By Susann Nordvik

It’s a story almost as old as time, or at least as old as high occupancy dwellings:  Renter signs lease, renter pays security deposit, renter moves out, renter loses security deposit to a host of nebulous, if nonetheless predictable, “expenses” charged back by the landlord after the fact.  This theme is so persistent that many tenants actually plan for the inevitable loss of their security deposit.  Other tenants who are somewhat more optimistic have gone to extreme measures to try and recoup as much of the deposit as reasonably possible, including hiring detailing services for the white glove and cotton swab treatment of their former home.

Washington D.C., however, has implemented safeguards to protect the tenant’s right to recover security deposits.  In 1955, the District enacted Title 14, Section 309 of the District of Columbia Municipal Regulations to prevent the renting public from losing those hefty deposits arbitrarily.  The regulation provides that a landlord must provide notice in writing of the intent to withhold any portion of the security deposit to pay for repairs or other expenses within forty-five (45) days of the termination of the tenancy.  Once this notice is provided, the landlord then has thirty (30) days to effectuate the claimed repairs and tender a refund of the unused amount to the tenant with an itemized statement of each expense to which the deposit funds were applied. 

This modest provision was intended to protect the tenant from random charges and surprises.  In many cases landlords complied with Section 309 in one form or another, and landlord/tenant relationships evolved accordingly.  For some less scrupulous landowners, however, Section 309 marked the beginning of an arms race-like effort to avoid returning deposits.  This eventually became such an obvious concern that in 2012, the District amended Section 309 include subsection 309.5, which details the consequences of a landlord’s failure to comply with the notice and refund requirements.  In the garden variety situation, this would render the landlord responsible for the return of amounts wrongfully withheld, plus any interest accrued during the tenant’s occupancy of a year or more.  Most notably, the new provision also contained a “treble damages” remedy in the event that the tenant was able to establish that the landlord acted in bad faith by refusing to return some or all of the tenant’s deposit.  Another regulation requires landlords who hold a security deposit for one year or more must keep the funds in and interest-bearing account and then return the bank paid interest to the tenant with the remainder of the security deposit.  See 14 DCMR § 311.2.

As an example, let’s say that Jack and Jill rented a two-bedroom apartment for $1500 per month and paid a security deposit of $1500.  They paid the rent timely every month for 12 consecutive months and then moved out.  Jack and Jill would then be entitled to a return of their deposit plus interest within 45 days (unless there was damage, which would give the landlord an additional 30 days to complete the repair and refund any remaining portion of the security deposit).  However, during the final inspection, the landlord noticed that Jack had ripped up some of the tile on the floor in the bathroom, and got an estimate from Good Buddy for the repair at $250.  The landlord then sends Jack a written notice that he will be withholding approximately $250 for the repairs to the bathroom floor.  The landlord promptly has the repair completed, and within 30 days of the written notice to Jack and Jill, the landlord returns $1250, plus interest, and a receipt for the floor repair.
 
But what happens if there was actually no tile damage at the time of move out?  Jack and Jill could be expected to be quite annoyed by the idea of having to be responsible for a $250 repair that was unnecessary, or based on conduct that took place after they left.  In such a situation, Jack and Jill may be able to recoup their lost $250, plus an additional $500 if they can prove that the landlord charged them for non-existent floor damage. 

This is not necessarily as simple as it may seem at first blush.  The text of the regulation describes what “bad faith” means for the purpose of claiming treble damages:

For the purpose of this sub-paragraph, the term “bad faith” means and frivolous or unfounded refusal to return a security deposit, as required by law, that is motivated by a fraudulent, deceptive, misleading, dishonest, or unreasonably self-serving purpose and not by simple negligence, bad judgment, or an honest belief in the course of action taken. 14 DCMR § 309.5(2).

Based on this definition, it would be plausible to obtain treble damages if Jack and Jill can prove that there was never any floor damage prior to vacating the apartment. Moreover, if Jack and Jill can show that the estimate obtained by the landlord was falsified by Good Buddy, a long-time friend of the landlord, this goes a long way to proving that the whole claim as a sham to enable the landlord to keep $250 of the deposit.  However, the landlord may not be found to have acted in bad faith if after his real estate broker conducted the final inspection, the cleaning crew damaged the floor and tried to pass it off as a circumstance caused by Jack and Jill.  The landlord may have reasonably believed the story of his staff rather than his former tenant. 

Additionally, the ability to recover treble damages may also be reduced by a lack of evidence provided to the civil judge or the administrative law judge (“ALJ”) (if a claim is made to the Rental Housing Commission).  This was the case in Bell v. Pourbabai, RH-TP-13-30, 448 (OAH Apr. 15, 2015). 

Bell, together with seven others, rented a single-family residence for $10,000 per month and paid a $10,000 security deposit.  Bell claimed that after more than a year of tenancy, the residents decided not to renew the lease, and although the premises were left in nearly as good a condition as they found it (with some exceptions), the landlord refused to return any portion of the $10,000 deposit.  The tenants filed a petition with the Rental Housing Commission.  After a full evidentiary hearing, the ALJ found that although some amounts of the deposit were improperly withheld, there was an insufficient showing of the landlord’s state of mind in refusing to return the deposit, and consequently, Bell was not entitled to treble damages. The ALJ stated:

In this case, there was no evidence to allow me to consider Housing Provider’s state of mind.  The testimony and evidence did indicate that the Housing Provider was at times intimidating and occasionally threatened the tenants unnecessarily, however, a totality of the evidence presented indicates that Housing Provider’s improper deductions were the result of bad judgment and poor management.  Moreover . . . it also appears that . . . he may have received improper advice from his attorneys.

It cannot be overstated that renting is a costly endeavor for both landlords and tenants.  Therefore, the most important thing for either a tenant or a landlord to do is to document everything.  Photographs or video of both the pre-move in and post-move out inspections will protect both parties from damage claims.  Documentation should include any appliances that were included in the rental, as well as fireplaces, the condition of walls, and any surfaces or fixtures that have been subjected to normal wear and tear.  If maintenance or repairs are an obligation under the lease, then the responsible party should document all such efforts and copy the other party with any relevant estimates or receipts.  Any requests or communication between landlord and tenant should be memorialized in writing, at least as a follow up or recap.  By doing so, it may be possible to avoid a significant percentage of conflict and miscommunication.  At the same time, if your landlord has a bad intent, you may be able to unmask fraud or deception through your showing of consistent care and effort.

