In two new pieces of proposed legislation, the D.C. Council is seeking to balance the rights of landlords and tenants in the District. Both bills have merit and seek to address different disparities in landlord-tenant rights in D.C. In tandem, the Expanding Access to Justice Act of 2017 and TOPA Accessory Dwelling Unit Act of 2017 would reform specific rights of landlords and tenants in Washington, D.C.
Expanding Access to Justice Act of 2017
While about 90% of landlords have representation in landlord-tenant court, fewer than 10% of tenants have lawyers. The Expanding Access to Justice Act seeks more than to simply prevent homelessness. It also seeks to ameliorate the stark legal disparities between attorney-represented landlords and pro se tenants.
Without attorneys, tenants can miss important deadlines, misunderstand documents and procedures, and make harmful decisions without being fully informed of their rights, and in some instances lose the case even when the eviction being sought is without merit.
— Councilmember Kenyan R. McDuffie (D – Ward 5)
The Expanding Access to Justice Act would provide free legal counsel to low-income tenants facing eviction. To qualify, tenants must have income of 200% or below of the federal poverty line. The D.C. Bar Foundation would manage the grant program.
The Act also represents “a small part of a larger national trend called ‘civil Gideon,’ a nod to the . . . right to counsel for criminal defendants.” More and more municipalities are beginning to recognize a right to legal counsel in civil cases.
The bill has its critics. Some have pointed out that the eviction process already takes a minimum of three months, but is usually longer. Also, evictions usually can take place only from March to November. The bill’s detractors believe the bill may only delay even further evictions that are otherwise cut-and-dry.
The TOPA Accessory Dwelling Unit Act of 2017
Balancing the right of tenants to legal counsel, the D.C. Council also has pending on its docket the TOPA Accessory Dwelling Unit Act of 2016. The Tenant Opportunity to Purchase Act of 1980 (or “TOPA”) created a tenant’s “right of first refusal.” Tenants in DC have the opportunity to match an offer that the owner is considering when selling a property.
The TOPA Accessory Dwelling Unit Act would exempt owner-occupied, single family homes with accessory dwelling units from the city’s Tenant Opportunity to Purchase Act. Because TOPA is so tenant-friendly, the bill is seen as shifting some balance back to landlords during the property sale and concomitant eviction process.
In single-family homes with one accessory dwelling unit, some tenants have abused the spirit of the law by delaying the sale of the property for up to 6 months and demanding large amounts of money from the owner in exchange for not exercising the TOPA law.
— Councilmember Anita Bonds (D – Ward 5)
The Act seeks to address the used of TOPA as a sword by a “growing cottage industry of TOPA lawyers.” Savvy tenants know that they can invoke TOPA and lengthen their tenancy, or even hold out for a TOPA cash-for-keys-like agreement. Very few TOPA offers result in actual tenant purchases.
The Landlord-Tenant Balancing Act
Taken together, the D.C. Council is apparently seeking to balance landlord-tenant rights. The Expanding Access to Justice Act would protect under-represented tenants from landlords seeking unlawful or streamlined evictions. And the TOPA Accessory Dwelling Unit Act of 2016 would protect landlords from game-playing tenants. Both acts have merit, and both should pass with broad support.