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Entries in Protective Order (2)

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

Sunday
Nov062011

Top Five Things to Know About DC Landlord Tenant Court Protective Orders

Parties who come to landlord/tenant court in DC are often in for a long process.  Therefore, in non-payment cases, either party can ask that the tenant pay the rent into the court registry instead of directly to the landlord for duration of the case.   This is called a protective order, and the idea is to protect both sides by allowing the court to hold the money while the case is decided.  In reality, just like everything else in DC landlord/tenant court, it is much more complicated than that.  So what do you need to know about protective orders?  Here are the top five things to remember. 

1)   You can only get a protective order in a case about non-payment of rent.  There are a few, very limited exceptions to this, but this is the basic rule.  If the case is about a lease violation, no protective order.  However, unless a notice of lease violation is carefully written, the landlord accepting or demanding rent could be a defense to the lease violation case.  Therefore, landlords need to ask the court at the first hearing to put on the record that if the tenant continues to pay them rent, it will not be a waiver of the lease violation.  This can be a difficult issue to deal with, and if you have tenant you have sued for a lease violation who has stopped paying rent, I would recommend getting legal advice before doing anything else.  

2)   Protective orders go from the date of the initial return forward, the tenant never has to pay back rent into the registry.  This is another good reason why landlords should act quickly when a tenant stops paying rent.  If you are a landlord, you are entitled to rent from the day of the initial return hearing forward, but no judge is going to sit there and figure out how much your rent is per day, so before you get to court, calculate the amount of the protective order you intend to request.  So if your court date is November 20th, many judges will just start the protective order in December, unless you are prepared to explain to the judge that you want the rent for the last ten days of November and you have calculated exactly how much that is. 

3)   Protective orders can be reduced because of the conditions of the apartment.   If the tenant says they have Housing Code violations, the judge will normally set a Bell Hearing to determine the amount of the protective order.  Bell Hearings allow both sides to put on evidence about the current conditions of the apartment, and the judge can then set the protective order at an amount they think is fair given the conditions of the apartment.  The protective order amount can alter the outcome of the case, it can pressure one side to settle, it can help determine the legal strategy of both sides, and it will almost certainly help determine how much the landlord can actually recover at the end of the case.  In other words, Bell Hearings are serious.   More on Bell Hearing in a future post!

4)   If the tenant doesn’t pay the protective order, the landlord can file a motion for sanctions.  Many landlords remember when failure to pay a protective order meant they got judgment against the tenant.  Under the current rules, that is rare.  Sanctions are less harsh and the tenant can pay until the time the motion is heard. 

5)   You won’t get a protective order unless you ask for one.  I see pro se landlords all the time who fail to ask for a protective order.  Landlord/tenant court moves fast.  Be prepared with what you want and if the tenant wants to continue the case, you want a protective order.  The judge may push the issue off, but asking preserves your rights and may get you the order right then and there. 

Many landlords come to the first hearing just wanting a judgment.  As discussed in my post on initial hearings a few weeks ago, that may not happen.  Be prepared to ask for what else you want, and usually at the top of that list is a protective order.