New Eviction Legislation - August 12, 2021 - Legal Aid Society of the District of ...
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New Eviction Legislation
August 12, 20212 How Did We Get Here?
3
The End of the Public Health Emergency
• For the May 18th legislative meeting, Chairman Mendelson pushed for
changes to the eviction moratoria; that effort failed
• Mendelson then convened a working group (including some of our
organizations) to discuss legislation to end eviction protections
• Meanwhile, in early July Mayor Bowser informed the Council that she no
longer would extend the public health emergency
▫ Emergency and temporary legislation has tied tenant protections to the
public health emergency (PHE), March 11, 2020 to July 25, 2021
▫ This forced the Council to move forward with replacement provisions
• On July 13, the Council enacted the Public Emergency Extension and
Eviction and Utility Moratorium Phasing Emergency Act of 2021 (B24-345,
temporary version B24-346 also pending approval)
▫ The legislation winds down the eviction moratorium and other tenant
protections4 What Are the Key Dates?
5
Eviction Process Steps and Other Landlord Start Dates in New Emergency Legislation
Actions
Landlords can start actual evictions July 26, 2021, after providing a 21-day or 30-day
notice
Landlords can serve new pre-court notices for “public May 3, 2021
safety” exception eviction cases
Landlords can serve new pre-court notices for July 24, 2021
“property damage” exception eviction cases
Landlords can serve new past rent due notices for July 24, 2021
nonpayment of rent eviction cases
Landlords can serve new pre-court notices for lease September 26, 2021
violations and other eviction cases
Landlords can file new eviction cases for “public May 3, 2021, following required notice
safety” exception
Landlords can file new eviction cases for “property July 24, 2021, following required notice
damage” exception
Landlords can file new nonpayment of rent evicti October 12, 2021, following required notice and
on cases other pre-filing requirements
Landlords can file new lease violation and other January 1, 2022, following required notice
eviction cases
Landlords can charge late fees again August 5, 2021
Landlords can serve rent increase notices December 31, 2021
Deadlines under Rental Housing Act and Rental August 24, 2021*
Housing Conversion & Sale Act begin running
*Based on PHE ending July 25 at 12:01 a.m. and assuming therefore that July 25 is considered a day after the end of PHE.6 Actual Evictions, Eviction Notices, and New Eviction Case Filings
7
Actual Evictions (42—3505.01(k) + -3505.01a)
• Landlords were prohibited from evicting tenants during the PHE
▫ This protection was not extended and ended with the PHE
▫ Owners have never been prohibited from evicting non-tenants (e.g.,
foreclosed homeowners or alleged “squatters”), though the Court
ultimately set up a process requiring Court approval/order
▫ As a practical matter, no actual evictions have proceeded to date
• Effective July 26, 2021, actual evictions can proceed
▫ A landlord first must schedule the date with the U.S. Marshals Service
▫ For evictions that had been scheduled before the PHE, the landlord
must provide the tenant with a 30-day notice of the eviction date
▫ For all other evictions, the landlord must provide the tenant with a 21-
day notice of the eviction date
▫ For judgments entered prior to March 18, 2020, the landlord also must
provide an updated, current balance (Court's General Order 8/6/21)8
Actual Evictions (cont.)
• On August 3, 2021, the CDC reinstated a nationwide eviction
moratorium for qualifying jurisdictions
▫ The moratorium applies in jurisdictions with substantial or high
community spread of COVID-19
▫ The CDC has an online map indicating which jurisdictions meet this
standard; DC currently qualifies
• The moratorium prohibits actual evictions
▫ While “evict” and “eviction” are defined broadly, the government has
argued for a limited interpretation that only applies to actual evictions
• The moratorium generally applies to nonpayment of rent cases
▫ The order specifically excludes criminal activity, health/safety threats,
property damage, and other lease violations unrelated to payment of
rent/fees; other cases arguably are not excluded but tough argument9
Actual Evictions (cont.)
