On January 20, the D.C. Court of Appeals issued its mandate in Smith v. Greenway Apartments, No. 15-CV-954, an important case Legal Aid had handled at the trial and appellate stages that clarifies when a tenant can make a claim against a landlord alleging housing code violations.
This appeal involved an eviction action alleging nonpayment of rent in January 2015. The landlord’s latest complaint was just one in a series of eviction actions it had filed against Ms. Smith, without success. One of those earlier actions alleged nonpayment of rent during two months in 2012 and was resolved through a consent judgment. Another such action alleged nonpayment of rent during two months in 2013 and was resolved through a judgment by confession. Ms. Smith, like the vast majority of tenants in D.C., did not have counsel in these earlier cases.
When the landlord sued her again in January 2015, however, Ms. Smith enlisted Legal Aid to represent her. With her lawyer’s help, she filed a counterclaim for housing code violations dating back to February 2012 (as far back as allowed by the applicable three-year statute of limitations). For years, Ms. Smith had endured serious housing conditions in her apartment – including mold, leaks, insects, and rodents – but without counsel, had not raised those issues in her prior cases.
The trial court held that the counterclaim could only go back to January 11, 2014 – the date of the most recent judgment, the judgement by confession – because the previous judgments precluded counterclaims for all time periods before they were entered. Having imposed that temporal limitation, the trial court agreed with Ms. Smith that her apartment had serious housing code violations and abated her rent by 50% starting on January 11, 2014.
Greenway did not appeal, but Ms. Smith did. She asserted that the previous judgments had a preclusive effect only with respect to the months specifically at issue in each case (two months in 2012 and two months in 2013) and that she was entitled to an abatement for all other months starting in February 2012.
On December 29, 2016, Court of Appeals issued an opinion agreeing with Ms. Smith. Relying on the Restatement (Second) of Judgments, it held that there are only two circumstances in which the failure to bring a counterclaim precludes a party from bringing that claim later: (1) the counterclaim is “compulsory” by statute or rule, or (2) bringing the claim later would nullify the earlier judgment or impair rights established by that judgment. The Court found neither circumstance present here.
First, the Court of Appeals noted that the applicable court rule states that a tenant in an eviction action “may assert” a counterclaim for housing code violations, which means that the counterclaim is permissive (rather than compulsory). The Court also noted that making such counterclaims permissive fits the regulatory goals of the Landlord and Tenant Branch because it helps “safeguard the summary, expeditious nature of the action for possession due to nonpayment of rent,” while also “avoid[ing] summarily cutting of the right of a tenant to assert specified defenses and counterclaims due to the condition of the premises or the landlord’s actions.”
Second, the Court of Appeals concluded that Ms. Smith’s counterclaim would not nullify the 2012 and 2013 judgments because those judgments involved different “transaction[s]” or “occurrence[s].” These judgments were both in eviction actions addressing the landlord’s “right to possession of the property because of nonpayment of rent in accordance with the lease agreement,” while the counterclaim involved “the condition of [the] apartment unit, in violation of housing code regulations.” The Court agreed that the prior judgments established the landlord’s right to the four months of rent mentioned in the complaints, but “could not be extended to . . . other months.”
This decision allows Ms. Smith to seek thousands of dollars to compensate her for two years of living in a unit with substantial housing code violations. More importantly, the decision ensures that tenants are not penalized for failing to raise housing code violations at the first possible opportunity. This is key because tenants facing eviction in the District are rarely represented by lawyers but landlords almost always are. To be sure, Legal Aid is working with partner organizations to address this inequality at a systemic level – with, for instance, our Housing Right to Counsel Project, which celebrated its one-year anniversary last fall.
But we also recognize that most eviction cases end through a settlement (typically drafted entirely by the landlord’s attorney and simply signed by the tenant) in which the court enters a judgment against the tenant in the form of either a “consent judgment” or a “judgment by confession.” These agreements typically require that the tenant make specified payments in order to stay in the unit, but the landlord’s lawyers have, like the lawyers in this case, argued that these judgments also silently but permanently bar the tenants from complaining about housing code violations for any period of time before they were entered. By rejecting this argument, the Court of Appeals has validated common sense and, in one important respect, prevented the exploitation of unrepresented tenants by landlords’ lawyers.
The Greenway opinion also contains useful statements on a number of additional topics. It reaffirms that when a landlord drafts an eviction complaint, the landlord is required to include in that complaint all months for which it alleges unpaid rent or the landlord waives such claims. The Court also notes that, at one particular point, Ms. Smith stated that there were no housing code violations in her unit, but held that this statement was not dispositive and that the key to her counterclaim was the overall weight of the evidence (which, in this case, was overwhelming and was recited by the Court at length). Finally, and more generally, the Court reminded Superior Court judges of their broad “latitude” in addressing the pleadings of unrepresented litigants – a theme that is vital to equal access to justice for low-income individuals in a variety of circumstances.
Like many appeals Legal Aid handles in the D.C. Court of Appeals, this appeal was briefed and argued by a member of Legal Aid’s staff (Housing Unit Supervising Attorney Beth Mellen Harrison) with assistance from Legal Aid’s appellate arm, the Barbara McDowell Appellate Advocacy Project.