Consulting an attorney experienced in bad faith cases may also help guide you along the way.  If you are a tenant, your attorney can help you understand the level of evidence necessary to develop your unique situation in the best possible way.  If you are a landlord, an experienced attorney can assist you in navigating your obligations and avoid costly errors. Feel free to contact Steven Krieger Law, if you need any assistance

By Peter Anderson 

With alarming frequency, nursing homes are slipping arbitration clauses into the reams of paper elderly people musty sign when being admitted to a nursing home. There are 2.5 million Americans living in nursing homes or senior living centers. Some legal advocates believe that as many as 90% of large nursing homes in the U.S. now include arbitration agreements in their admissions contracts.

In many cases, these agreements allow nursing homes to avoid being sued in a normal civil court. This means there is no judge, no jury, and the proceedings in most cases will remain sealed from the public eye. If a person who is injured by a nursing home’s negligence as their case resolved through arbitration, the press will never hear about it, and a Google search will not reveal the case.

Arbitration was meant as a tool for business to resolve disputes quickly and efficiently to avoid courts. However, the use of arbitration has expanded over the past 30 years, and has been increasingly used to deprive consumers, who have little legal knowledge, of their rights. Today, asking the elderly to sign arbitration agreements has become standard industry practice.

​The nursing home industry argues that arbitration is good for business. Industry insiders say that claims subject to arbitration settle for 7% lower total cost to the business and three months sooner than claims with no arbitration. On the other hand, trial lawyers and consumer-rights advocates argue that arbitration agreements deprive consumers of a right to a fair trial and public proceeding.

Why Arbitration Agreements are Bad for Nursing Home Residents

There are several problems with arbitration agreements from my perspective. First, in many instances nursing home residents do not know what they are signing. Elderly consumers may have varying degrees of dementia and are presented with page after page of documents to sign before they can be admitted. Some provisions are benign – the nursing home first may ask the patient to sign a “resident’s rights” document. But, the nursing home may also bury an arbitration agreement in the middle. These agreements are very complex with legalese. The nursing home resident is anxious to be admitted and is not thinking about the wording of every sentence. If the resident has Alzheimer’s or dementia, it is unconscionable to ask such a person to sign a complex contract. But it happens all the time.

Second, arbitration agreements are known to result in lower awards. Instead of a jury hearing your case, who may be outraged by the allegations of neglect, an arbitrator will hear the case. An arbitrator is usually someone with knowledge of insurance disputes or an attorney. These people may have become numb to injury claims and may be less likely to award a large amount of money to a claimant. Further, arbitrators are often chosen from a short list of regional professionals. The same arbitrator can decide cases involving the same nursing home over and over again. This incentivizes arbitrators to keep repeat clients happy and give more favorable decisions to repeat offenders. Studies show that awards to plaintiffs can be as much as 35 percent lower.

Third, arbitration has different rules. What might be considered hearsay in civil court may be admissible under the lax rules of arbitration. Speculation about the cause of a resident’s injuries would be more likely to be heard in arbitration than in a regular court, which typically only allows expert witnesses to opine on causation.
 
Virginia Law on Nursing Home Arbitration Agreements

Under Virginia Code § 8.01-581.01, “a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract.” Unfortunately, courts have held that Virginia law favors arbitration provisions. Bishop v. Med. Facilities of Am. XLVII (47) Ltd. P'ship, 65 Va. Cir. 187 (2004).

However, if you have a claim against a nursing home and are trying to invalidate an arbitration provision, here are a few possibilities:

• Agency – The nursing home resident did not sign the contract herself, and the family member, or nursing home employee, who did not have a valid authority to do so.
• Competency – The nursing home resident did sign the contract herself, but was not competent to do so at the time. The contract can be invalidated by showing that the person had dementia or Alzheimer’s at the time the contract was signed.
• Waiver – A nursing home may waive the right to arbitrate by litigating an issue covered by arbitration. For example, if the nursing home has filed a lien for unpaid medical bills, that may act as a waiver of the entire arbitration agreement.
• Fraud – A nursing home may have fraudulently induced a nursing home resident to sign a contract by misrepresenting the contents of the agreement or making untrue promises with respect to the agreement, the nursing home, or nursing home arbitration clause.

Invalidating a nursing home arbitration clause is a tough task. If you are pursuing a nursing home negligence case (or another claim against the nursing home), it is important to hire an attorney who as experience in dealing with arbitration agreements. If you or loved one has a question about a nursing home arbitration clause or nursing home abuse, please contact us and we'll try to be helpful.

By Brian Mittman

[English Version]

La Ley de Arrendadores e Inquilinos (VRLTA) protege los apartamentos, casas de alquiler y viviendas subsidiadas por el estado de diferentes maneras, como imponiendo requisitos a propietarios institucionales y residenciales, que se definen como tres o más propiedades sujetas a un contrato de arrendamiento). La VRLTA obliga al arrendador a hacerle mantenimiento a la propiedad, que incluye cumplir los códigos de vivienda y edificación; a mantener las instalaciones y las áreas comunes en condición buena y habitable; a asegurarse del buen funcionamiento de las instalaciones; a prevenir la acumulación de humedad y moho; a proveer recipientes para la basura; y a ofrecer suficiente agua caliente y aire acondicionado (§ 55-248.13).
 
Como inquilino en el Commonwealth de Virginia, es su responsabilidad conocer sus derechos y comprender cómo protegerse contra diferentes acciones del propietario.

