Catholic University Law Review Catholic University Law Review

Catholic University Law Review
Volume 26 Article 3
Issue 3 Spring 1977
1977
A Study of the Evolution and Potential of Landlord Tenant Law

and Judicial Dispute Settlement Mechanism in the District of
Columbia - Part I: The Substantive Law and the Nature of the
Private Relationship
Leslie E. Gerwin
Follow this and additional works at: https://scholarship.law.edu/lawreview
Recommended Citation
Leslie E. Gerwin, A Study of the Evolution and Potential of Landlord Tenant Law and Judicial Dispute
Settlement Mechanism in the District of Columbia - Part I: The Substantive Law and the Nature of the
Private Relationship, 26 Cath. U. L. Rev. 457 (1977).
Available at: https://scholarship.law.edu/lawreview/vol26/iss3/3
This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted
for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For
more information, please contact [email protected].
A STUDY OF THE EVOLUTION AND POTENTIAL OF
LANDLORD TENANT LAW AND JUDICIAL
DISPUTE SETTLEMENT MECHANISM IN
THE DISTRICT OF COLUMBIA
PART I: THE SUBSTANTIVE LAW AND

THE NATURE OF THE PRIVATE
RELATIONSHIP
Leslie E. Gerwin*
do not do unrighteousness in justice

do not favor the poor, nor show
deference to the rich, but in justice
shall you judge your people
Leviticus 19:15
PREFATORY NOTE
The following study and evaluation will be presented in two related arti-
cles. Part I, which follows here, examines the development of the substan-
tive law governing the landlord and tenant relationship. This is presented
through an analysis of the appellate court's perceptions of its role in pro-
tecting both the rights of the disputing parties and the quality of the existing
housing supply.
Part II, which will be presented in the next issue of the Catholic University
Law Review, details the inability of the present dispute settlement mecha-
nism to apply and implement the substantive law; it also reviews and ana-
* Assistant Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva Uni-
versity. B.A. Prescott College, 1972; J.D., Antioch School of Law, Washington, D.C.,
1975.
In addition to the academic research and analysis, the preparation of this article has
been influenced by a year and a half of practice in and observation of the Landlord
and Tenant Branch of the Superior Court of the District of Columbia. The author is
particularly indebted to Professor Terence J. Anderson of the University of Miami
School of Law, who supervised and encouraged the initial preparation of this study as
thesis advisor at the Antioch School of Law. Special thanks is also owed to Professor
Florence Wagman Roisman for her challenge to students to be creative and imaginative
in the interpretation and use of housing law.
Catholic University Law Review [Vol. 26:457
lyzes the previously advanced alternatives for reform of this system. In con-
clusion, it seeks to identify the considerations for developing a new judicial
mechanism and the procedural framework this mechanism will require to re-
solve landlord and tenant disputes.
At the outset, one limitation upon the conclusions presented here needs
to be noted. Although this study proceeds from the recognition that the judi-
ciary cannot solve the housing crisis, it is also based on the proposition that
the courts must provide a forum in which the law can continue to be devel-
oped and implemented. To achieve this objective, reform of the dispute
settlement mechanism, specifically the landlord and tenant court, is required.
Such reform, and the doctrinal development it might spawn, could contribute
to the shrinkage of the private low-cost housing market as it presently exists.
The tension between the implementation of a new doctrine and its broader
policy implications may therefore become the predicate for legislative inter-
vention that could then render obsolete any mechanism developed to meet
present exigencies. The analysis which follows, therefore, is based upon
practical and theoretical legal considerations concerning the nature and
imperative of the law at its present stage of evolutionary development.
I. INTRODUCTION: THE NATURE OF THE LANDLORD-TENANT
RELATIONSHIP
Traditionally, the lease represented a temporary conveyance of real estate,

a transaction governed by the doctrines of independent covenants,' caveat
emptor 2 and waste.3 Absent an express agreement, the landlord had no duty
to maintain or repair the premises, and further had no obligation to mitigate
damages due to a tenant breach. Although the nature of the society changed
and the tenant often sought only a place to live, thus renting only the use
of an apartment, the characterization of the lease as a land transaction re-
1. The performance by one party was independent of the obligation of the other;
thus there was no excuse for a tenant's failure to pay rent because of a landlord breach.
2 R. POWELL, REAL PROPERTY 230(3) (P. Rohan ed., 1977); 1 AMERICAN LAW OF
PROPERTY § 3.11 (A.J. Casner ed., 1952). Similarly, the tenant was not relieved of the
duty to pay rent during the lease term even if the premises were destroyed. In Fowler
v. Bott, 6 Mass. 63 (1809), lessee was held liable for all rent due during the period
covered by the lease notwithstanding destruction by fire of the buildings demised and
refusal of the landlord to rebuild.
2. The tenant is held to take the premises "as is" and, absent fraud, has no right
of recourse for hidden defects subsequently discovered. R. POWELL, supra note 1, at
233; L. JONES, LANDLORD & TENANT § 576 (1906).
3. The tenant has a duty to avoid causing any significant change to the condition
of the premises, which was often found to include an implied duty not to commit waste.
R. POWELL, supra note 2, at 233; 7 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW
275-277 (1926).
1977] Landlord Tenant Law
mained in effect. It was well into the twentieth century before courts began
to depart from strict adherence to the property law concepts developed in
agrarian feudal society. 4 The District of Columbia was among the first juris-
dictions in the United States to reorder the legal relationship of landlord and
tenant, but as late as 1952, the United States Court of Appeals for the Dis-
trict of Columbia Circuit cited with approval the following language:
It is settled law that where the owner of premises, by lease, parts
with entire possession and control of the premises, and the tenant,
either by express provision of the lease or by the silence of the lease
on that subject, assumes liability for the keeping of the premises in
proper repair, the tenant, and not the owner, will be liable in case
of an accident due to negligence in allowing the premises, or any
5
portion thereof, to get out of repair.
In Bowles v. Mahoney, the court denied recovery to a plaintiff who had
been injured when a wall collapsed because the defendant-property owner
4. The first appearance of the tenancy for a fixed term of years is not certain, but
it was a well-known form of leasehold as early as the thirteenth century. At its in-
ception such a tenancy was created by an oral or written agreement and was considered
to be a personal contract. The interest of the lessee for years was treated as a chattel
interest because the lease at that time was as often an investment of capital in property
as it was merely the letting of land to a farmer. 3 W. HOLDSWORTH, A HISTORY OF
ENGLISH LAW 215 (1927). Both the nature of the agrarian society and that of the
interest in land created, however, soon required the application to a lease of legal doc-
trines different from those used to interpret an ordinary contract. In the sixteenth and
seventeenth centuries the law regulating the landlord-tenant relationship evolved for the
most part based upon the needs and desires of the owners of great estates. 7 W. HOLDS-
WORTH, A HISTORY OF ENGLISH LAW 238 (1926). With some assistance from equity
and the legislature, landlord and tenant law emerged based upon foundations of medi-
eval land and contract law and was applied, with some adaptation, to residential prop-
erties. Id. at 296. One nineteenth-century historianobserved:
The truth is that the law of landlord and tenant has never, at least under any
usual conditions, been a law of free contract. It is a law -of contract partly
express, partly supplied by judicial interpretation, and partly controlled by
legislation and sometimes by local custom. So far as the terms and conditions
are express, they are in the vast majority of cases framed by landlords or their
advisors. The tendancy of judicial interpretation has also been, until lately,
to incline the scale of presumption in favor of the landlord on doubtful points;
and the same may be said of the ruling tendancy of legislation down to the
middle of the present century. The allowance of local customs, which might
have done much to redress the balance if taken up betimes, depends on the
tendency of the judges. When special customs were looked on as a kind of
natural enemies of common law, and strict proof of them was required, they
got little help court.
F. POLLACK, THE LAND LAWS 150 (3rd ed., 1896).
5. Security Say. & Commercial Bank v. Sullivan, 261 F. 461, 462 (D.C. Cir.
1919), cited in Bowles v. Mahoney, 202 F.2d 320, 323-24 (D.C. Cir. 1952), cert. de-
nied, 344 U.S. 935 (1953).
had failed to repair it. The court held that "[a]bsent any statutory or
contractual duty, the lessor is not responsible for an injury resulting from a
defect which developed during the term."
It was not until 1970 that the court modified the underlying principle of
common law that had characterized the lease as a conveyance of land.
Writing for the court in the landmark case of Javins v. First National Realty
Corp.,7 Judge J. Skelly Wright declared:
When American city dwellers, both rich and poor, seek "shelter"
today, they seek a well known package of goods and services-a
package which includes not merely walls and ceilings, but also
adequate heat, light and ventilation, serviceable plumbing facilities,
secure windows and doors, proper sanitation and proper main-
tenance.8
Under the holding in Javins a tenant could not be evicted for nonpayment
of rent where the conditions of the premises had abated the duty to pay that
rent. The Court based its decision on "a belief that leases of urban dwelling
units should be interpreted and construed like any other contract."
This replacement of the common law doctrines of real property, which
were the bases of the 1952 Bowles decision, with modern principles of con-
tract law, had been preceded by several judicial departures from strict appli-
cation of the older precedent. These cracks had begun to appear in the case
law shortly after the passage by the District of Columbia' of the 1955
Housing Regulations." Ironically, these new regulations were not intended
to ameliorate the harsh result of decisions denying recovery in tort to tenants
whose injuries were caused by conditions of demised property or to give
tenants the panoply of rights and remedies available to contracting parties.
The updated Housing Regulations were necessitated by the District of
Columbia's application for urban renewal and low income housing funds.
In the District of Columbia there had been standards governing mainte-
nance and conditions of residential buildings since 1878. When the United
6. 202 F.2d at 323.
7. 428 F.2d 1071 (D.C. Cir.), cert. denied, 400 U.S. 925 (1970).
8. Id. at 1074.
9. Id. at 1075.
10. At that time the District of Columbia government was headed by three commis-
sioners appointed by the President. In 1967 this form of government was replaced by
a single commissioner (mayor) and a nine-person city council, all of whom were ap-
pointed by the President. In 1973, Congress passed the District of Columbia Self-Gov-
ernment and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973),
which provides for a mayor and a 13-member city council to be elected by the registered
voters of the District of Columbia.
11. District of Columbia Rules and Regulations, Title 5G; Housing Regulations, 2
D.C. Reg. 47 (Aug. 11, 1955) [hereinafter cited as D.C. Housing Regulations].
States Congress passed the Housing Act of 1954, however, the qualifications
for receipt of federal funds required a municipality to establish eligibility by
developing a "workable program for community improvement ... .- 12 While
the paper program included provisions for the improvement of substandard

housing, in its implementation the plan was not intended to offer much relief
to low-income tenants. Under the program a city could qualify for federal
funds to tear down the slums and build new housing for persons in the middle
and upper income brackets. The new structures, as well as those rehabili-
tated with federal money, would have to be constructed and maintained in
accordance with the updated code. That it was primarily the building, rather
than the tenant, that was the main concern of the Housing Regulations is
evidenced by the provision of criminal sanctions as the sole enforcement
mechanism. Only the District of Columbia government and the landlord
would be parties to a proceeding for violation of the Regulations, which were
silent on the issue of requiring a landlord to correct such violations.
The language of the statement of purpose set forth in the District of
Columbia Housing Regulations, however, was sufficiently broad and egali-
tarian to transcend its pragmatic objective. For example, it read in part:
The Commissioners further find and declare that the aforesaid
[slum and blighted] conditions, where they exist, and other con-
ditions which contribute to or cause the deterioration of residential
buildings and areas, are deleterious to the health, safety, welfare
and morals of the community and its inhabitants.
The Commissioners, accordingly, promulgate these regulations
for the purpose of preserving and promoting the public health,
safety, welfare, and morals.' 3
Thus, a mere eight years after the court reiterated the "well settled law"
which absolved the landlord from liability to tenants injured by conditions
of rental property, the judge who had dissented in that case could write the
majority opinion reaching the opposite result in a similar fact situation."'
Writing for virtually the same court as in the earlier case, Judge David Baze-
lon posed the issue to be whether the Housing Regulations imposed a "statu-
tory duty" on the lessor which was not present at the time of the earlier deci-
12. Housing Act of 1954, § 101(c), 42 U.S.C. § 1451(c) (1970). The "workable
program" required inclusion of a master housing plan, updated codes, and a proposal
for the proper use of municipal resources. See generally Daniel, Judicial and Legislative
Remedies for Substandard Housing Landlord-Tenant Law Reform in the District of
Columbia, 59 GEo. L.J. 909, 911 n.14 (1971).
13. D.C. Housing Regulations, § 2101.
14. Whetzel v. Jess Fisher Management Co., 282 F.2d 943 (D.C. Cir. 1960).
sion. 15 By answering in the affirmative, the court permitted a tenant to

recover for injuries sustained when a bedroom ceiling collapsed.
Significantly, however, the court's reasoning was grounded in the appli-
cation of the new Regulations to traditional common law tort principles.
Judge Bazelon cited both Holmes and Cardozo to emphasize that this judicial
adjustment of the historical landlord-tenant relationship was mandated by the
common law itself. 16 He thus reasoned that where an injury was caused by
the harm sought to be obviated by statutory prescription, the standards of
that statute should be considered in determining civil rights and liabilities.
"This axiom of tort law," he wrote, "tacitly recognizes that the continued
vitality of the common law . . . depends upon its ability to reflect contem-
'17
porary community values and ethics."
Following that decision, the Regulations were invoked by the courts' s as
a basis for avoiding other harsh results previously dictated by the common
law. The first such instance arose in a case in which the landlord sought
to collect rent in accordance with the terms of a lease from a tenant who
had moved from the premises because they were unsafe and unsanitary. The
District of Columbia Court of Appeals accepted the tenant's defense that con-
tract law principles should apply when a lease is entered into in violation of
a statute.1 By declaring the lease void because the landlord had entered into
15. Id. at 944.

