped DC foreclosures when it became effective on November 17, 2010.  Unfortunately, almost no one had read or understood what this 41 page bill said or did.  The comment period for the rules created by the bill ended today and we are all about to find out what it means.  We do know that the new law requires that lenders send out a notice to borrowers they wish to foreclose upon letting them know they have the opportunity to mediate their dispute.  

The law requires the notice give disclosures that will rival the paperwork borrowers received when they purchased their home, so it seems unlikely anyone will read or understand much of it, but somewhere in there it gives them the opportunity to mediate.  Plus a self addressed stamped envelope they can return saying they want to mediate. They return this to the DC Government, who then schedules the mediation and tells the lender, a process that seems likley to be full of missed notices and scheduling errors, but I could be wrong.  In a perfect world then everyone sits down and mediates "in good faith."   Actually, the law requires that the lender mediate in good faith.  

The borrower then needs to get a cerificate showing that they mediated in good faith and failed to come to an agreement and they must sign an affidavit that says, among other things, that they would not be financially better off making an agreement.  Given that many of these are very new thirty year mortgages in default and unless you have a crystal ball telling you if the housing market or the job market or both will come back in the next couple of years I am not sure how anyone can say for sure they would be or would not be better off making an agreement, but that is the law.  

 

This is not everything the law requires, not even close.  If you are a lender or a borrower about to try to navigate the new DC foreclosure system, please don't try this at home.  Get help.  Lenders will not successfully get their property back without the assistance of counsel that knows every detail of this new law, because one mistake and you will be in DC Court for a very long time.  Borrowers may have an opportunity with this law but you are unlikely to be successful taking advantage of the provisions without counsel.  No one knows what any of this really means, except that it almost certainly means it will be harder and more expensive to get a mortgage in DC and all the foreclosures that have been bottled up in DC are about to come crashing down.  And any of us who works or lives in this system is in for a bumpy ride.   

Friday
Apr082011

Judge's Pet: DC Courthouse Rats

I guess rats can't be ordered out of buildings after all.  Check out the article in today's Washington Post about rats in the DC Superior Court Building.

 http://www.washingtonpost.com/local/dc-courthouse-has-a-rodent-problem/2011/04/07/AFNqSbwC_story.html

For all the landlords our there trying to rid their buildings of rats and tenants living with them, at least you know that no one is immune.  In reality, you can't get rid of every rodent when you live in a city with such a widespread problem, but there are certainly some things landlords and tenants can do to keep things under control.

 Tenants:

 

  • Keep food put away and keep food like cereal, flour, rice, etc. in plastic containers.  
  • Do dishes immediately and take out your trash daily.  
  • Keep clutter to a minimum, rodents like to hide and nest in things you never use.
  • Inform your landlord immediately if you see evidence of rodents.  
  • Cooperate with your landlord's efforts to exterminate even when you don't see evidence of rodents.  

 

Landlords:

 

  • Have a preventative extermination schedule and make sure tenants know how to get on your schedule. 
  • Inspect every unit annually to be aware of housekeeping problems.
  • Make your expectations about housekeeping and exterminations explicit when leases are signed.  
  • Follow the advice of your extermination professional and share that advice with your tenants. 

Even judges have to deal with rats, so if you are a tenant keep that mouse you see in your kitchen late at night in perspective and work together with your landlord to resolve the problem.  

 

Thursday
Mar312011

Top Ten Legal Pitfalls of Being a DC Landlord

This is just a quick overview, and because I am a lawyer I will say again, your situation is unique, it is not individual legal advice, just information.

1) Once a landlord, always a landlord. With some notable exceptions that I will discuss in more depth in later posts, if you rent someone an apartment in DC and they comply with the lease, and pay the rent, that lease is good until they move or die, no matter what it says about the end date. This is a "perpetual tenancy" and is the right of residential tenants that gets many landlords in trouble.

2) You must give a "legally sufficient" thirty day notice to cure or quit before you can file for possession based on a lease violation. It must be specific about what the tenant dud to violate the lease and it must tell them how to cure the violation. If they cure, a concept I will discuss at greater length but can mean many things, you cannot file suit. Again, notable exceptions, like the Federal Drug Related Evictions Act, exist, but they are rare.

3) The notice to cure or quit must be in English and Spanish. Period.

4) If you want to rent residential property in DC your lease should contain a waiver of notice to quit for failure to pay rent. Most national lease forms don't. It is a storage quirk of DC landlord/tenant law. If your lease doesn't have a waiver of notice to quit for nonpayment of rent, you must serve a thirty day notice as described in number 2 and 3 before filing for possession because your tenant has stopped paying rent. Wipe that look of horror off your face, yes, they will get even more behind while you go through this process.

5) Tenants can demand a jury trial no matter how little they owe or what the lease violation is. Your case will be certified to the Civil Division, a process I will explain fully later, but for now you just need to know it is often very long. Perhaps up to a year. During this time, the lease violation may very well continue and in nonpayment of rent cases you won't be getting any rent, some, hopefully all of the monthly rent going forward from the first court date, will be paid into the court escrow.

6) In order to get the money paid into escrow, you must request a protective order. If the tenant says they have problems with the house or apartment the court will set another hearing to determine what the amount of the rent should be. That hearing is like a mini trial on the conditions of the apartment at the time of the hearing. Be prepared.

7) You are only entitled to a protective order in cases that are about nonpayment of rent. However, if you sue a tenant who you have already sued or given a notice for another lease violation for nonpayment you could loose your other case. This is a hyper technical legal issue, but if you have both a tenant who has stopped paying rent and is committing other serious lease violations, this is a good time to talk to an experienced landlord/tenant attorney so you don't waste time and money later. If you have sued on both issues, you can try using the magic words: "Your Honor, I would like the tenant to agree that they will pay rent to me going forward or pay a protective order and that acceptance of rent does not constitute a waiver of my other claims." But the judge is always going to say something else and that is when you will really want to phone a friend. My advice in these situations is to start with the legal advice.

8) Tenants can file tenant petitions with the DCRA and request a "Drayton Stay" in your landlord/tenant case until the agency decides their tenant petition, which can take years. If they filed certain types of petitions, they are legally entitled to the stay and you could be in limbo for a long time.

9) In nonpayment cases, the tenant can counterclaim for three years of back rent if they claim the conditions of the unit violated the DC Housing Code. It is possible to sue a tenant for nonpayment of rent and end up owing them money.

10) There is always something new. I love this area of the law because it is complex, the DC Court of Appeals issues many landlord/tenant decisions, so the law is always changing, it takes place in DC Superior Court, Housing Court, DCRA, and the court rules committee, who have changed many of the filing procedures recently. Landlords hate this and I don't blame them. Trying to protect your property in several places at once with conflicting, constantly changing rules is incredibly stressful, making change and complexity the top legal pitfalls for DC landlords.

I hope this provided you with useful information. Coming topics: Trans-Lux, Bell Hearings, working with process severs, the Resource Center, and choosing an L&T attorney.