Información obligatoria que el dueño debe dar
De acuerdo con la VRLTA, estos son algunos ejemplos de información que el arrendatario debe ofrecer:

• Cambios en la titularidad o administración de la propiedad y una lista completa de los agentes autorizados a actuar a nombre del propietario o compañía de administración (§ 55-248.12).
• Si detecta defectos en la mampostería (§ 55-248.12:2).
• Fecha en la que se aplicará pesticida en la propiedad (§ 55-248.13:3).
• La presencia de moho en la propiedad y qué pasos se están tomando para eliminarlo (§ 55-248.11:2).
• Si el propietario sabe que la propiedad era usada para elaborar metanfetamina y la propiedad no está limpia (§ 55-248.12:3).

Información sobre el depósito de garantía
Las cuestiones relacionadas con la seguridad están legisladas en Virginia bajo el código § 55-248.15:1. La VRLTA indica que un depósito de garantía no puede exceder el equivalente a dos meses de alquiler, y el propietario puede usarlo para cobrar meses y tasas sin pagar antes de devolverlo al inquilino.
 
El depósito de garantía debe ser devuelto al inquilino en no más de 45 días después de la terminación del contrato y de la devolución de la propiedad. Si el propietario se cobró algo del depósito de garantía, debe incluir una lista detallada de las deducciones al momento de devolverlo. Si el propietario no devuelve el depósito de garantía conforme a esta sección, el inquilino puede demandarlo y exigir incluso tasas de honorarios para el abogado, además del depósito de garantía.

Los inquilinos no pueden retener el alquiler 
Los residentes de Virginia no tienen el derecho a retener la renta de su arrendatario, pero las propiedades que no cumplan con los estándares de salud o de seguridad o en caso de incumplimiento de contrato, los inquilinos pueden tomar una serie de acciones específicas y pagar el alquiler en una cuenta de la corte, en lugar de la cuenta del propietario.
 
Cualquier inquilino de Virginia que quiera pagar la renta a la cuenta de la corte debería hablar con un abogado de bienes raíces antes de hacerlo. Un abogado puede asesorarlo en diferentes temas:

• los diferentes tipos de condiciones de la propiedad que habilitan la retención de la renta
• el tipo de notificación que debe proveer al propietario antes de retener la renta
• el plazo de tiempo que debe darle al propietario para arreglar el problema
• la cantidad de veces que puede retener la renta legalmente para resolver un problema en la propiedad
• la renta que puede retener legalmente
• las protecciones que tiene en contra de medidas de represalia del propietario, como desalojo

 
Un inquilino nunca debería retener la renta antes de realizar todo el debido proceso legal. Si no sigue el proceso, el propietario tiene el derecho de desalojar al inquilino.

Reglas de desalojo y terminación de contrato
En Virginia, los arrendatarios pueden solicitar el desalojo o la terminación de un contrato cuando el inquilino no cumple con el contrato. No solo cuando no paga la renta, como explica esta publicación. El proceso estándar para desalojar a un inquilino por un problema no relacionado con la falta de pago es darle al inquilino un aviso de 21 días para arreglar la violación según lo solicite el arrendatario. Si las violaciones no se resuelven en 21 días, la notificación indicará que el contrato se terminará nueve días después (en total, 30 días). Un inquilino con un historial de violaciones a condiciones del contrato podría enfrentar una terminación inmediata del contrato. Igualmente, si las acciones del inquilino se consideran como criminales.
 
También si el arrendatario no cumple materialmente con el acuerdo de alquiler o con una sección de la VRLTA, o si afecta materialmente la salud o seguridad del inquilino, este puede notificarle al arrendatario que el contrato terminará si no resuelve el problema dentro de los 21 días. Va. Código § 55-248.21.
 
Los inquilinos de Virginia tienen muchos derechos con la VRLTA, pero los propietarios también están protegidos por la ley. Los inquilinos que quieran cancelar un contrato antes de tiempo tendrán que negociarlo. Pero los inquilinos pierden sus derechos cuando se quedan en una propiedad y violan las condiciones del contrato o que no tienen intención de resolver los problemas.
 
Biografía del autor:
Brian Mittman es uno de los socios de Markhoff & Mittman, P.C. Tiene mucha experiencia en casos de compensación laboral, seguro social y lesiones personales. Para obtener más información, visite AyudaMeLegal.com.

By Katarina Nguyen

A protection order is the same thing as a restraining order in that both are designed to protect you against an abuser. In DC, a protection order requires that the person who is subject to the order, the respondent, stay away from you, the petitioner. However, a protection order can provide many other types of protection and relief, as explained in Section II below. You can obtain a protection order if the “respondent has committed or threatened to commit one or more criminal offenses against [you]” (see DC Code Section 16-1003(a)). There is no filing fee to request and obtain a protection order.

I. Types of Protection Orders

DC has three types of protection orders: the first is a Civil Protection Order, which is used when the person threatening or committing a crime against you is a family member, roommate, someone you dated or had a sexual relationship with, someone with whom you share a child, spouse, ex-spouse, or someone who dated your current boyfriend, girlfriend, or spouse (see DC Code Section 16-1001(6)-(9), (12), and DC Code Section 16-1003(a)). This type of protection order is also used in cases of stalking, sexual assault, and sexual abuse. A Civil Protection Order can last up to one year.

The second type is a Temporary Protection Order, which offers much of the same protections of a Civil Protection Order, but only lasts for up to two weeks (see DC Code Section 16-1004(b)). Because it is granted ex parte, or without the abuser present, this order is meant as a placeholder while you schedule and hold a hearing for the Civil Protection Order (though if the respondent fails to show up to the hearing, then the Civil Protection Order can be granted ex parte as well).
 
The final type is an Emergency Temporary Protection Order, which is similar to a Temporary Protection Order, except that it lasts for only five days (see DC Police’s Guide on Protection Orders). Only a police officer and an advocate from Survivors and Advocates for Empowerment (SAFE) can request this type of protection order.

II. How a Protection Order Protects You

A protection order provides a variety of protections (see DC Code Section 16-1005(c)). The respondent can be ordered to:

• Give up possession of any firearms, restricted from carrying, using, or purchasing a firearm;
• Stop committing or threatening to commit crimes against you and any other person named in the petition ("protected person");
• Stay away from you and any other protected person, including at specific locations
• Refrain from contacting with you and any other protected person;
• Refrain from entering the home, or vacate the home if you both live together and you own/rent or jointly own/rent the home;
• Participate in psychiatric or medical treatment or counseling for, parenting, drugs, alcohol, domestic violence, and so on;
• Pay your attorneys' fees and court costs;
• Return personal property owned by you alone or jointly with the respondent, including keys;
• Provide you with financial assistance or spousal support for your expenses, including rent, mortgage, and bills;
• Pay you child support;
• Keep you and/or your children on his/her health insurance plan; and/or

• Reimburse you for property damage, medical costs, and other expenses you incurred due to the respondent's actions.