16. Id. at 946.
17. Id.
18. Prior to "court reorganization" in 1970, appeal from the trial court and the Dis-
trict of Columbia Court of Appeals (hereinafter "court of appeals"] could be taken to
the United States Court of Appeals for the District of Columbia Circuit [hereinafter "cir-
cuit court"]. The majority of the landmark landlord-tenant cases were decisions of the
circuit court reversing the court of appeals affirmance of trial court decisions. Among
the explanations for the reorganization was the following:
One of the primary purposes of the Court Reform Act was to restructure
the District's court system so that "the District will have a court system com-
parable to those of the states and other large municipalities." Prior to 1970,
the District's local courts and the United States District Court and Court of
Appeals for the District of Columbia Circuit, unlike their counterparts in the
several States, shared a complex and often confusing form of concurrent juris-
diction. ...
The 1970 Act made fundamental changes in this structure. The District of
Columbia Court of Appeals was made the highest court of the District, "similar
to a state Supreme Court," and its judgments, made reviewable by this Court
[United States Supreme Court] in the same manner that we review judgments
by the highest courts of the several States.
Pernell v. Southall Realty Co., 416 U.S. 363, 367 (1974) (citations omitted).
19. Brown v. Southall Realty Co., 237 A.2d 834 (D.C. 1968). This case arose
as an action by a landlord for possession based on nonpayment of rent. The tenant,
who lost in the trial court, moved during the pendency of the appeal and did not
it with knowledge that the premises contained numerous violations of the

Housing Regulations, the court impliedly modified the strict application of
the caveat emptor doctrine to landlord-tenant relationships. That same year,
however, the court of appeals distinguished its holding and strictly limited its
applicability on the basis that the common law did not envision the lease to
20
be a contract.
This was the situation in 1970, when Judge J. Skelly Wright, in order to
halt the piecemeal approach that was producing conflicting decisions, sought
to eliminate "the lingering impact of rules whose policies are long since
dead. ' '21 Basing his decision on the Housing Regulations and the exigencies
of modern urban society, he wrote:
Courts have a duty to reappraise old doctrines in the light of the
facts and values of contemporary life-particularly old common
law doctrines which the courts themselves created and developed.
As we have said before, "[T]he continued vitality of the com-
mon law. . . depends upon its ability to reflect contemporary com-
'22
munity values and ethics."
To reach this point, the courts had seized upon the Housing Regulations
to provide (1) a standard for recognizing private actions seeking recovery
in tort; (2) a basis for implying a prohibition that renders void a lease agree-
ment entered into in violation thereof; and finally, (3) a rationale for re-
cognizing that a tenant has a full panoply of civil rights and remedies as a
contracting party. The Regulations, which provided the basis for these and
subsequent decisions, eventually were amended to codify much of the deci-
sional law. 23 Thus, development of the regulatory scheme has been due in
wish to be returned to the premises. The court heard the case in order to establish
the validity of the lease in any subsequent suit by the landlord for rent. The court found
that promulgation of the Housing Regulations forbidding the renting of premises which
were in unsafe and unsanitary condition and requiring maintenance of housing premises
so as to provide decent living accommodations (sections 2304 and 2501) was a valid ex-
ercise of police regulatory powers which "'imply a prohibition' so as 'to render the pro-
hibited act [the lease agreement] void.'" Id. at 836-37. The precedent for this de-
cision had developed in cases involving licensing violations. Cf. Hartman v. Lubar, 133
F.2d 44 (D.C. Cir. 1942), cert. denied, 319 U.S. 767 (1943). It was significant that
the Brown court did not address the licensing issue but chose instead to base its holding
solely on the landlord's violation of the Regulations.
20. Saunders v. First Nat'l Realty Corp., 245 A.2d 836 (D.C. 1968), rev'd sub. nom.
Javins v. First Nat'l Realty Corp., 428 F.2d 1071 (D.C. Cir.), cert. denied, 400 U.S.
925 (1970).
21. Javins v. First Nat'l Realty Corp., 428 F.2d at 1075.
22. Id. at 1074.
23. See ;1970 Amendments to D.C. Housing Regulations, supra note 11, article 290.
Catholic Uiiversity Law Review [Vol. 26:457
large measure to the interdependence of legislation and judicial interpre-

tation.
A regulatory scheme for which a court has fashioned a present function
different from its original legislative purpose has inherent weaknesses. Initi-
ally, the legislature provided little guidance to the courts as to the meaning
and applicability of the Regulations. In amending the Regulations it did
little more than express its intent to codify the holdings of particular judicial
decisions. Thus, a court that is unable or unwilling to recognize and follow
the trend of the new decisions can legitimately limit, distinguish, or otherwise
avoid application of the Regulations in accordance with the intent expressed
by the original court of decision. The regulated interests have less incentive
to comply when they know that the regulations are not likely to be enforced
in a manner disruptive of the status quo. In addition, the resulting judicial
decisions have been confusing, if not contradictory. The tension between
courts with differing judicial philosophies has kept the law in an unsettled
state. This uncertainty has affected the ability of tenants and landlords to
order both their individual behavior and their private relationship, as well as
to settle their disputes in a manner that is fair and efficient. 24
To these conflicts between the law and its origin, the judicial activists and
the conservative jurists, the present housing market of modern society and
a court system based upon the outdated needs of an agrarian economy, must
be added the conflict between the lessor's right to turn a profit in a free
market economy and the lessee's need for a habitable dwelling. Only in
theory is the tenant in a bargaining position equal to that of the landlord.
24. A recent example of courts' differing perceptions as to the role of the Regulations
in a landlord and tenant dispute is provided by the decision in Winchester Management
Corp. v. Staten, 361 A.2d 187 (D.C. 1976). In that case the court of appeals re-
versed a trial court's award of rent reduction for a landlord's failure to provide air con-
ditioning as promised in the lease. Although it accepted the trial court's finding that
a significant portion of rent paid was in consideration for the air conditioning service.
the appeals court rejected the conclusion that the tenants were entitled to withhold rent
when that service failed or that the tenants could assert the failure as a defense in a
possessory action for nonpayment of rent. Basing this rejection on the fact that me-
chanical air conditioning is not covere4 by the Housing Regulations, the court stated:
We conclude that the tenant may be relieved of his full contractual rental ob-
ligation only when the landlord breaches his implied warranty of habitability,
and that the landlord's duties under such a warranty are discharged when he
has complied with the applicable standards set forth in the Housing Regula-
tions.
Id. at 189. Thus, the court refused to apply the language of Javins, to the effect that
the leases of urban dwellings are to be interpreted like any other contract, to cases where
the landlord's breach of the lease agreement does not involve a violation of the Housing
Regulations. See discussion, Section C.1, Judicial Resistance to Recognition of Tenant
Remedies, infra.
Under such a theory, negotiations between the two parties should produce
a lease that minimizes the conflicting expectations of the parties and maxi-
mizes the desirable social and economic impact upon the housing market.
In reality, the tenant, particularly one in the lower income brackets, has
limited bargaining power to effect the condition of the premises he is about
to rent. He is restricted both in the number and kind of places to live,
and lacks any significant political power. Thus, such tenants usually end
up in court, not as plaintiffs seeking enforcement of the law for relief from
uninhabitable housing conditions, but as defendants fighting the landlords'
attempts to evict them.
The court system which they must face when the judicial mechanism is
invoked to settle a landlord-tenant dispute is the subject of a subsequent ar-
ticle. 25 This article will focus on the evolution of the substantive landlord-
tenant law, the conflicts inherent in the rights and remedies that are now a
recognized part of that body of law, and potential for resolving the dilemma
between pursuing justice and protecting the supply of habitable housing with-
in the framework of the existing criminal and civil law. 211
II. THE PUBLIC POLICY PERSPECTIVE: ENFORCEMENT OF THE

HOUSING CODE BY CRIMINAL PROSECUTION
The statutory scheme that had the most effect on the recognition of new
civil rights and remedies for the tenant initially provided solely for criminal
enforcement by public officials. These sanctions were a dismal failure as an
enforcement mechanism-they did not require a violator to take any correc-
tive measures, they did not serve as a deterrent to allowing housing to become
slums or to permitting violations to go uncorrected, and they did not provide
any incentive for maintaining premises in compliance with the Housing
Regulations. Reliance on criminal penalties for municipal enforcement of
the Regulations not only failed to halt the deterioration of inner city housing,
but initially provided the excuse for failure to undertake more effective
27
remedies.
25. See Prefatory Note, supra.

26. It is not the intention of this article to explore potential legislative remedies be-
yond acknowledging the areas where the judiciary most likely could not be expected to
act absent legislative authority.
27. See Daniel, supra note 12, at 913-16. This dilemma is not unique to the District
of Columbia. In a study of housing code enforcement in several jurisdictions, including
the District of Columbia, it was found that "[t]raditionally, cities have relied exclusively
on such negative policing [i.e. criminal penalties] to regulate the quality of their housing
inventory. Nowhere, however, has code enforcement been completely successful in pre-
venting the development of slums or in preserving sound neighborhoods." Note, En-
forcement of Municipal Housing Codes, 78 HAv. L. REv. 801, 801 (1965).
Enforcement of the Housing Regulations by the District of Columbia

currently has two components: criminal prosecution of landlords for regu-
latory violations and licensing of multi-family residential dwellings. The ef-
fectiveness of the latter program, however, is limited by the general inade-
quacies of the criminal enforcement. 28 Traditionally, enforcement efforts have
been characterized by delay and very few court actions. The statistics evi-
dence the inadequacies. To police the 278,444 housing units which are
subject to the Housing Regulations, 29 the District of Columbia currently
employs seventy-four housing inspectors. 30 While it is reported that there
are 382 buildings presently in a condemned status, the Department of Hous-
ing and Community Development does not compile statistics on other cate-
gories of substandard housing. 3 1 A 1969 study found that approximately
25,000 units required demolishing immediately, another 25,000 units were
seriously overcrowded, and 50,000 were in need of major improvements
to conform to the Regulations.' 2 Since the time of that study, there has
been no evidence by way of housing legislation, increased appropriations, or
other economic indicators which would signify that there has been a sub-
stantial change in these statistics.
Similarly undistinguished is the record of prosecutions of landlords who
are serious violators of the Regulations. In fact, public enforcement activ-
28. Id. at 826.