• To qualify, a tenant must
▫ Have used best efforts to obtain government rental or housing
assistance
▫ Have 2020 or expected 2021 income below $99k ($198k for couples),
or not be required to report any income to the IRS, or have received a
stimulus payment
▫ Be unable to pay full rent due to substantial loss of income, lost job or
lower hours or wages, or extraordinary medical expenses
▫ Be using best efforts to make as close to a full rent payment as possible
▫ Likely face homelessness or shared/congregate living if evicted
• A tenant must provide a declaration to their landlord with these
facts
▫ CDC has posted a declaration form online (available in multiple
languages)
• Because of the required attestations, tenants not at imminent risk of
eviction likely should not complete and submit a declaration form10
Eviction Notices (42-3505.01(a-1), (b-1),(q),(q-1))
• Landlords had been prohibited from sending eviction notices from
October 14, 2020 through the PHE plus 60 days
▫ Owners have never been prohibited from sending eviction notices to
non-tenants
▫ Effective May 3, 2021, landlords were allowed to send notices for
certain public safety lease violations under the Eviction Moratorium
Public Safety Exception Emergency Amendment Act of 2021
• The prior prohibition was revised and replaced with new timelines
that depend on the type of eviction case:
▫ Effective July 24, 2021, landlords can send notices for nonpayment of
rent and certain lease violations involving significant property damage
▫ Effective September 26, 2021, landlords can send notices for all other
lease violations and other grounds for eviction.11
Eviction Notices (cont.)
• All* eviction notices must state prominently and at the beginning:
▫ That the tenant does not have to vacate the rental unit until and unless
a court orders the tenant to do so;
▫ That the tenant has the right to dispute the landlord's allegations
through the court process and remain in the rental unit until the court
reaches a decision on the matter;
▫ Include the phone numbers of the Office of the Tenant Advocate and
the Landlord Tenant Legal Assistance Network and state that both
resources may provide or may refer the tenant to free legal services for
tenants facing eviction
▫ For cases involving alleged violations of obligations of tenancy, that the
tenant has the right to correct or cease the alleged violation of tenancy
and remain in the rental unit
*This provision is intended to apply to all notices but references cases "filed under this
subsection" and could be interpreted more narrowly12
Eviction Notices (cont.)
• For nonpayment of rent cases, the “past due rent notice” must include
specific language included in the law or “substantively similar language”
• Past due rent notices must
▫ List the amount due and attach a ledger showing charges and payments
for the period of delinquency
▫ Advise the tenant they have the right to stay if they pay, the right to
defend themself in court, and that only a court can order their eviction,
and include the OTA and LTLAN phone numbers
▫ Advise the tenant about STAY DC and ERAP, including that the
landlord has started a STAY DC application on their behalf
▫ Advise the tenant that the landlord can file a court case if the tenant (1)
fails to complete a STAY DC application within 60 days, or (2) is denied
STAY DC for all or part of the amount due and does not enter a
payment plan within 14 days, or (3) misses payments under a payment
plan totaling at least $600 or two months’ rent, whichever is greater13
Eviction Notices (cont.)
• For nonpayment of rent cases, note that the prior requirement for a
30-day notice to quit and notice of claim (previously found in 42-
3505.01(a) and –3505.01(a-1)) no longer apply
• Other requirements apply to all* notices
▫ If the landlord knows the tenant speaks a primary language other than
English or Spanish covered by the Language Access Act, the notice
must be provided in that language
▫ If the notice is served by posting, the landlord must provide a time-
stamped photograph of the service by posting to the Court
*Not subject to the caveat above14
Eviction Case Filings (16-1501)
• Owners had been prohibited from filing a new complaint for possession in
the Landlord & Tenant Branch during the PHE plus 60 days
▫ This generally applies to all eviction cases, including for non-tenants
▫ Landlords have argued it does not apply to drug haven cases because of
specific statutory language in 42-3602; this remains unresolved
▫ Effective May 3, 2021, landlords were allowed to file new cases for
certain public safety lease violations under the Eviction Moratorium
Public Safety Exception Emergency Amendment Act of 2021
• The prior prohibition was revised and replaced with new timelines that
depend on the type of eviction case:
▫ July 24, 2021 - landlords can file cases for significant property damage
lease violations
▫ October 12, 2021 - landlords can file cases for nonpayment of rent
▫ January 1, 2022 – landlords can file all other types of cases15
Eviction Case Filings (cont.)