 
In addition to the above, the Court could also grant the following relief to the petitioner:

• Grant you temporary custody of the children and, assuming the respondent shows that visitation will not hurt the children's emotional development or endanger them (see DC Code Section 16-1005(c-1)), arrange for a visitation schedule that protects your safety;
• Order the police to assist in enforcing the terms of the order, such as by having them escort you to collect personal belongings or to collect the keys from the respondent for you;
• Grant you custody of a pet that belongs to you, the respondent, or lives in either household; and/or

• Order any other relief that you show you need to protect you from harm.

III. Filing for a Protection Order

A. Eligibility

To qualify for a protection order in DC, you must live or work in DC and at least one incident must have occurred in DC (see DC Code Section 16-1006). A protection order granted in DC is effective in all states in accordance with the U.S. Violence Against Women Act, which applies to all protective orders, regardless of whether the petitioner is a man or woman. Depending on the state, you may have to register your DC protection order with the court to make enforcement easier for the state. However, federal law requires the states to uphold a DC protection order regardless of whether it has been registered. If you move, you should also notify the DC court of your new address.
 
The time limit for filing for a protection order is two years. However, it is recommended that you file as soon as possible as judges view a long delay in filing less favorably. This is because the court will think that you were not really in danger, or else you no longer believed you were in danger, if you waited too long after the threat or crime. The judge will ask you why you waited so long after receiving the threat or injury to file for a protection order. If the judge is not satisfied with your reasons, he or she is more likely to deny your petition.

B. Evidence Gathering

When seeking a protection order, be sure to have the abuser's work and home address, phone number, a physical description, and any aliases he or she uses. Also bring any evidence of harassment, stalking, or abuse inflicted upon or threats made to you or your children that you collected, such as police reports, hospital records, pictures, journals, notes, letters, emails, text messages, recordings, 911 calls, damaged clothing or objects, and so on. You should also contact any witnesses and ask if they would be willing to testify on your behalf at the Civil Protection Order hearing.
 
If seeking temporary custody of a child, have with you the addresses the child has lived at for the past five years and with whom the child lived at each address. You will also need to know if there is any pending court case concerning custody of the child and whether you know of any other person besides yourself or the respondent who claims to have custody of the child.
 
If seeking temporary child support from the respondent, you must bring proof of your income and the respondent's income to the Civil Protection Order hearing. This includes two recent pay stubs, tax returns for the last two years, or a completed financial statement. If there are any other child support orders that affect you or the respondent, then bring copies of them as well.
 
If seeking to have the respondent vacate your home, you must bring the lease or deed to the Civil Protection Order hearing. In addition, if seeking to have the respondent reimburse you for medical costs, property damage, and other expenses you incurred due to his or her actions, bring those bills, invoices, receipts, or estimates to the hearing.

C. Starting the Process - The Temporary Protection Order

To file for a protection order, you must go to the Domestic Violence Intake Center and fill out the Petition and Affidavit for Civil Protection Order form (available here). Because the filing process can take several hours, it is recommended you have plenty of time to arrive at court before it closes at 4:00 pm. If you have an emergency situation, including if the Domestic Violence Intake Center's offices are closed, you can contact the Domestic Violence Unit at Police Headquarters.
 
If filing with the Domestic Violence Intake Center, you can choose whether to file for just a Civil Protection Order or also a Temporary Protection Order, which must be filed with the Civil Protection Order. An intake officer will assist with filling out the paperwork. When writing about the incidents, use descriptive words and include as much details, times, and dates as possible. If you and the respondent share children who live with you, you can also file for child support. When you are finished with the paperwork, a court advocate will talk with you about the hearing and can help provide other resources, including counseling, emergency funds, and shelter housing.
 
If filing for a Temporary Protection Order, you will have a hearing in front of a judge that day. You must show the judge that you are “is immediately endangered by the respondent” (see DC Code Section 16-1004(b)(1)). For instance, if being threatened with death or bodily harm, that would be considered immediate danger. In cases of stalking, if the behavior is continuous or escalates in severity, this would constitute immediate danger. If you have a message from the respondent saying he or she is coming to find you, combined with a threat of committing a crime against you, that could also be a case of immediate danger. If granted, the Temporary Protection Order will remain in effect until the Civil Protection Order hearing, or up to two weeks. If denied, you will still have the Civil Protection Order hearing scheduled.

D. Service

Regardless of whether a Temporary Protection Order is granted, during the period between filing and the Civil Protection Order hearing, the respondent must be served. Service, or delivering the petition to the respondent, cannot be done by you or any other party to the petition (see DC Code Section 16-1004(d)). You can arrange to have a non-party person who is 18 years of age or older to deliver the petition to the respondent. This person must sign a Return of Service confirming the petition was delivered, which you must bring to the hearing. You can also hire a private process server or request that the police serve the petition upon the respondent.

E. The Civil Protection Order Hearing

At the Civil Protection Order hearing, if the respondent does not appear at court and you have proof that the respondent was properly served, then you can obtain a default ruling if the judge finds there is reasonable belief that the harm you stated in the petition occurred. However, if the judge finds that the respondent was not properly served, you can ask to continue the case to give you time to serve the respondent again. If you have a Temporary Protection Order, you can also ask that it be extended until the continued hearing date.
 