29. Although this is the figure contained in the 1970 census, it was provided by the
District of Columbia government in response to an inquiry in 1977. Statistics were
provided to the D. C. City Council Committee on Government Operations by the De-
partment of Housing and Community Development. Memorandum from Comer S.
Coppie, Special Assistant to the Mayor, February 16, 1977. (hereinafter D.C.H.D.
Statistics).
30. This figure is current as of January 1, 1977. The District has not filled the
total number of inspector positions authorized in its budget. Of those persons working
as housing inspectors, 63 are employed in appropriations-funded positions; the appro-
priations-funded budget authorizes 74 positions. Both the number of authorized and
employed housing inspectors under the District budget have decreased in the past two
years. In February 1975 the budget authorized employment of 89 inspectors and 72
were employed. Telephone conversation with Mr. William Burnhart, Chief of Plan-
ning and Programming, Division of Licenses and Inspections, Feb. 1975.
Employment by the District of additional inspectors is also made possible by some
special funding grants. A grant from the U. S. Department of Health, Education and
Welfare administered by the D.C. Department of Human Resources, authorizes one
position, and the Community Development Block Grant budget authorizes employment
of another 10 inspectors. Memorandum from Lorenzo Jacobs, Jr., Director, Depart-
ment of Housing and Community Development, Feb. 17, 1977 at 2.
31. This figure reflects government records as of Jan. 31, 1977. The number of
units included in this figure is unknown.
32. MAYOR'S ECONOMIC DEVELOPMENT COMM'N, OVERALL ECONOMIC PROGRAM FOR
WASHINGTON, D.C. x-I (1969).
1977] Landlord Tenant Law 467
ity appears to have declined over the past decade.33 In 1970, the Director
of the Department of Economic Development, whose jurisdiction included
the Bureau of Licensing and Inspections,34 announced that the District was
"successfully" relying upon the voluntary compliance efforts of the land-
lords.a 5 Since that time, there have been less than thirty prosecutions per
year, despite a yearly average of 139 cases referred to the Corporation
36
Counsel's office for prosecution.
The policing of the licensing requirement has not been much better. The
owner or operator of a residential dwelling with three or more units in the
District of Columbia is required to secure a Housing Business License and
a Certificate of Occupancy. 37 The former must be applied for at the com-
33. In fiscal year 1965, there were 58 convictions of landlords for violations of the
Regulations. In 16 of these cases, fines were imposed of less than $100.; in 14 in-
stances, the fine was less than $25. Daniel, supra note 12, at 915 n.42. The follow-
ing year, the number of convictions increased by 30. However, all but one of those
88 convictions resulted in suspension of both fines and jail sentences. Id. In the last
six months of 1969, there were only 12 prosecutions and two convictions. Id.
34. District of Columbia "Reorganization Plan #2 of 1975" created the Department
of Housing and Community Development, which now has responsibility for all housing
inspection functions.
35. Daniel, supra note 12, at 915 n.43.
36. The average number of prosecutions during the seven-year period from 1970
to 1976 was 17, ranging from a low of eight cases in 1973 to a high of 29 in 1976.
D.H.C.D. Statistics, supra note 29, at 2. The other cases of Regulations violations
which were referred for prosecution were disposed of as follows:
Other Disposition
# Cases Prosecutions Collateral Nolle No Cases
Year Referred # (%) Forfeited Prosse Papers closed*
FY 1970 102 13 (13) 29 5 7 54
FY 1971 156 17 (11) 33 14 58 122
FY 1972 190 23 (12) 52 9 103 187
FY 1973 130 8 (6) 47 8 70 133
FY 1974 105 16 (15) 30 18 29 93
FY 1975 137 10 (7) 18 22 8 58
FY 1976 155 29 (12) 58 56 21 164
See id.at 2-3.
* Referral and disposition of a case frequently does not occur in the same fiscal year
due to the nature of the prosecution process, so that the number of cases referred in
a particular year would not necessarily equal the number of cases disposed of in the
same year.
37. The Housing Business License requirement is contained in the D.C. Housing Reg-
ulations, § 3102.1. The authorization for imposition of this requirement is found in D.C.
Code § 47-2328 (1973). The Certificate of Occupancy is a use permit that is issued
to a building on a one-time basis. A new certificate must be applied for only if the
building changes hands. Only single-family dwellings are exempt from the latter re-
quirement, which is found in the D.C. Zoning Regulations, § 8104.1, and in the D.C.
Building Code, § 110.1. Promulgation of this requirement is authorized in D.C. Code
§ 5-422 (1973).
mencement of operation of a housing business38 and must be renewed peri-

odically. While the Regulations are ambiguous as to the frequency of in-
spection required for each building, they provide that no license shall be issued
until the Director of Licenses and Inspection determines that the Regulations
have been observed.3 9 The Director and other specified local government
officials are directed to inspect every building for which a license has been
issued or for which a license application has been filed to insure compliance
with the applicable regulations and laws. 40 Failure of a licensee to comply
with the regulations after notice of deficiencies may result in suspension or
41
revocation of the license.
One limitation against enforcement of the licensing requirements is that
the process is only set in motion if an application for inspection is filed.
Buildings can be operated without the necessary licenses unless a tenant
complains to government authorities about conditions on the premises, or
the lack of a license is raised in the context of a court action. Furthermore,
effective licensing enforcement has been characterized by the same inactiv-
42
ity as criminal prosecution.
The history of government code enforcement is illustrated by the case of
District of Columbia v. First National Realty Corp.43 On January 26, 1968,
Superior Court Judge Timothy Murphy ordered the owner of the Clifton
Terrace Apartments to pay a $5,000 fine in an action brought by the Corpo-
ration Counsel for failure to correct over 1200 violations. 44 The owner had
been notified of the violations over a four-year period. The building had
operated without a Housing Business License since 1961. In his sentencing
opinion, Judge Murphy wrote: "To describe the prior enforcement system as
haphazard is being oharitable-it was much worse. . . . It is apparent that
the delay and neglect by District officials to enforce its own regulations lead
to the exact evil the regulations were designed to prevent."' 43 Three years
years after the original order, the fine was paid. Payment was forthcoming
38. D.C. Housing Regulations, § 3102.1.

39. Id. § 3102.2.
40. Id. § 3103.
41. Id. § 3102.3.
42. See note 38 supra. For example, during the period of July 1, 1975 to June
30, 1976, there were 9,264 apartment house applications filed for housing business
licenses. Issuance was granted to 8,475 of these applicants. In 789 cases, issuance
was withheld pending adverse action and/or full compliance with the applicable laws
and regulations. Id. During that year, however, a total of 155 cases were referred
to the Corporation Counsel, resulting in only 29 prosecutions. Id. at 3.
43. No. 16958-67 (D.C. Ct. Gen. Sess.).
44. Id.
45. Id. at 2-3.
only after a public interest law firm filed a motion for the appointment of
a special prosecutor to collect the fine. Efforts to force the payment of
46
interest were unsuccessful.
It was this same defendant, First National Realty, who, as plaintiff,
brought suit to evict Ethel Javins and others from that same building after
they refused to pay rent because of the deplorable condition of the premises.
By this time the court's opinion cited 1500 violations. On appeal from
judgment for the plaintiff, the District of Columbia Court of Appeals affirmed
the trial judge's rejection of tenant's offer to prove these violations as a de-
fense to nonpayment of rent. 47 Writing for the court, Chief Judge Hood
reasoned that where the regulations or statute "merely imposed a penalty for
failure to repair and maintain the leased premises in a habitable condition"
48
the court must refuse to recognize civil remedies.
After the circuit court subsequently reversed the District of Columbia Court
of Appeals in this case, 49 the City Council amended the Housing Regulations
to provide for "civil enforcement of regulations." Included in the Statement
of Policy was the language: "It is . . . declared that the abatement of [vio-
lations of the housing regulations] by criminal prosecution or by compulsory
repair, condemnation and demolition alone has been and continues to be
inadequate."5 0
The authority to enforce the Regulations by private civil actions was not
intended to eliminate the criminal penalties or to abrogate the government's
role in assuring code compliance. The following example, however, illus-
trates both the minimal impact of this enforcement mechanism and the fre-
quent 'ability of a landlord to subvert it.
When the "District's most prosecuted landlord" 51 was convicted of having
46. Landlord Finally Pays Fine, Wash. Post, May 22, 1971, § B, at 1, col. 1.
47. Saunders v. First Nat'l Realty, 245 A.2d 836 (D.C. 1968).
48. Id. at 838.
49. Javins v. First Nat'l Realty Corp., 428 F.2d 1071 (D.C. Cir.), cert. denied, 400
U.S. 925 (1970). See discussion pp. 463-64 supra. Javins' recognition of civil reme-
dies for breach of an implied warranty of habitability held to be the equivalent of a sub-
stantial violation of the Housing Regulations was based in part on the conclusion that
criminal sanctions were ineffective. The court noted that the Commissioners had in-
stituted the criminal penalties structure because "in their judgment, grave conditions in
the housing market required serious action. Yet official enforcement of the housing
code has been far from uniformly effective. Innumerable studies have documented the
desperate condition of rental housing in the District of Columbia and in the nation."
428 F.2d at 1082.
50. D.C. Regulations, supra note 11, § 2901.2.
51. The landlord, Dr. Shao Ti Hsu, reportedly owns over 500 apartment units in
lower income areas of the District and metropolitan area suburbs. A University of
Maryland engineering professor, Dr. Hsu is reported to have a net worth of over $3
committed perjury during contempt proceedings for failure to make repairs,

the event was of such magnitude as to merit an editorial in The Washington
Post.52 The newspaper observed that "[d]espite Mr. Hsu's massive record
of misconduct, judges in earlier cases had tended to treat him leniently, as
5' 3
if he were an unwitting violator of a technical detail of the housing code."
In recent years several newspaper accounts had reported this landlord's con-
viction for hundreds of housing and fire code violations resulting in fines
totaling several hundred thousand dollars. 4 In addition, one article detailed
the nature of the administrative burden placed upon the District by Hsu's
activities. It quoted him as stating that he appealed about eight out of ten
55
violation notices.
The sentencing judge in the perjury case was the same judge who fined
the convicted owner of First National Realty. In sentencing Dr. Hsu to a
surprisingly harsh prison sentence, Judge Murphy told the landlord "[y]ou
have amassed your wealth by lies and deceit." 5 6 It was reported that the
judge considered ordering the landlord to live in one of his own apartments
but rejected the idea. The reason given was that conditions in the apartments
were such that sentencing someone to live there would constitute "cruel and
'57
unusual punishment."
Recent efforts to expand the use of licensing as a means to police housing
conditions have also been unsuccessful. The court of appeals recently
rejected a defendant-tenant's argument that would have had the effect of
providing a civil enforcement mechanism for the licensing requirements.58
In that case, a landlord who lacked both a Certificate of Occupancy and
a Housing Business License sought possession of apartment units occu-
pied by tenants who had stopped paying rent because the premises allegedly
contained numerous and substantial housing code violations. The tenant
argued that the landlord's failure to obtain the licenses barred his pos-
sessory action, pointing out that the licensing program is an essential part of
the legislative effort to maintain standards of housing quality. Thus, they
submitted, to allow enforcement of claims involving unlicensed premises
million dollars. See The Rich Professor is D.C.'s Most Prosecuted Landlord, Washing-
ton Star, Feb. 16, 1976, § B, at 1, col. 1.
52. The Housing of Mr. Hsu, Washington Post, Sept. 25, 1976 § A, at 12, col. 1.
53. Id.
54. Id. One article reported that "[mioney judgments do not trouble him. Fre-
quently, he never pays them." The Rich Professor, supra note 51.
55. Housing Violator No. 1, Washington Post, Feb. 13, 1976 § A, at 1, col. 5.
56. The Housing ofMr. Hsu, supra note 51.
57. Dr. Shao Hsu Posts Bond And Is Freed, Washington Post, Sept. 25, 1976 § A, at
12, col. 1.
58. Curry v. Dunbar House Inc., 362 A.2d 686 (D.C. 1976).
would frustrate the purposes of the Housing Regulations and imperil the
public welfare.' 9 Unlike the circuit court in Javins, which had taken the
initiative to permit civil remedies when the criminal sanctions proved ineffec-
tive, the court of appeals specifically refused to do so. On the contrary, it
stated:
The District of Columbia's housing laws are silent on the question
of how compliance with the regulations is to be attained short of
criminal prosecution. Without clear legislative direction we are
loath to deny the landlord of a building which has been occupied
on a continuing basis his cause of action for nonpayment of rent
simply because of the lack of a certificate of occupancy or housing
license.6 0
III. CIVIL ACTIONS AND THE PRIVATE RELATIONSHIP
A. Landlord Actions and Tenant Defenses
1. Landlord's Legal Options