• When filing a case for nonpayment, landlord must document that it
complied with pre-filing requirements:
▫ Landlord applied for or initiated application for tenant for STAY DC
▫ Tenant has been notified in writing of pending STAY DC application
▫ Landlord is eligible to file a case under 42-3505.01(b-1)
● Past due rent is $600 or more and
● Tenant did not submit emergency rental assistance application within 60
days of receiving past due rent notice or
● Tenant’s application was denied or was approved but left a balance of
$600 or more and parties did not enter payment plan within 14 days, or
● Tenant with payment plan is at least $600 or two months’ behind,
whichever is greater
▫ Tenant has been served with a notice that meets requirements in 42-
3505.01(b-1) and all other requirements of District law
● The latter is a catch-all phrase intended to capture any other requirements16
Eviction Case Filings (cont.)
• Tenants have an affirmative defense requiring dismissal of a
nonpayment case if they can establish through testimony that:
▫ Landlord did not pursue rental assistance timely or in good faith;
▫ Tenant did not receive notice of rental assistance application;
▫ Landlord did not provide notice that meets requirements of § 42-
3505.01(b-1)(2) or other requirements of District law;
▫ Tenant or their authorized representative submitted emergency rental
assistance application prior to or during 60 days after receiving past
due rent notice and that application is still pending, approved and
awaiting payment, or under appeal;
▫ Landlord has not met the requirements of § 42-3505.01(b-1)(1); or
▫ For complaints that involve rent arrears accrued since March 11, 2020,
landlord did not offer or negotiate payment plan in good faith pursuant
to § 42-3281 at any time since March 11, 202017
Eviction Case Filings (cont.)
• In addition to these affirmative defenses:
▫ No tenant shall be evicted from a rental unit based on a complaint filed
under this subsection unless the court determines by a preponderance
of the evidence that the alleged violation of an obligation of tenancy
meets all of the requirements of this subsection.
● This subsection applies to complaints for public safety or significant
property damage lease violations or nonpayment of rent filed before
January 1, 2022
● Note this language parallels the drug haven statute and should require an
ex parte proof hearing even if the tenant defaults
▫ At the initial hearing for any complaint for non-payment of rent, if the
complaint does not allege sufficient facts or the person aggrieved has
not produced sufficient documentation to meet all pre-filing
requirements under District law, the Court shall dismiss the complaint.
● This section also should apply even if the tenant defaults18
Eviction Case Filings (cont.)
• New cases also must meet other restrictions:
▫ For nonpayment of rent, the amount due must be $600 or more
▫ For all cases, landlord must have a basic business license for rental
housing and have a valid registration or claim of exemption under the
rent stabilization program
● These requirements are waived if the landlord was unable to obtain or
renew a rental housing basic business license based on extenuating
circumstances
● This exception is based on landlords alleging that DCRA is not
issuing provisional (or permanent) BBLs if they cannot inspect the unit, even if
the reason is non-cooperation by a current tenant/occupant
● Both requirements may be waived even though exception is for BBL
▫ Landlord cannot file based on consistent late payment of rent
occurring between March 11, 2020 and 60 days after the PHE
(September 23, 2021)19
Eviction Case Filings (cont.)