If the respondent does appear, there is a negotiation requirement in DC where you meet with an attorney negotiator to see if you and the respondent can reach an agreement about the Civil Protection Order, such as if the respondent consents to the protection order. If an agreement is reached, the judge will review the agreement and make sure that all parties understand the details of the agreement. The judge will then sign the agreement, which will last for one year. On the other hand, if no agreement is reached during negotiations, you will present your evidence and any witnesses, including yourself, of the injuries or threats, and the respondent will submit evidence in defense. The judge will then decide whether to grant the Civil Protection Order if there is good cause to believe that the respondent committed or threatened to commit a prohibited act against you. If the judge states that a decision to grant or deny your petition will be made at a later date, be sure to ask that the Temporary Protection Order be extended until such time.

F. After the Hearing

If the judge denies your petition for a protection order, you should contact a domestic violence resource center to get advice on staying safe. You can also reapply for a protection order if a new violation is committed or a threat to commit a crime is made against you. You may also consider appealing the judge's decision.
 
If the judge grants your Civil Protection Order, you should review the order and make sure there are no mistakes (if there are, see the clerk about correcting the order). Then make several copies, one to keep with you and the others to give to others, such as the front desk of your workplace, your children's school or daycare, sympathetic neighbors, and so on. Include a picture of the respondent with the copy.
 
While the protection order is in effect, if you are a renter, you can ask your landlord to change the locks if you make the request in writing (see DC Code Section 42-3505.08). If the respondent is a tenant in your apartment, you will have to include a copy of the protection order that states the respondent must stay away from you. The landlord will have five business days to change the locks to all entrance doors to your apartment. While the landlord pays the initial cost, you may have to reimburse the landlord if, within 45 days, you receive a bill with proof of the cost. There may also be an administrative fee associated with the lock change that you may have to pay as well if, for instance, your lease provides that the landlord can change the locks upon request for a fee.

IV. Violations of the Protection Order

If you discover that the abuser has violated the protection order, contact the police and provide any evidence of the violation. This evidence can include a journal or log, voicemail messages, letters or envelopes, cell phone bills, emails, and pictures. If there are witnesses to the violation, ask if they would be willing to testify at a hearing. If you were injured as a result of the violation, go to the hospital immediately afterwards, inform the staff that you have a protection order, and take pictures of the injuries. One could be held in contempt of court for violating a protection order, which is punishable by a $1,000 fine and/or up to 180 days imprisonment (see DC Code Section 16-1005(f)-(h)).
 
You can also notify the court of a violation and bring proceedings against the respondent yourself by filing a motion to adjudicate civil contempt or a motion to adjudicate criminal contempt. You would file a motion for the former if the respondent did something such as failing to pay ordered child support. You would file a motion for the latter if the respondent harmed or threatened to harm you.

V. Extending, Modifying, or Vacating the Protection Order

Prior to the expiration of the protection order, you can file a motion to extend the protection order (see DC Code Section 16-1005(d)). At the same time, the respondent (and you) can file a motion to vacate the protection order if he or she can argue there is good cause as well. In addition, you can file a motion to change the terms of the protection order. If filing any of these types of motions, you must show “good cause” to the court to extend, modify, or vacate the protection order. Any motion you file must be served on the respondent in the manner explained previously.

VI. Resources

For additional help, see the DC Police's Guide on Protection Orders and Pamphlet, the DC Coalition Against Domestic Violence and Women Empowered Against Violence Pamphlet, the DC Courts Guide on Domestic Violence Matters, and Womens Law Guide on Civil Protection Orders.
 
If you need assistance filing a protection order or representing you in court, please feel free to contact us for a free phone consultation.

By Steven Krieger

Hiring a contractor for a renovation or remodel project is a major decision – some renovation or remodeling projects cost more than a new car.  Certainly, you want to interview several contractors and check the referrals to find one you feel comfortable with, but perhaps the most important piece of information to verify is the contractor’s license. 
 
A consumer (or anyone) may verify a contractor’s license by confirming with the Virginia Department of Professional and Occupational Regulation (“DPOR”). Unfortunately, there are individuals and business entities that claim to be licensed contractors, but do not actually hold a valid contractor’s license.  Just because the contractor has set-up an LLC or a Corporation (or simply put the LLC, Inc. or Corp. at the end of their name without properly setting up the business entity) to shield the individual owner from liability does not necessarily mean that the contractor has a valid license to perform contracting tasks.  A business license is not a contractor’s license.
 
Possessing a valid contractor’s license is critical because the Virginia Contractor Transaction Recovery Act provides relief to eligible consumers who have “incurred some type of loss through the improper or dishonest conduct of a licensed residential contractor” through the Contractor Transaction Recovery Fund.
 
Unfortunately, if the contractor is not licensed, the consumer homeowner is not able to seek relief through the Contractor Transaction Recovery Fund.  A consumer could certainly file a complaint with DPOR about an unlicensed contractor and “[i]f an investigation indicates the individual or business is not properly licensed, DPOR may take criminal action.”  But, criminal action does not necessary put any money back in the consumer homeowner’s pocket. 
 
Previously, I’ve written about the Virginia Consumer Protection Act (“VCPA”), which is a powerful tool for consumers because it allows consumers to recover reasonable attorney’s fees.  This is significant because a consumer may not want to engage an attorney to sue the contractor if the attorney’s fees are not recoverable from the contractor.
 
The VCPA identifies 54 different violations to help protect consumers in Virginia. Number 46 says that the following is unlawful: “[v]iolating the provisions of clause (i) of subsection B of § 54.1-1115.”  Virginia Code § 54.1-1115(B) states: “[a]ny person who undertakes work without (i) any valid Virginia contractor’s license or certificate when a license or certificate is required by this chapter.”
 
So, the question becomes: who is required to possess a license as “required by this chapter,” which is Chapter 11 Contractors from Title 54.1 Professions and Occupations.  Virginia Code § 54.1-1100 is the definition section of this chapter and defines a contractor and what license class (A, B, or C) the contractor is required to possess.
 
A contractor is defined as: “any person, that for a fixed price, commission, fee, or percentage undertakes to bid upon, or accepts, or offers to accept, orders or contracts for performing, managing, or superintending in whole or in part, the construction, removal, repair or improvement of any building or structure permanently annexed to real property owned, controlled, or leased by him or another person or any other improvements to such real property. For purposes of this chapter, "improvement" shall include (i) remediation, cleanup, or containment of premises to remove contaminants or (ii) site work necessary to make certain real property usable for human occupancy according to the guidelines established pursuant to § 32.1-11.7.”
 