The judicial remedies available to a landlord seeking to recover possession
of his property or a money judgment for back rent or damage to the pre-
mises have long been codified, explicit and complete. 61 The most commonly
used procedure is the summary proceeding brought by filing a complaint in
the Landlord and Tenant Branch of the Superior Court of the District of
Columbia seeking to recover possession of property which the tenant is wrong-
fully detaining. 62 Although rarely used, the landlord also has the option of
59. In rejecting this argument, the court emphasized that the landlord had recently
acquired the building and that he had applied for the necessary licenses, although they
had not been granted at the time of trial. The court did not mention that the applica-
tions for the licenses had not been filed until the tenants had raised the issue as an af-
firmative defense in the landlord's suit for possession. Further, it minimized the fact
that the record contained no indication of such licenses ever having been granted.
"While the failure to issue [the licenses] presumably was occasioned by the uncorrected
condition of the premises, the record does not eliminate the possibility that the delay
was attributable simply to administrative inefficiency." Id. at 688.
60. Id. at 690 n. 4 . The court did permit the tenants to show that they were entitled
to abatement of rent because of the substantial housing code violations that affected the
habitability of thq premises.
61. In addition, the District of Columbia courts have upheld the landlord's common
law right of self-help where the lease so provides, if entry upon the premises can be
accomplished without a breach of the peace. In Snitman v. Goodman, 118 A.2d 394
(D.C. 1955), the court concluded that the local forcible entry and detainer statute (the
statutory predecessor to D.C. Code § 16-1501 (1973)) did not abolish the common law
right of the landlord, without use of legal process, to enter "peaceably" onto and take
possession of the premises upon cessation of the tenant's right to possession. Id. at 397.
62. D.C. Code §§ 16-1501-1505 (1973), and D.C. Code § 45-910 (1973). If the
bringing an action for ejectment by filing a formal complaint in the Civil Di-
vision rather than the simplified form in the Landlord and Tenant Branch. 63
The complaint for possession may be joined with a claim for back rent,
although a separate action may be filed in the Civil Division or the Small
Claims and Conciliation Branch seeking recovery of rent in arrears. 64 Ad-
ditional protections have been codified to give the landlord the right to se-
cure a lien on the tenant's chattels 5 and to permit the recovery of double
rent under some circumstances. 66 The landlord may also institute a civil or
small claims action for damages arising from a tenant's breach of a lease
67
covenant or commission of waste.
The landlord's burden of proof in an action for possession is minimal. He
must establish valid service of process and notice to quit, if the latter was not
waived by the tenant. 68 If the action is based on nonpayment of rent, the
tenant demands a jury trial, the case is certified over to the civil jury calendar. D.C.
SUPER. CT. RULES, LANDLORD & TENANT RULE 6. If the issue of title is raised the case
is transferred to the Civil Division. LANDLORD & TENANT RULE 5(c). See also Pernell
v. Southall Realty, 416 U.S. at 370 n.5.
63. D.C. Code § 45-910 (1973) and D.C. Code § 16-1124 (1973). Although the
summary proceeding has been held to be the statutory substitute for the common law
ejectment action, see Pernell v. Southall Realty, 416 U.S. at 375, the two actions are
separately codified. Compare D.C. Code § 16-1501 (1973) with D.C. Code § 45-910
(1973). The latter action may involve, but is not required to include, an issue of title.
Whether or not the issue is raised however, an ejectment action renders the question of
title res judicata. Cf. Service Parking Corp. v. Trans-Lux Radio City Corp., 47 A.2d
400, 403 (D.C. Mun. App. 1946).
64. The language of D.C. Code § 45-911 (1973) is permissive. A landlord need
not join, but can choose to bring a separate action in the Civil Division. Paregol v.
Smith, 103 A.2d 576 (D.C. Mun. App. 1954). Whether or not a claim for back rent
is included in the complaint, in an action for nonpayment the court should enter a
special finding as to the amount of rent in arrears. See Service Parking Corp. v. Trans-
Lux Radio City Corp., 47 A.2d 400 (D.C. Mun. App. 1946). A plaintiff can only
seek a judgment for money in addition to possession when personal service upon the
defendant has been achieved, or the tenant has asserted a counterclaim or a defense of
recoupment or setoff. D.C. SUPER. CT. LANDLORD & TENANT RULE 3.
65. D.C. Code § 45-915 (1973). The Code provides further that this lien may
be enforced by prejudgment attachment of chattels executed by a marshal using force
if necessary, upon affidavit by the landlord that rent is due and unpaid. The con-
tinuing validity of this provision, however, is questionable in light of the Supreme
Court's decisions in Sniadach v. Family Finance Corp., 295 U.S. 337 (1969), and
Fuentes v. Shevin, 407 U.S. 67 (1972). In these cases, the Court held that a substantive
hearing on the merits is required by due process before an individual may be deprived
of property.
66. D.C. Code § 45-911 (1973).
67. D.C. Code § 11-921 (1973).
68. A notice to quit is required to terminate a tenancy from month to month, a ten-
ancy at will, and a tenancy at sufferance. D.C. Code H§ 45-902, 903, 904 (1973). The
parties may by agreement waive this requirement under D.C. Code § 45-908 (1973),
landlord must plead and prove the amount owed. If the action 69 is for
wrongful detainer, either by reason of expiration of lease term or of a notice
to quit, or because of a tenant breach of a lease covenant, this must be esta-
blished.7 0 As late as 1967 it was held that upon expiration of a lease or
the term of the tenancy, or in ,the event the tenancy -was one at will or at
sufferance, the landlord had an absolute right to evict, he could terminate
"for any purpose he might desire and the tenant could not question his
1
motives or attack his reasons."'
2. Landlord ProceduralRequirements: Tenant Affirmative Defenses

Prior to 1968, the only defenses which the law provided a tenant against
wrongful eviction were procedural in nature.7 2 Failure of a landlord to
comply with the statutory procedures for eviction might defeat his action if
raised by the tenant as an affirmative defense in an answer or as grounds
but whether this right of waiver applies for any notice other than in a nonpayment of
rent action is doubtful because of the District's rent control law, § 213. See D.C. Law
1-33 (1975), the Rental Accommodations Act of 1975. The Act sets forth 90-day notice
periods for a landlord who seeks to evict a tenant for reasons other than nonpayment
of rent. In any case, service of process must be effected at least seven days before
the return date on the summons. D.C. Code § 16-1502 (1973); D.C. SUPER. CT.
RULES, LANDLORD & TENANT RULE 4.
69. D.C. Code § 16-1501 (1973). D.C. SUPER CT. RULES, LANDLORD & TENANT
RULES 3, 12. See also note 64 supra.
70. Id.
71. Edwards v. Habib, 227 A.2d 388, 390 (D.C. 1967), rev'd 397 F.2d 687 (D.C.
Cir.), cert. denied, 393 U.S. 1016 (1968). See also Fowel v. Continental Life Ins. Co.,
55 A.2d 205 (D.C. 1947) (landlord has an absolute right of possession even if arbi-
trarily exercised).
72. Presumably a tenant could bring an action for damages if wrongfully evicted by
a landlord who exercised his right of self-help. Cf. Jordan v. Talbot, 55 Cal.2d 597,
361 P.2d 20 (1961).
Whether a modern tenant could sue to be returned to the premises is not a settled
question. A tenant seeking this equitable remedy presumably would be required to show
the inadequacy of available legal remedies. Historically, the common law remedy of
ejectment was designed to give the lessee a cause of action against anyone who ejected
him, including the lessor. W. HOLDSWORTH, supra. note 4, at 216; F. MArrLAND, THE
FORMS OF ACTION AT COMMON LAw 47 (1936). During the fourteenth and fifteenth
centuries this writ was expanded to permit a tenant evicted in breach of his landlord's
agreement to recover not merely compensation for being turned out, but the possession
itself, not only against the original landlord, but against a purchaser from him. F.
POLLOCK, supra note 4, at 144. In an unreported per curiam decision, the circuit court
reversed a trial court's refusal to grant tenants' motion for emergency relief from a land-
lord's exercise of his right of self-help by locking out tenants who had failed to pay rent.
In addition, the court ordered that the tenants be returned to the premises. Chavez v.
Sweeney, No. 23,504 (D.C. Cir. 1969). For a summary of various remedies available
in other jurisdictions to tenants who have been wrongfully evicted by a landlord exercis-
ing self-help, see Annot. 6 A.L.R.3d 177, 199-237 (1966).
Catholic University Law Review (Vol. 26:457
for dismissal in a motion. Historically, landlords have not made impressive

efforts to comply with the procedural requirements. Most of these provisions
currently in effect are of a highly technical nature. Thus, for the majority
of tenants, who do not know of their availability, much less how to raise and
prove them properly, they are of limited value.
The procedural defenses concern such elements of the eviction process as
notice to quit, service of process, and identification of the real party in inter-
est. A notice to quit that fails to give the tenant at least a full thirty days to
vacate (or ninety days in some instances), and which, in the case of a
monthly tenancy, does not expire on the day of the month from which the
73
tenancy commenced to run, is subject to challenge in a motion to dismiss.
Service of either or both the notice and the complaint are subject to being
quashed if not effected properly. 74 Waiver of the notice to quit is permissible
in nonpayment of rent cases only where such waiver is in writing. 75 Further,
there is a requirement that an action be prosecuted by the real party in in-
terest. 7 6 To this may be added the qualification that a plaintiff seeking pos-
session or back rent who is not the property owner, must have a real estate
77
broker's license.
73. D.C. Code §§ 45-902, 910 (1973). See also Zoby v. Kosmadakes, 61 A.2d 618
(D.C. Mun. App. 1948). There remains confusion as to the precise meaning of "the
day from which the tenancy commenced to run." Although courts have tended to con-
sider the "from" as synonomous with "on," there are persuasive arguments against this
position.
74. As to notice, see D.C. Code § 45-906 (1973). See also Moody v. Winchester
Management Corp., 321 A.2d 562 (D.C. 1974). As to service of process, see D.C. Code
§ 16-1502 (1973), D.C. SUPER. CT. RULES, LANDLORD & TENANT RULE 4. See also
Bell v. Tsintolas Realty Co., 430 F.2d 474 (D.C. Cir. 1970). Notwithstanding the ap-
parent stringent standards for service of process, the District of Columbia courts have
often had occasion to question whether good faith efforts are being made to effect per-
sonal service in landlord-tenant actions. Statistics indicate that the overwhelming ma-
jority of summonses are served by posting. See Bell v. Tsintolas Realty Co., 430 F.2d
at 477 n.7. See also South Potomac Realty v. Straker, No. L73546-73 (D.C. Super. Ct.
1973). The Landlord and Tenant Rules now require special process servers to complete
a form that requires that they show "specific facts from which the court can determine
the process was served as indicated above and in compliance with D.C. Code Section
16-1501 and SCR Landlord & Tenant 4." A check of the returned forms reveals that
the special process servers specify no more than the manner of service. Where they
claim to have posted the summons there is generally no showing that an effort was made
to effect personal service.
75. D.C. Code § 45-908 (1973).
76. SUpER. CT. RULE 17, made applicable to Landlord and Tenant Branch by LAND-
LORD & TENANT RULE 2. Cf. J. H. Marshall v. Burleson, 313 A.2d 587 (D.C. 1973).
77. D.C. Code §§ 45-1401, 1402, 1407 (1973). See also Harrison v. J.H. Marshall,
271 A.2d 404 (D.C. 1970); H & M. Enterprises v. Williams, No. SC-4060-74 (D.C.
Super. Ct., Sept. 13, 1974).
The most prominent reason that the threat to a landlord of dismissal for
failure to comply with these requirements is minimal is the fact that the vast
majority of actions filed result in default judgments. To take a default, a
landlord need not demonstrate compliance with any of the procedural pre-
requisites. 78 If service of process was not properly achieved, a tenant may
not have notice to appear in court and therefore cannot challenge the invalid
service. 79 If a tenant does appear, he is rarely aware of the availability
of these objections.
In order to raise such a defense, a tenant would have to be among the
minority of defendants represented by counsel. Even when a defense is
raised, however, many judges will balk at dismissing an otherwise apparently
meritorious action on a "mere technicality." The right of a tenant to appeal
the wrongful refusal of a judge to recognize such a defense is meaningless
unless that same judge grants a stay of execution of judgment or permits an
interlocutory appeal, both of which are highly unusual and contrary to the
principle of a summary proceeding. Finally, in theory, the most to be gained
by successfully invoking a procedural defense is a postponement of a trial
on the merits. It is not to be denied, of course, that this often has strategic
and tactical advantages for a tenant in negotiating a settlement.
B. The Emergence of Tenant Substantive Defense