• Landlords also must comply with new service requirements for
all complaints:
▫ The complaint must be served at least 30 days before the initial
hearing, excluding Sundays and legal holidays and days during the
PHE
● But note: a complaint may be served during the PHE if it relates to a public
safety or significant property damage lease violation or nonpayment of
rent and is filed before January 1, 2022
▫ If a summons is served by posting, the landlord must submit a time-
stamped photograph of the service by posting to the Court20
"Public Safety" Exception (16-1501, 42-
3505.01(k)
• Three basic requirements:
▫ The tenant’s continuing presence at the housing accommodation where
the tenant resides presents a current and substantial threat to the health
and safety of tenants, on-site agents, or employees of the owners of the
housing accommodation, or household members or guests of other
tenants, or residents of immediately adjacent properties;
● Note: underlined language is new
▫ Because the tenant has violated an obligation of tenancy; and
▫ By engaging in an unlawful possession of a firearm, threats or acts of
violence, or assault
• Conduct is defined with reference to DC Criminal Code:
▫ “Act of violence” = “crime of violence” D.C. Code § 23-1331(4);
▫ “Assault” = D.C. Code § 22-404;
▫ “Threat” = D.C. Code § 22-407;
▫ “Unlawful possession of a firearm” = D.C. Code § 22- 4503.21
"Public Safety" Exception (cont.)
• A few notes on limitations:
▫ Conduct must be engaged in by tenant, not a household member or guest
▫ Tenant is a current, substantial threat; incorporate case law on the
present tense from the drug haven statute
• Eviction notices must meet the requirements outlined above
▫ Originally, all notices to vacate also had to be sent to the Office of the
Tenant Advocate; that requirement is gone as of July 24, 2021
• Prior limits on actual evictions carried out under this “public safety”
exception also likely do not apply beyond the PHE
▫ Those requirements also were weakened, so that any family must be
offered assistance and resources that support the coordination or
continuation of youth education, social services, and other resources,
and any person with behavioral, emotional, or mental health issues
must be offered behavioral health or housing counseling services and
alternative housing arrangements, before the eviction is carried out22
“Significant Property Damage” Exception
(16-1501)
• Significant property damage is defined as:
▫ Large holes in the walls of the unit that cannot be repaired with plaster
and paint, destruction of major building systems such as electric or
plumbing, destruction of appliances such as ovens, refrigerators or dish
washing machines in the unit, or damage to large areas of flooring such
that the housing provider will have to replace the damaged flooring
• Tenants have an affirmative defense requiring dismissal if they can
establish with substantial evidence that:
▫ The housing provider willfully or negligently contributed to the
significant damage of the unit, premises, building, or property that are
the subject of the complaint23 Late Fees, Rent Increases, Tolling of Tenant Deadlines, & Tenant Payment Plans
24
Late Fees (42-3505.31)
• Landlords have been prohibited from charging late fees to tenants
for any month during the PHE
▫ This protection is not being extended and ended with the PHE
▫ Effective August 2021, landlords can begin charging late fees to
tenants.25
Rent Increases (42-3509.04)
• Landlords have been prohibited from issuing rent increase notices
to tenants during the PHE
▫ This protection is being extended until December 31, 2021.
▫ Effective December 31, 2021, landlords can begin issuing rent increase
notices to tenants.
• There may be some questions about the scope of this protection
▫ The current protection is in section 904 of the Rental Housing Act,
which applies to all tenants, not just those in rent-stabilized housing
▫ However, the language is focused on rent increase notices, i.e. likely
only applies to tenants who have the right to receive a notice first: “No
housing provider may issue a rent increase notice to any residential
tenant prior to December 31, 2021.”
▫ A prior provision in section 904 requires a 30-day notice for increases
under the Rental Housing Act and prior versions of the Act, but this
likely only applies to rent stabilization
▫ A tenant’s lease also can require a prior notice of a rent increase26 Tolling of Tenant Deadlines (42-3405.10b, 42- 3509.11) • Deadlines for tenants and tenant organizations to exercise rights under the Rental Housing Conversion & Sale Act and the Rental Housing Act have been tolled during the PHE and for 30 days after ▫ Tolling is not being extended and continues through August 24, 2021
27
Tenant Payment Plans (42-3281)
• Landlords have been required to offer payment plans meeting
certain requirements to tenants who owe rent due during the PHE
and for one year after
▫ These provisions have not been changed and will remain in effect
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