Based on this definition, the term “contractor” is pretty broad, so anyone who provides a consumer homeowner an estimate to perform any remodeling, renovation, or improvement work around your home likely falls into the definition of a contractor and is required to have some type of license – even if the “contractor” plans to sub out all of the work.
 
However, this is one exception: if the project is under $1,000, the contractor is not required to have a Class C license unless “the total value of all such construction, removal, repair, or improvements undertaken by such person within any 12-month period is less than $150,000.”  In other words, your handyman, who charges you $200 to repair a bit of drywall is not required to have a license – unless this handyman is really doing a lot of work during the year that exceeds $150,000.
 
If the contractor does not have a valid license, then the contractor may have violated § 59.1-200(A)(46) of the VCPA, which allows the consumer homeowner to file a complaint against the unlicensed contractor to recover whatever financial damages were caused by the contractor in addition to reasonable attorney’s fees (and potentially punitive damages if the violation was intentional).
 
Although, the consumer homeowner may not be able to recover financially through DPOR and the Contractors Recovery Fund from damages sustained by an unlicensed contractor, the VCPA does allow the consumer homeowner to recover from the unlicensed contractor.
 
If you’re a consumer homeowner struggling with an unlicensed contractor (or even a licensed contractor), please feel free to contact my office for a consultation. 

By Brian Silver
 
Arrest records can be a hindrance to an innocent person’s ability to obtain employment, receive an education, or establish credit. An expungement is used to seal all police and court records pertaining to a specific criminal case. While the records are not permanently destroyed, the public’s access to them is restricted. In Virginia, an individual’s right to expunge criminal records is governed by Virginia Code § 19.2-392.2[1] The statute details when an individual is eligible for an expungement, the legal components that a judge will use to determine the petitioner’s eligibility, and the steps an individual has to take in order to petition for an expungement.
 
After the record is expunged, you may legally deny the existence of the record. Additionally, you cannot be denied any permit, license, or employment based on the expunged record.[2] After expungement, the only time when another individual may be granted access to the record is when a law-enforcement agency needs the record for purposes of an employment application to work for the agency, or for a pending criminal investigation where life or property would be jeopardized without immediate access to the record.[3] If your record is expunged, you may also have the ability to expunge your DNA profile that was authorized due to the arrest.[4]
 
I. Am I Eligible for an Expungement?
 
You hold the right to petition for an expungement if any of the following circumstances apply; (1) you were acquitted of a crime;[5] (2) criminal charges against you were dismissed;[6] (3) the prosecution entered a declaration of nolle prosequi;[7] (4) someone else committed a crime using your identification information;[8] or (5) you received an absolute pardon.[9]
 
In order to be eligible for an expungement, you must maintain a claim of innocence for the crime you were charged with. However, an exception to the rule exists if you receive an absolute pardon.[10] After being found guilty of a crime, the state may later grant you a pardon in one of three manners; (1) a simple pardon, whereby the state officially forgives your crime; (2) a conditional pardon, whereby an individual who is still imprisoned may be eligible for early release; and (3) an absolute pardon, whereby the state officially recognizes your innocence. Only under the third scenario will you have the ability to petition for an expungement. If you plead nolo contendre, or “no contest,” you would not be eligible, as you would be pleading guilty for sentencing purposes.
 
II. How Does a Court Weigh the Merits of my Petition?
 
When considering whether to grant your expungement petition, a court will determine whether allowing your criminal record to remain public presents a “manifest injustice.”[11] While courts use several factors to draw its conclusion, demonstrating that the record’s publicity could harm your employment, educational, or credit prospects can assist in displaying that a “manifest injustice” is present. Additionally, in cases involving an acquittal, the decisions from each court involved in your case may be utilized. For example, a court may be more likely to expunge your record if you were acquitted by a trial court, rather than if you were found guilty by a trial court and later acquitted by an appellate court. If the court finds that disclosure of your record presents satisfies the criteria, your record will be expunged.
 
An exception to the “manifest injustice” standard exists if the record you are looking to expunge was for a misdemeanor charge and you otherwise have a clean criminal record. In this case, unless good cause for keeping the record disclosed is shown by the Commonwealth, you are entitled to have the record expunged.[12]
 
III. How Do I File a Petition?
 
1. First, you will need to file a petition with the appropriate Circuit Court in the city of county where your case was handled.[13] Three additional copies of your petition will be needed throughout the process, including one that you should keep as proof of filing with the court. Along with the petition, you will need to provide a copy of either the warrant or indictment with the court where the case took place.[14] The following must be included in the petition; (1) the date of arrest; (2) the name of the arresting agency; (3) the specific charge you wish to be expunged; (4) the date of the final disposition of the charge to be expunged; (5) your date of birth; and (6) your full name at the time of the arrest.[15]
 
2. The petition is then served on the Commonwealth Attorney (CA), who is the named Defendant.[16] Once the petition has been filed, a hearing is set approximately eight to ten weeks later on the Circuit Court’s civil motions docket.
 
3. The CA then has 21 days to respond to the petition upon being served.[17] The CA will state in its response that it either does or does not object to the expungement. If it does not object, then the scheduled hearing will simply consist of an order directing the judge to expunge the records. If the CA objects, a hearing will be held to determine whether the records’ disclosure presents manifest injustice to you.
 
4. During the time period between filing the petition and the hearing, you would need to obtain two copies of your fingerprints.[18] Unfortunately, the set obtained when the arrest occurred are not available for this process. New fingerprint cards can be obtained at the corresponding Sheriff’s Department, which are then sent along with a copy of your petition to the State Police.[19] The final copy of your petition is retained by the Police Department. The State Police run a criminal history report and mail the report back to the court. The fingerprints need to be obtained as soon as possible after you file the petition to prevent any delay in getting the report back to the court, as it usually takes four to six weeks for the court to receive the report from the State Police.
 
5. If the expungement is granted, the court's order is sent to the State Police, the entity responsible for expunging the records.[20] If the petition for expungement is denied, then the records continue to exist and be disseminated.
 