Notwithstanding the expansion of procedural protections, the courts have
resisted recognition of tenant substantive defenses to an eviction action.
The continuing judicial adherence to common law principles underlying the
landlord-tenant relationship has not adequately protected the tenant from
improper eviction. Prior to 1970, when faced with a case where modifica-
tion of outdated precedent was clearly appropriate in order to avoid a partic-
ularly harsh result, the courts chose to create legal fictions and to tolerate
conflicts in the law rather than depart from the "well-settled" common law.
Although twentieth-century urban America is far removed from twelfth-
century feudal England, the doctrines of independent covenants and caveat
emptor developed centuries ago were adhered to and applied by the courts
80
well into the latter half of the twentieth century.
78. Technically, the landlord must file a 'Return of Service showing that tenant was
properly served with a summons and complaint. But see discussion at note 74, supra.
79. Neither the statutory nor case law in the District of Columbia specify whether
a tenant evicted by a landlord who has failed to comply with the procedural require-
ments can bring an action to be restored to his premises. See note 72 supra.
80. The landlord convenanted to deliver possession to the tenant. Whether this re-
quired the landlord to put the tenant in actual possession or merely to give him the legal
When the demands of justice required recognition of a tenant's defense

seemingly in conflict with the old doctrines, the courts preferred to twist and
bend the one covenant implied at common law on the tenant's behalf. Thus
it was said to be a breach of the covenant of quiet enjoyment when the tenant
was forced to vacate all or a substantial portion of the premises because they
had become completely unfit on account of the landlord's wrongful actions.
A tenant who vacated the premises was permitted to raise constructive evic-
tion as a defense if the landlord brought suit to recover rent for that part
of the tenancy remaining after the tenant's departure. 8' The requirement
right to possession, depended upon whether a jurisdiction followed the English (implied
covenant to deliver physical possession) or the American (implied covenant to deliver
"legal" possession only) rule. For a summary and analysis of these rules, see Hanna
v. Dusch, 153 S.E. 824 (Va. 1930). Once delivery was accomplished, the landlord
covenanted to leave the tenant in peaceful possession during the term of the lease. This
was a covenant against acts of the lessor and those who claimed the land by title para-
mount to him. It was not a covenant against the act of third-party wrongdoers. Where
this covenant of quiet enjoyment was not found in the express language of the lease the
court would imply it, unless such implication was contrary to provisions of the lease it-
self. R. POWELL, supra note 1, at 225(3). 7 W. HOLDSWORTH supra note 4, at 252-3.
The tenant, for his part, covenanted to pay rent during the entire period specified by
the lease. If he left before the expiration of the term, either voluntarily or because of
a breach of covenant by the landlord, the obligation to pay continued. If he did not
pay, the landlord could bring suit to collect. If the tenant sought redress for the land-
lord's breach of a covenant including that of quiet enjoyment, he had to file a separate
action rather than raise it in defense to a landlord's action to collect rent. Holdsworth
observed that the rules concerning the tenant's obligation to pay rent developed from
a mixture of medieval law and more modern contract ideas, thereby producing a complex
body of very technical law. "['Ilt is not surprising," he wrote, "that it is neither wholly
rational nor wholly intelligible." Id. at 262-64. See discussion on doctrine of inde-
pendent covenants, supra note 1.
As contrasted with the limitations on a tenant's actions for landlord's breach of coven-
ant, it was generally "common practice to insert in leases . . . provisions enabling the
landlord to re-enter and put an end to the lease if the tenant fail[ed] to perform his
obligations." F. POLLACK, supra note 4, at 149. If the lease did not provide the landlord
this remedy, a statute often authorized him to bring an action for ejectment or wrongful
detainer. In the majority of cases, a legal proceeding for possession based upon tenant's
breach of the covenant to pay rent involved two questions: (1) Is the tenant pre-
sently occupying the apartment? and (2) Did the tenant pay the rent? See Quinn &
Phillips, The Law of Landlord-Tenant: A Critical Evaluation of the Past with Guide-
lines for the Future. 38 FORDHAM L. REv. 225 (1969). In this article the authors ob-
serve that "the law in this area is a scandal." Id. at 225.
81. Cases in the District of Columbia recognizing constructive eviction include
Ackerhalt v. Smith, 141 A.2d 187 (D.C. 1958), and Goldsmith v. Gisler, 150 A.2d 462
(D.C. 1959). Successful assertion of the defense of partial actual eviction, whereby a
substantial portion of the premises becomes untenable or unuseable for the purpose for
which it was rented, allows the tenant to remain while granting an entire rent abate-
ment. See, e.g., Okie v. Person, 23 U.S. App. D.C. 170 (1904). Generally, however,
this defense is inapplicable to the tenant in a residential apartment because the premises
are usually rendered totally uninhabitable. Because the defense of constructive eviction
19771 Landlord Tenant Law
that the tenant vacate the premises, however, made the defense of little use to
to the low income tenant with little possibility of finding suitable alter-
82
nate housing in an urban area with a housing shortage.
This was the status of the law when, in 1968, First National Realty Corpo-
ration sought to evict Ethel Javins, Rudolph Saunders, and other tenants at
the Clifton Terrace Apartments for nonpayment of rent. Notwithstanding
the 1500 housing code violations, the plaintiff prevailed both at the trial
level s and in the District of Columbia Court of Appeals.8 4 These courts
held that the tenants were barred by the doctrine of caveat emptor from
raising a defense to nonpayment of rent because they had not vacated their
homes. Affirming the trial court, the court of appeals stated:
The long established rule in this jurisdiction, following the common
law, is that, in the absence of statute or express covenant in the
lease, a landlord does not impliedly covenant or warrant that the
leased premises are in habitable condition and the landlord is not
obligated to make ordinary repairs to the leased premises in the
exclusive control of the tenant.85
The court of appeals reached this conclusion notwithstanding the fact that
the circuit court in Whetzel v. less FisherManagement Co. had allowed tenant
Audrey Whetzel to recover for personal injuries sustained when an entire
bedroom ceiling collapsed on her. The Saunders court, recognizing that
it had to distinguish between the cases, did so by rationalizing that the
Whetzel court had merely applied other common law concepts not appro-
priate to First National's action for possession. "We understand it to hold"
explained the court of appeals, "that where a landlord negligently fails to
comply with the Housing Regulations and as a result the tenant is injured,
the tenant may sue the landlord in tort." The court continued:
This was simply an application of the rule that a private action for
negligence may be based upon violation of a penal statute where
the injured party is within the class of persons the statute intended
is based on the theory that the landlord has breached the covenant of quiet enjoyment,
in order to secure a remedy the tenant would have to move. R. POWELL, supra note
1, at 225(3). See also Quinn & Phillips, supra note 80, Daniel, supra note 12.
82. The New York courts have recognized the defenses of partial constructive evic-
tion whereby a tenant is permitted a rent abatement without abandoning the premises.
Gombo v. Martise, 44 Misc.2d 239, 253 N.Y.S.2d 459 (Sup. Ct. App. Term), rev'g
41 Misc.2d 475, 246 N.Y.S.2d 750 (Civ. Ct. 1964). The District of Columbia courts
achieved essentially the same result by substituting contract defenses for common law
principles in Brown v. Southall Realty Co., and Javins v. First Nat'l Realty Corp. For
a discussion of these cases, see text accompanying footnotes 87-94, infra.
83. R. POWELL, supra note 1 at 225(3).
84. Saunders v. First Nat'l Realty Corp., 245 A.2d 836 (D.C. 1968).
85. Id. at 838.
to protect and the injury was of the type the statute intended to
prevent. Whetzel did not hold that the Housing Regulations
enlarge the contractual duties of a landlord.86
Just prior to its holding in Saunders, the District of Columbia Court of
Appeals had taken its own first step out of the middle ages. Its decision in
Brown v. Southall Realty Co.,8 7 provided the tenant with a degree of relief
from the strict dictates of the caveat emptor doctrine. In that case the
court of appeals reversed the trial court's judgment for the landlord and held
that Lillie Brown did not have to pay the arrearage in rent incurred before
she vacated her apartment. In so doing, the court indicated that where the
landlord rented an apartment with knowledge of violations of the Housing
Regulations, the lease was void and rent was not owed thereunder."s The
court reasoned that where the violations were of a serious nature, the regu-
lations implied a prohibition that rendered void a rental contract entered
into in violation of them. Six months later this first application of the law
of contracts to the landlord-tenant relationship, however, was explained by
the same court as being rather limited:
Our holding in Southall was that where the owner of dwelling
property, knowing that Housing Code violations exist on the prop-
erty which render it unsafe and unsanitary, executes a lease for the
property, such lease is void and cannot be enforced. We did not
hold and we now refuse to hold that violations occurring after the
tenancy is created void the lease.89
As Brown was being decided and distinguished by the court of appeals,
the circuit court, in a decision reversing the court of appeals, held that a land-
lord's right to evict a tenant was not absolute.90 As in the earlier departures
from strict common law doctrines, the circuit court found the basis for its de-
cision in the Housing Regulations:
But while the landlord may evict for any legal reason or for no
reason at all, he is not, we hold, free to evict in retaliation for
his tenant's report of housing code violations to the authorities.
86. Id. at 839 (footnote omitted), distinguishing Whetzel v. Jess Fisher Management
Co., 282 F.2d 943 (D.C. Cir. 1960).
87. 237 A.2d 834 (D.C. 1968).
88. The continuing validity of this holding was brought into question by the later
holding of the court of appeals in William J. Davis, Inc. v. Slade, 271 A.2d 412 (D.C.
1970). See section Cl, infra.
89. Saunders v. First Nat'l Realty Corp., 245 A.2d at 837-38. For a tenant to pre-
vail under Brown v. Southall Realty Co., he would have to prove that the landlord
knew of the existence of violations prior to entering into the lease. Needless to say,
for the majority of tenants this would be an extremely difficult burden to meet.
90. Edwards v. Habib, 227 A.2d 388 (D.C. 1967), rev'd, 397 F.2d 687 (D.C. Cir.),
cert. denied, 393 U.S. 1016 (1968).
As a matter of statutory construction and for reasons of public pol-

icy, such an eviction cannot be permitted. 9 '
The court's reasoning also signaled that perhaps further modification of
the common law based upon public policy requirements would be needed.
Writing for the circuit court, Judge J. Skelly Wright observed:
In light of the appalling condition and shortage of housing in
Washington, the expense of moving the inequality of bargaining
power between tenant and landlord and the social and economic
importance of assuring at least minimum standards in housing con-
ditions, we do not hesitate to declare that retaliatory eviction
92
cannot be tolerated.
Then in June, 1970, came the circuit court's decision in Javins v. First
National Realty Corp.93 In another reversal of the court of appeals, the cir-
cuit court removed the limitation the former court had placed upn the treat-
ment of the lease as a contract. The circuit court not only directed that the
'9 4 it
lease "should be interpreted and construed like any other contract,
reasoned that the tenant should be accorded the full panoply of rights and
remedies as a contracting party.
The opinion of the court was filled with new ideas. The court took judicial
notice of the housing shortage and of a tenant's lack of bargaining power to
cause the landlord to make repairs. It recognized the tenant's obligation to
pay rent to be dependent on the landlord's maintaining the premises in habit-
able condition. In sum, the court departed from application of old common
law doctrines to modern urban housing and declared that leases of such res-
idential property were to be treated as contracts which contained an implied
warranty of habitability. Therefore, a tenant could not be evicted for non-
payment of rent where the landlord had violated the obligation to maintain
the premises in a safe, sanitary, and habitable condition.
Undaunted, the court of appeals continued its efforts to preserve the vestiges
of the common law. Two months after the circuit court in Javins signaled a
significant expansion of tenants' rights, the court of appeals announced
another restriction. In Robinson v. Diamond Housing Corp.,95 the court of
appeals held that the tenant who successfully invoked a Brown defense to
defeat an action for possession based on nonpayment of rent could still be
evicted upon the service and expiration of a thirty-day notice to quit. To
91. Id., 397 F.2d at 699 (footnote omitted).

