Pro Se Tenants to Benefit After Legal Aid Appellate Victory
DC Court of Appeals
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Christian Huebner, Sidley Austin LLP Loaned Associate

Christian Huebner, Sidley Austin LLP Loaned Associate

Legal Aid’s Barbara McDowell Appellate Advocacy Project won a major appeal last week for a tenant in a decision that recognizes the unique practical difficulties facing pro se (unrepresented) tenants.

In Pajic v. Foote Properties, LLC, the D.C. Court of Appeals reversed a decision of the trial court that had found the pro se tenant, Mr. Pajic, liable for unpaid rent and more than $44,000 in attorney’s fees.  The lower court also had dismissed Mr. Pajic’s own claims against the landlord.

Attorney’s fees were the headline issue in the appeal.  Since at least 1955, a residential lease provision requiring a tenant to pay those fees to a landlord has been illegal under D.C. law.  And for good reason: A pro se tenant would be less likely to stand up for his or her rights in court if doing so put the tenant at risk for paying thousands (or tens of thousands) of dollars to a landlord’s attorneys.

The Court agreed.  In a forcefully worded opinion, a unanimous three-judge panel concluded that the lease’s fee-shifting provision was “plainly illegal.”

Just as importantly, the Court held it was “unwilling to enforce a manifestly illegal contract provision” despite the fact that Mr. Pajic had not raised the issue in the trial court below.  Normally, the Court of Appeals only considers arguments previously raised.  But here the Court noted that

Mr. Pajic, who proceeded pro se below, is representative of the vast majority of tenants in landlord-tenant court who cannot afford to retain counsel.  For this vulnerable population, a fee-shifting provision is especially fearsome.

In light of the special challenges faced by pro se parties, the Court chose to “exercise our discretion” to reverse the fee award.

Legal Aid Supervising Attorney Julie Becker, who argued the appeal, praised the result.  “What is really nice here,” said Becker, “is the recognition of the realities of landlord-tenant litigation and the obstacles facing pro se tenants.”

In another part of the opinion, the Court of Appeals also reversed the summary judgment finding Mr. Pajic liable for unpaid rent and reinstated Mr. Pajic’s own claims against the landlord for failure to maintain the apartment in habitable condition.

Highlighting several unresolved disagreements over crucial factual matters, the Court of Appeals held that it was wrong for the lower court to issue judgment before full trial.  It remanded the case back to the trial court for further proceedings.  In addition to the decision itself, the briefs for the case can be found here.

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