IV. Cost
 
The following are the costs for each expense incurred during the process:[21]

• Filing fee: $86
• Sheriff’s service fee for filing: $12
• Fingerprints: $15

If you are looking to expunge a record because someone else committed a crime using your identity, you are not required to pay the fee for filing the petition, though other fees still apply.[22]
 
You are not required to hire an attorney to file a petition for expungement, but it almost certainly
will be easier and more convenient.  Feel free to contact us.


[1] Virginia Code § 19.2-392.2.
[2] Virginia Code § 19.2-392.4(B).
[3] Virginia Code § 19.2-392.3(B).
[4] Virginia Code § 19.2-310.7.
[5] Virginia Code § 19.2-392.2(A).
[6] Id.
[7] Id.
[8] Virginia Code § 19.2-392.2(B).
[9] Virginia Code § 19.2-392.2(I).
[10] Virginia Code § 19.2-392.2(I).
[11] Virginia Code § 19.2-392.2(F).
[12] Virginia Code § 19.2-392.2(F).
[13] Virginia Code § 19.2-392.2(C).
[14] Id.
[15] Id.
[16] Virginia Code § 19.2-392.2(D).
[17] Virginia Code § 19.2-392.2(D).
[18] Virginia Code § 19.2-392.2(E).
[19] Id.
[20] Virginia Code § 19.2-392.2(K).
[21] Virginia Code § 17.1-275.
[22] Virginia Code § 19.2-392.2(B).

By: Justin Ewaniszyk

Note: If you're a landlord or tenant in Virginia, check out our Virginia blog post The Eviction Process in Virginia: A Guide for Landlords and Tenants.

In Washington DC, both Tenant and Landlords have certain rights and obligations that they should know about before and during the eviction process. Those rights are governed by D.C. Code §42–3505.01, and it’s important for both Landlords and Tenants to understand the eviction procedure or the court may not grant your request. In other words, a Landlord cannot simply change the locks, turn off the utilities, remove Tenant’s belongings, or physically remove Tenant from the property without proper cause, notice, and a court order evicting Tenant.[1] Similarly, a Tenant may not simply withhold rent.

Step 1: Provide Notice to Tenant(s)
There are many possible reasons to evict a Tenant, but the two most common reasons are: 1) failure to pay rent; and/or 2) failure to comply with the obligations under the lease.[2]  If a Landlord believes a Tenant has failed to pay rent, or violated a portion the lease, then Landlord must send Tenant a "Notice to Cure or Vacate."[3] If Tenant does not correct the issue, if the issue is correctable, then Landlord may file for eviction. (Note: A Landlord may not evict a Tenant whose lease has expired, so long as that Tenant continues to pay rent.)

• Failure to Pay Rent: If Tenant fails to pay rent, Tenant must be provided with a 30-day notice to pay the rent in full by Landlord, unless this right to notice was waived in the lease agreement. If Tenant fails to make the payment on or before the 30 days expire, Landlord may bring an eviction action in court.
• Failure to Comply with Correctable Obligations under the Lease: If Tenant violates a portion of the lease agreement, Landlord must provide Tenant with a 30-day notice to fix the violation. The notice must adequately describe the violation and cannot be waived by Tenant in the lease agreement. If Tenant fails to fix the violation on or before the 30-days expire, Landlord may bring an eviction action in court.
• Failure to Comply with Non-Correctable Obligation under the Lease: Since Tenant is unable to cure a lease violation and the violation is material to the lease, Landlord may initiate the eviction proceedings.[4]

Step 2: Service of Eviction
If Tenant fails to pay the overdue rent or correct the lease violation after the 30 days after the notice was sent, Landlord may file an eviction lawsuit in court. Landlord must then serve Tenant with a “Complaint” which specifies a time and date for the initial eviction hearing.[5] If Tenant fails to show up for the initial court date, and a judgement is rendered for Landlord, Landlord is required to file a “Notice to Tenant of Payment Required to Avoid Eviction” form with the court indicating the amount of money the judgement was entered for, which will then be sent to Tenant by the court.  Tenant is able to avoid the eviction if Tenant is able to pay the full amount owed at any time up until the U.S. Marshall arrives to remove Tenant.  The final notice that Tenant should receive is the official eviction notice called a “Writ of Eviction” and it is issued after the court has ordered a “judgement for possession” to Landlord. However, if Tenant and Landlord show up at the date and time specified in the “Complaint”, then the court will hear them both regarding the eviction.

Step 3: Court

• Initial Hearing:
  1. Roll Call: At the initial hearing, which is dated in the complaint, the judge will call all the cases to make sure all parties are present. If a Tenant fails to show up at this initial hearing, the court will enter a default judgement for Landlord, which means Landlord is given possession of the property by the court. If Landlord fails to show up for the roll call, the court will dismiss the case, meaning that Landlord will have to refile the suit against Tenant if Landlord still wants an eviction.
  2. Opportunity to Settle: After the roll call, the judge will dismiss the room to give the parties an opportunity to settle. The parties, if they chose to settle may either: (a) agree to a “Consent Judgment,” which means that Landlord gets a financial judgment against Tenant, but not a judgment for possession, Landlord cannot use this to evict Tenant; or (b) sign a “Settlement Agreement,” which is a separate agreement between the parties to settle the issue, but does not result in a judgement for Landlord. Both options must be approved by the court when court resumes, and ensure that Tenant will pay the rent owed or correct the lease violation by an agreed upon date.
  3. Unable to Settle: If the parties are unable to settle the matter, the judge will then call forward the parties to decide if the case deserves a trial. If there is a genuine dispute about the facts of the case and Tenant requests a trial, it is likely that the judge will order a trial date for the parties to attend.
• Trial: If the parties are unable to resolve the dispute and the judge believes a trial is appropriate, a trial date will be set and each party will have an opportunity to present their evidence (documents and verbal testimony) and the judge will resolve the dispute for the parties.
• Judgment: If Tenant (a) doesn’t show up to initial hearing, thus giving a default judgement to the landlord, (b) breaks the consent agreement, or (c) loses at trial, then the court will enter a judgement for possession to Landlord, will issue a writ of eviction, and will enter a financial judgment against Tenant if appropriate.  After the judgement is made for Landlord, the actual process of removal will begin.