92. Id. at 701 (footnote omitted).
93. 428 F.2d 1071 (D.C. Cir.), cert. denied, 400 U.S. 925 (1970).
94. Id. at 1075.
95. 267 A.2d 833 (1970), rev'd, 463 F.2d 853 (D.C. Cir. 1972).
reach this anomalous result, the court strained to distinguish the holding
of the circuit court which had reversed its decision in Edwards v. Habib:9 6
Furthermore, we are of the opinion that the retaliatory defense of
Edwards v. Habib . . . is not available to a tenant in a case such
as this where she was successful in a prior Landlord and Tenant
action and is being evicted after the expiration of a thirty-day no-
tice because the landlord wishes to withdraw the property from the
rental market. The Edwards case involved a situation where the
landlord attempted to evict the tenant because of her complaints
to the housing authorities and it should be, we think, limited to its
facts. 97
In the final landlord and tenant decision to come from the United States
Court of Appeals for the District of Columbia Circuit, handed down after
Court Reorganization,98 this court of appeals decision, like Edwards and
Javins (Saunders) before it, was categorically reversed.9 9 The circuit court
held that an unexplained eviction following successful assertion of a Javins
or Brown defense is " 'inherently destructive' of tenant's rights" and, hence,
gives rise to the presumption that landlord is motivated by an illegal purpose
to seek possession. The court went one step further than Edwards, empha-
sizing that the mere existence of a legitimate reason would not rebut the
presumption where the landlord is found to be motivated in fact by some
illegitimate Teason. The court was unequivocal:
Southall Realty [Brown] and the housing code guarantee the
right of a tenant to remain in possession without paying rent when
the premises are burdened with substantial housing code violations
making them unsafe and unsanitary. The landlord of such pre-
mises who evicts his tenant because he will not pay rent is in effect
evicting him for asserting his legal right to refuse to pay rent. This,
of course, is the very sort of reason which, according to Edwards
and the housing code, will not support an eviction. 100
To reach this decision, the court invoked all of the recent case law in this
area and, in particular, noted the intersection of the principles it articulated
in Edwards and Javins. Thus it concluded that Lena Robinson would have
been entitled to remain in her apartment without paying rent for so long as
96. See 227 A.2d 388 (D.C. 1967), rev'd, 397 F.2d 687 (D.C. Cir.), cert. denied,
393 U.S. 1016 (1968).
97. 267 A.2d at 835.
98. See note 18, supra.
99. Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.C. Cir. 1972).
100. Id. at 865.
the premises remained in substantial violation of the housing code, had she
not vacated prior to the court's handing down of its decision.' 0 '
The status of Robinson as precedent however, remains uncertain. Those
trial and appellate court judges who have continually resisted the trend of
the case law have refused to recognize Robinson as controlling in cases with
10 2
a similar factual setting because it was decided after Court Reorganization.
In a case decided by a 2 to 1 vote in 1976, the District of Columbia Court
of Appeals extended the prohibition against retaliatory evictions to cases in
which possession is sought at the end of a fixed-term lease.' 0 3 As authority
for its decision, however, the court of appeals rested solely upon the circuit
court's reasoning in Edwards. In essence, the court ignored Robinson when it
declared: "The controlling decision concerning 'retaliatory eviction' in this
jurisdiction is Edwards v. Habib."'1 ° 4 (citation omitted) Although the court
cited Robinson, it did so only as a restatement of the Edwards reasoning and
0 5
as a reinforcement of judicial support for the retaliatory eviction defense.'
In light of the continuing resistance of the District of Columbia courts to
apply the far-reaching decisions of the United States circuit court, the elo-
101. In a footnote to its opinion, the court directed the trial court on remand to in-
vestigate the uncontradicted contention that the premises in question had been repaired
and rented to another tenant after Ms. Robinson's departure. Id. at 870 n.29.
102. See note 18, supra. Following Court Reorganization, the District of Columbia
Court of Appeals again undertook to limit a tenant's constitutional rights. In Pernell
v. Southall Realty Co., 294 A.2d 490 (D.C. 1972), it held that jury trials are not guar-
anteed by the seventh amendment when a landlord seeks only repossession of rented
premises in an action predicated on nonpayment or other breach of the lease. It further
held that a tenant's counterclaim for damages if tried before a jury must be instituted as
a separate action. The reversal of this decision had to come from the United States Su-
preme Court. Pernell v. Southall Realty Co., 416 U.S. 323 (1974). The Court found
that the opinion of the court of appeals was contrary to the common law governing land-
lord-tenant relations. The Court stated: "Had Southall Realty leased a home in Lon-
don in 1791 instead of one in the District of Columbia in 1971, it no doubt would have
used ejectment to seek to remove its allegedly defaulting tenant. And, as all parties
here concede, questions of fact arising in an ejectment action were resolved by a jury."
416 U.S. at 373-74.
103. Golphin v. Park Monroe Assocs., 353 A.2d 314 (D.C. 1976). In that case the
landlord filed an action for possession of defendant's apartment upon the expiration of
the one year lease term. At the trial, tenant offered to prove that his eviction was
sought in retaliation for his activities as president of a tenants' association and for his
reporting of alleged housing violations. He further proffered that, if the landlord was
not motivated by retaliatory reasons, upon expiration of the lease he would have been
permitted to remain in possession as a month-to-month tenant in accordance with the
established policy of the landlord and "in consonance with the express terms of the
lease." Id. at 315. The trial judge refused tenant's offer of proof and entered judgment
for the landlord. The appellate court reversed, holding that the lower court erred in
excluding such evidence.
104. Id. at 316.
105. Id. at 318.
quent parting observation of Judge J. Skelly Wright, writing on behalf of the

circuit court in Robinson, is significant as a plea for judicial enlightenment.
It deserves quotation here in its entirety:
We do not pretend that allowing Mrs. Robinson to assert an
Edwards defense will solve the housing crisis in the District of
Columbia. That crisis is the product of a constellation of social
and economic forces over which no court-and indeed perhaps no
legislature-can exercise full control. But while the judicial pro-
cess is not a deus ex machina which can magically solve problems
where the legislature and the executive have failed, neither is it a
mere game of wits to be played without regard for the well-being
of the helpless spectators. We cannot expect judges to solve the
housing dilemma, but at least they should avoid affirmative action
which makes it worse. The District's legislative body has formu-
lated a comprehensive plan, including criminal sanctions, public in-
spections, subsidies and rent withholding, to tackle our housing dif-
ficulties. In the end, that plan may not work. But if it fails, at
least the failure should be caused by inherent weaknesses rather
than by judicial subversion. 10 6
C. Affirmative Actions By and On Behalf of Tenants

1. Judicial Resistance to the Recognition of Tenant Remedies
At the present time, a tenant is not permitted to file an independent action

in the Landlord and Tenant Branch of the District of Columbia Superior
Court. Furthermore, the tenant is limited in the nature of claims he may
adjudicate when the landlord institutes an action against him in that court. 10 7
Thus, a tenant who has not been or who does not want to be sued for evic-
tion must file a complaint in a separate forum and comply with a different
set of procedural rules. With the exception of the minimal recovery available
in the Small Claims Branch, the civil court rules do not provide for an in-
formal summary proceeding that promises a plaintiff expedited relief. Fur-
106. 463 F.2d at 871.

107. The Landlord and Tenant Rule governing counterclaims states: "No other
counterclaims [than those relating to the rental obligation or the condition of the prem-
ises for which equitable relief is subject] whether based on personal injury or otherwise,
may be filed in this branch. This exclusion shall be without prejudice to the prosecution
of such claims in other branches of the court." D.C. SUPER. Cr. RULES, LANDLORD &
TENANT RULE 5(b).
In addition, a recent decision of the court of appeals has further limited the nature
of tenant "rent related" counterclaims cognizable in Landlord and Tenant Court. See
discussion of Winchester Management Corp. v. Staten, infra.
ther, the Superior Court Rules of Civil Procedure do not include any simpli-
fied procedures for resolving tenant claims.' 0 8
The foregoing disadvantages notwithstanding, the language of Javins was
encouraging to the tenant who had historically been limited to the filing of
a separate action in order to seek redress for a landlord's breach of a lease
covenant or who had to rely on the paternalism of government to prosecute a
landlord for failing to maintain rented residential property in habitable con-
dition. But while it appeared to offer the tenant a full panoply of contract
rights and remedies, this was not the holding in Javins. When read narrowly,
the circuit court's opinion recognized that a breach of the warranty of hab-
itability could be raised only as a defense to an action by a landlord for
possession based on nonpayment of rent. 109
By the time Court Reorganization eliminated the circuit court of appeals
from the appellate route of a superior court decision, the case law permitted
a tenant to defend against eviction from an apartment for nonpayment of
rent, whether or not the action was based on expiration of a notice to quit,
for so long as the dwelling remained in substantially uninhabitable condition.
The dicta in those cases and the amendments to the Housing Regulations
codifying them, however, clearly recognized that civil enforcement remedies
included tenant affirmative actions. The Statement of Policy of the new
amendments included the following language:
It is the intention of this Section to declare expressly a public policy
in favor of speedy abatement of such public nusiances [defined as
leased or rental habitations in violation of the regulations which
constitute a danger to the health, welfare, or safety of the occu-
pants] if necessary by preliminary and permanent injunction
issued by Courts of competent jurisdiction. 1' 0
At present, an affirmative claim against a landlord by a tenant can be
raised in three ways: (1) as a counterclaim, recoupment, or set-off in a land-
lord's action for possession or collection of back rent;"' (2) as a complaint
108. In the case of an emergency, a motion for temporary restraining order may
be brought before the Judge in Chambers or the Emergency Judge. D.C. SUPER. CT.
RULES, LANDLORD & TENANT RULE 12-1(b). Judicial exercise of this equitable power
does not offer a tenant permanent relief, but on the contrary, sets into motion a long
chain of subsequent legal activities in the civil courts. On the other hand, in an action
brought by a landlord in the Landlord and Tenant Court, the judicial exercise of its
equitable power to award possession may provide the plaintiff with permanent relief.
The latter action may be challenged only in the court of appeals.
109. Technically, the court in lavins recognized only the right of a tenant to assert
a set-off in order to reduce the rental obligation, in part or full, when nonpayment of
rent formed the basis of the landlord's suit for possession. 428 F.2d at 1082-83.
110. D.C. Housing Regulations, supra note 11, art. 290, § 2901.5.
111. A counterclaim is an affirmative action for relief. The Landlord and Tenant
for injunctive relief, seeking a temporary restraining order or a preliminary

or permanent injunction, filed as a motion in the Landlord 'and Tenant Branch
where a landlord action against the tenant is pending, or as a separate action
in the Civil Division;1 12 or (3) as a civil action brought in the Civil Division,
Rules authorize counterclaims, which specifically include set-off and recoupment, in

possessory actions based upon nonpayment of rent or joined with a claim for back rent.
D.C. SUPER. CT. RULES, LANDLORD & TENANT RULE 5(b). Thus, a tenant might inter-
pose a claim in a landlord's suit for possession in order to defeat the latter,s action or to
reduce the amount of his rent entitlement, or in some cases, to recover a money judgment.
See id. The rule, however, limits a tenant's counterclaim to that for a money judgment
based on the payment of rent or on expenditures claimed as credits against rent or for
equitable relief related to the premises. Id. Counterclaims for damages are practically
available only where tenant is seeking an amount in excess of that sought by the land-
lord. See FED. R. Civ. P. 13(c).
A set-off is a counter demand asserted to diminish or extinguish the landlord's de-
mand. A set-off is said to arise out of a transaction extrinsic of plaintiff's cause of ac-
tion. It relates, however, to events occurring during the period that the landlord's claim
accrued. 3 MOORE'S FEDERAL PRACTICE § 13.02 n.l.
Recoupment, as distinguished from set-off, is a demand which arises from the same
transaction as the plaintiff's claim. It goes beyond set-off in that it reaches prior
periods, for example, claims occurring during the entire tenancy. It is a defense in the
sense that it cannot justify recovery in excess of the amount claimed by the landlord.
Recoupment has added significance for the tenant because as an equitable defense it is
not subject to the statute of limitations, provided that the landlord's cause of action is
timely. Id.
Counterclaim or set-off presumably include the idea of "repair and deduct" although
the status of this practice in the District of Columbia is uncertain. A specific provision
allowing a tenant to repair and deduct was eliminated from the 1970 amendments to
the Housing Regulations prior to their final passage. This was explained on the grounds
that a tenant's remedies for a landlord's breach of the warranty of habitability included
this right and an amendment to that effect was "considerably more restrictive." See
Daniel, supra note 12.
The dicta in Bell v. Tsintolas Realty Co., 430 F.2d 474 (D.C. Cir., 1970), discussing
a tenant's defense to a protective order, state that among the circumstances which permit
the court to order an amount less than the normal monthly rent to be paid into the court
registry is a tenant's demonstration that "some portion of his potential payment of rent
was instead expended in repairs to the premises." Id. at 484. In support of this posi-
tion the court cited the leading repair and deduct decision of Marini v. Ireland, 56 N.J.
130, 265 A.2d 526 (1970). In the decision in that case, however, the court emphasized
that a tenant was not relieved from payment of rent for the landlord's failure to repair.
Instead, it recognized that a tenant has the "alternative remedies of making the repairs
or removing from the premises upon such a constructive eviction." 56 N.J. at 147, 265
A.2d at 535. If that reasoning is accepted, such a remedy has limited value as an
affirmative tenant claim for it fails to provide a deterrent to a landlord who refuses to
repair, or compensation to a tenant for hardship or injuries incurred during the time be-
fore repairs were undertaken. In addition, this remedy does not provide enough money
to rehabilitate premises containing substantial code violations. (The Uniform Resi-
dential Landlord and Tenant Act includes a limited repair and deduct provision. See
§ 4-103).
112. On this issue the Landlord-Tenant Manual prepared for the Students in Court
Program at Georgetown Law School states:
or the Small Claims Branch if the recovery sought is less than $750. Theo-
retically, a tenant can bring an action in tort for compensatory and possibly
exemplary damages on a negligence 1 13 or nuisance theory.1 14 In addition,
a tenant presumably could sue in contract for restitution, rescission, or refor-
mation on the grounds that the landlord breached the warranty of habitability
or some other lease covenant, or that the lease is void or voidable. 1 15
Two characteristics mark the courts' decisions in the area of tenant affirm-
ative actions. The first is confusion as to the applicability of the newly
recognized contract principles when other more acceptable legal concepts are
also applicable. The decision of the court as to which reasoning to employ
is important to the value of the case as future precedent. The second charac-
teristic of these decisions is resistance by the District of Columbia trial and
appellate courts to full implementation of legal principles that constitute a
radical departure from the common law tradition, and which were handed
down in decisions reversing holdings of the court of appeals. The court of
appeals continues to read narrowly each new circuit court decision in order to
limit the applicability of contract principles to future landlord and tenant
cases. Since these decisions may no longer be appealed as a matter of right to
a higher court, the narrow interpretations are those most likely to be followed
at the trial level. 1 6 In addition, in some cases the court has resisted acquiesc-
Preliminary injunctions represent a means of putting pressure on the landlord

either to do something he should be doing or to refrain from doing something
he should not be doing. Even if an injunction once secured is not always suc-
cessful in producing the result as quickly as desired, the effort is worthwhile
for whatever pressure it brings. When an injunction is outstanding and the
threat of contempt is hanging over his head, the landlord may suddenly choose
to start repairing that furnace or to permit a tenant to enter once again.
Id. at 1000. Although the Landlord and Tenant Branch lacks general equitable powers,
the circuit court, prior to Court Reorganization, recognized the authority of the Landlord-
and Tenant Branch to grant interim relief. Morrow v. District of Columbia, 417 F.2d
728 (D.C. Cir. 1969). This same conclusion was reached by Chief Judge Greene in
Wheeler v. Thompson, 98 Wash. L. Rep. 41 (No. L & T 103875-69, Dec. 9, 1969).
113. For example in Whetzel v. Jess Fisher Management Co., 282 F.2d 943 (D.C.
Cir. 1960), the court's reasoning is grounded on a theory of negligence in which the
criminal statute is a basis for imposing civil liability because the plaintiff's injury was
caused by harm from which the statute sought to protect persons in the plaintiff's class.
114. The Housing Regulations impose a statutory duty, expressly declaring "a public
policy in favor of speedy abatement of such public nuisances ....... Section 2901.5.
The Regulations further require that the premises be maintained "in a clean, safe and
sanitary condition, in repair, and free from rodents or vermin." Section 2304. Injury to
person, property, or value of the leasehold which are proximately caused by violations
of the Regulations should thus be compensable.
115. These theories are based upon the holdings in Brown and Javins and the District
of Columbia Housing Regulations codifying those decisions, supra note 11, § § 2 902.1 (a)
and (b) and 2902.2. Cf. William J. Davis, Inc. v. Slade, 271 A.2d 412 (D.C. 1970).
116. As a result of this resistance, where the applicability of a new decision is at
ing in or adopting decisions handed down after the effective date of Court
Reorganization.
An illustration of the court's confusion in applying newly recognized con-
tract principles in a case in which it recognized the tenant's right to bring
an affirmative action theretofore unknown at common law is provided by
Kline v. 1500 Massachusetts Ave. Apartment Corp.117 In that case the
court could have chosen between relying upon a statutory duty based on
principles of traditional tort law or considering that duty as a contractual
obligation. The reasoning as to which theory it chose remains obscure.
Sarah Kline, a tenant at 1500 Massachusetts Avenue, brought an action
to recover for injuries sustained when she was criminally assaulted in the
common hallway of her apartment house. The court permitted the plaintiff
to recover and, in so doing, departed from the common law doctrine under
which a landlord assumed no responsibility for the acts of third-party in-
truders. In its decision, the court first reasoned that a duty of protection
was owed by a landlord of a modern multiple unit dwelling which arose
from "the logic of the situation itself.""18 This logic being somewhat vague,
the court proceeded to reason that the lease contract implied "an obligation
on the landlord to provide those protective measures which are within his
reasonable capacity."" 9 The opinion next discussed the tenant's right to
expect that the same degree of security as existed when she moved in would
be maintained so long as the rent continued at its original level.' 20 The court
noted that while the original rent had been maintained, the security had de-
creased. 12' Finally, the court concluded that the basis for awarding damages
to the tenant was that the landlord had breached the "standard of care,"
which, for purposes of this case, it defined as the responsibility for main-
taining security in the building.' 22 Not only was it unclear whether tort or
contract principles controlled 28 but the court also implied that the common
issue in a case before the landlord and tenant court, frequently that decision is not con-
strued in favor of a tenant's claim. Thus, on appeal, the tenant begins from the disad-
vantaged position of an appellant before a court reluctant to reverse a decision of the
lower court.
1.17. 439 F.2d 477 (D.C. Cir. 1970).
118. Id. at 483.
119. Id. at 485.
120. Id.
121. Id. at 486.
122. Id. at 486-87.
123. For example, the court at one point stated: "The appellant tenant was entitled
to performance by the landlord measured by this standard of protection whether the
landlord's obligation be viewed as grounded in contract or in tort." Id. at 486.
law doctrine that holds an innkeeper to a higher duty of care was also appli-
1 24
cable to the case of Ms. Kline.
While the importance of each case in which a tenant achieves some re-
covery is not to be minimized, where the reasoning is such as to provide
minimal guidance for reaching the same result in future cases, its value as
precedent is limited. The need for well-supported holdings is important in
light of the resistance of the court of appeals to implementation of the con-
tract law principles which the circuit court has held applicable to landlord-
tenant relationships. This is particularly true for cases that require reversal
12 5
of a trial court in order to reach a conclusion favorable to the tenant.
The first indication that the court of appeals would not be deterred by the
broader implications of Brown, Javins, and the Housing Regulations came
in an opinion reversing a superior court decision granting summary judgment
in favor of a tenant suing to recover rent paid under a lease that was void
because of housing code violations. 1 28 In its decision, the court of appeals
conceded the tenant's entitlement to restitution, but added, "we feel that the
2 7
normal rule denying quasi-contractual recovery should not be followed.'1
124. Id. at 482.