Step 4: Removal
If a judgement for possession is entered for Landlord, they must then file a “Writ of Restitution” or “Writ of Eviction” with the court at least 2 days after the judgement, which then becomes active 3 days after filing. Tenant will receive a copy of this writ which will indicate the first date which they may be evicted. This writ gives the right to Landlord, with assistance from the U.S. Marshall, the legal authority to remove Tenant and their possessions from the property. If the eviction is based on nonpayment of rent, Tenant can defeat the Writ of Eviction at any time prior to actual eviction by paying all owed debts to Landlord, including: back rent, current rent, court costs and fees. Assuming that Tenant is unable to pay the owed rent, or is being evicted for some reason other than their non-payment, Tenant will be required to leave the property upon arrival of the U.S. Marshall, who will supervise the eviction.

If you’re a landlord or tenant, please feel free to contact us for a consultation.

[1] D.C. Code §42–3505.01(a)
[2] D.C. Code §42–3505.01(a-b)
[3] D.C. Code §42–3505.01(b); § 42-3206 (The “Notice” must be served in both English and Spanish by: (1) personal service to Tenant; (2) service to someone that is over 16 years old and resides on the property; or (3) posting a notice on Tenant’s door, only after a “diligent effort” to achieve notice by personal service has failed twice, and must be accompanied by a mailed copy to Tenant within 3 calendar days of posting).
[4] See D.C. Code §42–3505.01(c) discussing illegal activity in the property.
[5] The “Complaint” must be served 7 days before the appearance date and may be served by (1) personal service to Tenant; (2) substituted service to someone specified to the court that is over 16 years old and resides on the property; (3) certified mail, as long as Tenant personally signs for the letter; or (3) posting a notice on Tenants door, only after a “diligent effort” to achieve notice by personal service has failed twice, and must be accompanied by a mailed copy to Tenant within 3 calendar days of posting

By Steven Krieger

As a consumer, you likely have many interactions with businesses each and every day.  Most of those interactions are innocuous and you never give them a second thought. However, on occasion, you may have a really wonderful experience with a particular business or a really terrible experience with another business.
 
If you’re active on social media (and even if you’re not), you may decide to leave a review for the business on a website like Yelp, Angie’s List, Google+, Bing, or Yahoo, to inform your fellow consumers about the details of your experience.
 
In fact, many businesses encourage consumers to leave positive reviews.  If a positive review was written, everyone is happy.  

But, what happens when your experience is negative?  Typically, the consumer attempts to resolve the dispute with the business and the business has an opportunity to do “do right” by the consumer.  Unfortunately, sometimes the dispute cannot or will not be resolved and the consumer goes online and leaves a negative review about the business and the experience.
 
Local business (big or small) take these negative reviews very seriously.  In fact, if the business is able to identify the consumer who left the review, the business may file a complaint in court and will likely claim that the review is defamatory. 
 
Defamation is the general term that describes a printed (libel) or spoken (slander) statement that hurts ones character or reputation.  A negative review posted online will likely harm a business and could be defamatory -- libel, specifically.  However, if the statements are truthful or entirely subjective, the consumer has a valid defense against such a defamation claim.
 
But, even if the consumer has a valid defense, the consumer still must defend the defamation claim, which will cost the consumer time and money.  In the 1990’s, business began to sue or threatened to sue consumers primarily for the purpose of intimidating consumers into removing the negative reviews. The Public Participation Project explains it best: “[t]hese types of lawsuits are known as Strategic Lawsuits Against Public Participation (SLAPPs).  SLAPPs are used to silence and harass.  [Businesses filing these complaints in court] don’t go to court to seek justice, but instead, to intimidate those who disagree with them or their activities” and who speak out.  In 1992, Delaware became the first state to pass an Anti-SLAPP Act.  Currently, there are almost thirty states that have passed some type of Anti-SLAPP Act and the Public Participation Project is trying to pass federal Anti-SLAPP legislation. The Anti-SLAPP acts were passed to help consumers defend against harassing lawsuits filed to stifle First Amendment freedom of speech rights.
 
D.C. passed an Anti-SLAPP act that became effective on March 31, 2011 and was codified as D.C. Code § 16-5501 to 16-5505.  The D.C. Anti-SLAPP explains that these SLAPP suits should be dismissed if (1) “the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” and (2) the business cannot “demonstrate[] that the claim is likely to succeed on the merits.” See D.C. Code § 16-5502(b).
 
In other words, if the consumer who posted the negative review on Yelp or anywhere else online is able to demonstrate that the review (or any other type of statement -- online or offline) was made to further some type of advocacy on an issue of public interest, then the business must demonstrate that the business is likely to win the case if the court allows the case to proceed. Otherwise, the lawsuit filed by the business must be dismissed and the consumer’s negative review may remain online.
 
In addition to allowing the consumer to immediately file a motion to dismiss and avoid the hassle of time-consuming and expensive litigation, the D.C. Anti-SLAPP Act of 2010 allows the consumer to recover attorneys’ fees if the consumer prevails with the Anti-SLAPP defense in whole or in part.  Specifically, §16-5504(a) states: “[t]he court may award a moving party who prevails, in whole or in part, on a motion brought under § 16-5502 or § 16-5503 the costs of litigation, including reasonable attorney fees.”
 
The attorneys’ fees provision is critical because without the ability for the consumer to recover these fees, the consumer may not be able to afford an attorney to file the special motion to dismiss and the consumer may decide to simply remove the negative review instead of defending the lawsuit, which is exactly what the business was hoping for all along.
 
If you’ve had a negative experience with a business and posted a negative review for the business online (Yelp, Angie’s List, Google+, Bing, Yahoo, or anywhere else – online or offline), which resulted in the business filing a lawsuit against you in D.C., the D.C. Anti-SLAPP Act was designed to help you defend yourself against this type of lawsuit from a business that likely has access to more resources, including money, than you.
 
If you’re defending yourself against a SLAPP suit, please feel free to contact my office for a consultation.