125. For example, a recent decision of the court of appeals held that the rule pro-
hibiting retaliatory evictions was applicable to tenants for a fixed term. In dissenting
from the majority's extension of the rule fashioned by the circuit court, Judge Nebeker
began his opinion: "My colleagues step over established legal principles of property law
in their effort to extend the latter-day rule respecting ulterior motive for eviction." Gol-
phin v. Park Monroe Assocs., 353 A.2d 314, 319 (D.C. 1976) (Nebeker, J., dissenting).
Another illustration of this resistance is provided by the court of appeals decision in
Pernell, which refused to recognize a tenant's right to trial by jury even though breach of
contract had been asserted as a defense to the landlord's possessory action. By way of
explaining its holding, which was subsequently reversed by the United States Supreme
Court, the court of appeals concluded that the circuit court's "suggestion" in Javins that
a modem lease be interpreted as a contract did not intend any seventh amendment con-
sequences for two reasons. First, it argued that the circuit court was really suggesting
that the more appropriate approach was civil law where a jury trial was rarely used. In
addition, seizing upon the language in a footnote of the circuit court's opinion, the court
of appeals stated:
In fact, the author of the [Iavins] opinion goes so far as to declare that the
modem apartment tenant more closely resembles a guest in an inn-for whose
eviction the intervention of a jury has never been required-than the typically
agrarian tenant to whom the common law applied. (citation omitted)
Pernell v. Southall Realty Co., 294 A.2d 490, 497 (D.C. 1972), rev'd, 416 U.S. 363
(1974).
126. William J. Davis, Inc. v. Slade, 271 A.2d 412 (D.C. 1970).
127. Id. at 416. This principle of contract law was recognized in Rubin v. Douglas,
59 A.2d 690 (D.C. Mun. App. 1948), where the court stated that "if the parties are
not in pari delicto and one of them has not been guilty of serious moral turpitude, he
may repudiate the contract and recover what he has paid under it." Id. at 691. In
Miller v. Peoples Contractors Ltd., 257 A.2d 476 (D.C. 1969), the court, following this
Instead, the court held that the landlord was entitled to a set-off from the
tenant's recovery in an amount representing "the reasonable value of the
12
premises in its condition as it was when occupied.'
This decision raised two problems: First, it impliedly questioned the scope
of the holding in Brown, which had appeared to relieve the tenant of an obli-
gation to pay rent under a void contract. Second, it ignored the language
in Javins that the lease should be interpreted "like any other contract," which
appeared to promise the tenant a full panoply of contract remedies. 129 Thus,
the court of appeals made it clear that it would continue to draw a distinction
between the generally recognized principles of contract law and those prin-
ciples that it would apply to a lease agreement when considering what
remedies to make available to a tenant.
This substantive distinction has procedural implications as well. Two new
complications posed by the post-Javins retreat in the area of tenant affir-
mative actions are illustrated in the disposition of Winchester Management
Corp. v. Staten at the trial level and on appeal. 130 In the first instance, the
judicial approach to decision-making in the resolution of the tenants' claims
at the trial level exemplifies the reluctance of the Landlord and Tenant Court
to consider the full implications of treating the lease as a contract. On appeal,
the court of appeals' reversal of that part of the trial judge's decision which
recognized a claim grounded in a contract theory that previously had not
been considered by the appellate courts, illustrates its inclination to avoid
applying the newer precedent. Instead, the appeals court relied upon familiar
principles of property law to limit the nature of tenant counterclaims that
could be raised in Landlord and Tenant Court.
At the trial level in Staten, the landlord sought possession of twenty-four
apartment units based upon the failure of the tenants to pay rent. The actions
principle, reasoned that a wrongdoer should be prohibited from enjoying the fruits of his
illegal agreement. It ordered an unlicensed contractor to make full restitution of all pay-
ments accepted under a home improvement contract entered into in violation of regu-
lations forbidding prepayment to unlicensed contractors, notwithstanding partial comple-
tion of the contracted work.
128. Id.
129. Although Davis was decided before Court Reorganization, this case was not ap-
pealed to the circuit court. In Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.
C. Cir. 1972), that court specifically declined to discuss the applicability of the quantum
meruit theory to its decision permitting a tenant to remain in her apartment rent free
while it was in serious violation of the Housing Regulations. While the issue of re-
taliatory eviction in Robinson was not present in Davis v. Slade, it is arguable that the
underlying philosophy and language of the circuit court's opinion is in conflict with the
earlier holding of the court of appeals in Davis.
130. L & T No. 65215-73 (D.C. Super. Ct., Dec. 6, 1973), rev'd, 361 A.2d 187 (D.C.
1976).
were consolidated and the tenants answered claiming that no money was
owing under two affirmative defenses: breach of warranty of habitability and
void lease ab initio. The trial court found that there was a history of dis-
putes over inadequate services in the building and, in particular, that the
tenants had not been provided with air conditioning and adequate hot running
water on a continuous basis. The court also found that other deficiencies,
having been subsequently corrected, were not "substantial enough to warrant
1
specific findings of rent adjustments."''
The trial court specifically refused to reach the issue of whether the
leases in question were void ab initio as alleged in the tenants' answer, al-
though it gave no reason for doing so. Instead, the court proceeded on
the theory that the landlord had breached the rental contract by failing to
provide hot water and air conditioning as promised in the lease. It therefore
determined that the tenants were entitled to a reduction in the amount of
rent owed under the contract, although it never discussed whether the lack
132
of air conditioning amounted to a violation of the Housing Regulations.
The judge calculated the appropriate amount of deductions to which tenants
were entitled by determining a fixed value of each service per day and relying
on tenants' extensive records as to the number of days they were denied such
service. In each instance, the judge used the minimum figure claimed by
the tenants for the basis of his calculation.
While the outcome was favorable to the tenants, the approach of the court
was backward. The judge first should have addressed the question of
whether the leases were void before he required the tenants to prove the
amount of the rent abatement to which they were entitled. The distinction
is crucial because it determined upon which party the burden of proof
should fall, and also affected the amount of money each party could recover.
Under the rules of procedure that permit alternative pleading, a tenant can
plead affirmatively both that the lease is void and that the landlord has
breached his warranty of habitability. If the court concludes that the lease
is void, the tenant can be relieved of performance, and may, if he files
the appropriate counterclaim, be entitled to restitution.' 3 3 At that point the
131. Id. at 7.
132. The trial judge did acknowledge that the lack of hot water "neatly falls within
the Javins doctrine." Id. at 14. The court of appeals subsequently found that the lack
of air conditioning was not a violation of the Housing Regulations and hence did not
fall within Javins. It therefore denied tenants a reduction in rent for the landlord's fail-
ure to provide that service, notwithstanding the fact that the lease specified an obligation
to do so. The reduction for lack of hot water was upheld. 361 A.2d 187 (D.C. 1976).
133. The tenant can establish that the lease is void ab initio under Brown or its stat-
utory counterpart, D.C. Housing Regulations § 2902.1(a), or that the lease has been
case would end. A landlord who seeks to recover the fair market value of
the premises would have to file a separate action in a forum other than the
Landlord and Tenant Court. The landlord would then bear the burden of
proving the amount of quasi-contractual recovery to which he is entitled.14
On the other hand, if the proof available to tenants is insufficient to prove
that the lease is void, they may still be able to establish that the landlord
has breached the warranty of habitability. In this event, the tenant who as-
serts a set-off or recoupment may be entitled to a reduction in the amount
of rent owed, providing the diminution in value attributable to the breach
can be proved.
While it is not asserted here that the lease in Staten was in fact void, it
is submitted that the appropriate decision-making approach would have been
to address this question. If the leases were void, the landlord's recovery in
quasi-contract would be limited to the minimum number of days for which
he could prove that full services were provided. Instead, the case was ap-
proached from the position that the landlord was entitled to the full rental
value, less the amount designated as compensation for the minimum length
of time that the tenants could prove they were without full services.
This case is not an isolated example. It is unique in that it produced a
well-reasoned written opinion from a sympathetic judge who believed that
the tenants were entitled to some measure of relief. In general, however,
it illustrates the practice of the courts when presented with alternate affirma-
tive tenant claims in the context of a possessory action. In such cases the
courts often fail or refuse to consider the distinction between a void lease
and a breach of warranty and, thus, do not reach the issue of the validity
of the lease. A court that confuses the remedies of restitution and abate-
ment leaves a tenant with the burden of establishing not only the conditions
that render the lease void, but also of negating the landlord's claim that there
has been no diminution of rental value. The tenant may thus be faced with
a situation in which he could prove a landlord breach but still be denied
recovery because the evidence of the value of the loss was too speculative
to enable a jury to determine the diminution in the rental value of the pre-
185
mises.
rendered void by the continuing substantial violations of the Regulations. The latter
provision is a statutory extension of the right to relief recognized in Javins for violations
which arise after the inception of the tenancy.
134. Cf. William J. Davis, Inc. v. Slade, 271 A.2d 412 (D.C. 1970).
135. Cf. Cooks v. Fowler, 459 F.2d 1269, 1271 n.8 (D.C. Cir. 1971). The theory
and method of proving damages that will entitle tenants to partial rent abatement. is
presently a confusing and unsettled area of the landlord and tenant law that will not be
addressed in this article. Notwithstanding this uncertainty, it is submitted that the first
In addition to problems of proof, the "piece-meal approach" of basing the

amount of the abatement upon the value of the individual violations works
against the idea that several serious violations, existing together for an un-
reasonable length of time, may defeat a landlord's entitlement to any rent
for the period of their existence. 136 Theoretically, this could be the case even
though the sum of the values of each individual violation would not total the
amount of the outstanding rental obligation. An additional consequence of
using this approach as the sole basis for determining the diminution in rent
is to foreclose consideration of whether the tenants may have incurred conse-
quential damages during such time as the landlord was in breach of the lease
agreement.
On the cross-appeals of the tenants and landlord from the decision of the
trial judge in Staten,1 37 the court of appeals marked its farthest movement
to date in its post-Javins retreat. Rather than examining the approach of
Judge Norman in applying contract principles to the settlement of landlord
and tenant disputes, the court determined that in certain instances the re-
lationship was not to be considered as purely contractual. The court refused
to read Javins as having "portended a mutual interdependence of the obli-
gation of the tenant to pay rent and any obligation, oral or written, of the
landlord to the tenant.' 3 8 Thus, it concluded that where the landlord
issue to be met is who should bear that burden of proof. In addition to the court's
failure in Staten to recognize the issue of which party bears the burden of proving
the economic consequences of a landlord's failure to provide promised services, the
case poses a question concerning the level of proof required of a litigant. The court
required the tenants to establish the fact of the breach and then limited their recovery
to minimum provable damages. The poor, illiterate tenant, who has been without ade-
quate heat, hot water, and other necessities for a substantial length of time and, in
desperation, withholds rent, or is finally sued after having withheld rent, rarely keeps
the kind of detailed records that permitted Judge Norman to make his calculations in
Staten. That the court system favors the landlord can be seen in the development
of judicial procedures that favor the possibility that, notwithstanding a landlord's breach,
a tenant may be left without a remedy.
136. Under the Housing Regulations a lease can be rendered void by substantial vio-
lations which develop and continue for an unreasonable length of time following the in-
ception of the tenancy. Section 2902.1(b). See note 133 supra.
137. 361 A.2d 187 (D.C. 1976).
138. Id. at 190. The court of appeals chose to cite summary language from the
opening paragraphs of the Javins opinion to support its conclusion that the Warranty of
habitability was to be measured solely by the Housing Regulations. In so doing, the
court ignored language found elsewhere in the circuit court's opinion, which appeared to
express that court's intent that the earlier statement should be given a broader applica-
tion: "In the present cases, the landlord sued for possession for nonpayment of rent.
Under contract principles, however, the tenant's obligation to pay rent is dependent upon
the landlord's performance of his obligations, including his warranty to maintain the
premises in habitable condition." 428 F.2d at 1082.
breached a lease provision that was not a violation of the Housing Regula-
tions, the tenant was not entitled to certain of the rights of action normally
incident to breach of contract.
By limiting the landlord-tenant contractual relationship to the recip-
rocal commitments of the tenant to pay rent in exchange for the landlord's
compliance with the warranty of habitability, the court served notice that the
doctrine of independent covenants had not been abandoned. Based upon
this reasoning, the court concluded that the tenants could not seek a recoup-
ment or set-off from their rental obligation for landlord's failure to provide
the promised air conditioning service. 13 9 The court further indicated that as-
sertion of a counterclaim for damages based upon a non-regulation violation
1 40
would also be inappropriate in a landlord's possessory action.
139. 361 A.2d at 191. The court reasoned that the right of the tenant to withhold
rent is recognized only where there has been a breach of the warranty of habitability
as a result of the existence of housing code violations. It found that the failure of the
landlord to provide air conditioning was not a code violation. It therefore concluded
that the landlord's breach of a lease covenant that was not also a violation of the Hous-
ing Regulations was not a germane defense because it would not be sufficient, in whole
or in part, to defeat the landlord's claim that the tenants unjustifiably failed to pay rent.
The court explained:
In the unique context of a landlord's summary suit for possession, a defense
premised upon a failure of the landlord to perform other obligations is inappro-
priate. Such a failure on the part of the landlord is irrelevant in asserting the
propriety of possessory relief, for a tenant is not entitled to withhold rent based
on any other asserted breach of contract.
Id. at 191-92 n.13.
140. Id. at 192. The court pointed out that the tenants' answer to the landlord's
complaint did not include a counterclaim for money damages. While this fact is tech-
nically true, in that the tenants asserted only a "Javins defense" (see note 109 supra),
it was evident that they sought credit against the rent for the loss of air conditioning.
The language of the court is imprecise as to whether this error in pleading was deter-
minative of the outcome. Upon first glance the court appears to have created a "catch
22":
[W]hen the tenants unjustifiably withheld those portions of the rent which
they asserted to have been equivalent in value to their loss of air conditioning,
they could no longer properly assert a counterclaim for money damages for
that amount. Had the tenants paid those sums, pursuant to their rental obliga-
tion, rather than withhold them, a counterclaim for money damages based upon
such payment might have been available to them in the possessory actions.
Id. The "catch" is in the fact that there would have been no basis for the landlord
to sue for possession because of nonpayment of rent unless the tenants had withheld
rent.
This apparent inconsistency arguably can be explained in either of two ways. The
first is by recalling that the landlord refused to accept the tenants' tender of reduced
rent checks. Thus, the landlord's claim was based upon the tenants' failure to pay an
amount of rent which exceeded the value of hot water and air conditioning; therefore, the
withholding of this excess amount was unjustified. This explanation is unsatisfactory
because the landlord himself was responsible for creating this inequity. He is, therefore,
This decision poses several problems. Not only does it mark a retreat from
the modern trend noted and embraced by the court in Javins, but the deci-
sion to preserve the common law real property doctrines at the cost of limiting
the applicability of contract principles cannot be easily reconciled with the
reasoning found in Javins. The circuit court in Javins indicated that it
was not unmindful of the fact that a landlord-tenant transaction involves a
transaction in land. Nevertheless, it concluded that the relationship would
be better governed by contract principles. The circuit court explained:
The interpretation and construction of contracts between private
parties has always required courts to be sensitive and responsive
to myriad different factors. We believe contract doctrines allow
courts to be properly sensitive to all relevant factors in interpreting
lease obligations.
We also intend no alteration of statutory or case law definition
of the term "real property" for purposes of statutes or decisions on
recordation, descent, conveyancing, creditors' rights, etc. We con-
template only that contract law is to determine the rights and obli-
gations of the parties to the lease agreement, as between them-
selves. The civil law has always viewed the lease as a contract,
and in our judgment that perspective has proved superior to that
4
of the common law.1 '
profiting by his wrongdoing in that the tenants are deprived of raising a counterclaim
that would complicate his possessory action. Cf. Rubin v. Douglas, 59 A.2d 690 (D.C.
Mun. App. 1948). See also Lalekos v. Manset, 47 A.2d 617 (D.C. Mun. App. 1946).
In that case, the court reversed a directed verdict for the landlord where the latter
brought an action after refusing an offer of partial rent from tenants who had been able
to occupy only one of the three floors in the building that they had leased.
A second possible explanation is that the court might permit a tenant to counterclaim
for a landlord's non-code related breach of contract provided that his premises also con-
tain defects that qualify as code violations justifying the withholding of rent. This ex-
planation is not wholly satisfactory either. In effect, it would create a situation in which
the tenant profits from having code violations. Furthermore, as pointed out in the dis-
sent. such a limitation on rent-related counterclaims is contrary to the established case
law that requires the trial court in a landlord's action based on nonpayment of rent to
make a finding as to the amount of rent, if any, owed by the tenant. 361 A.2d at 193
(Fickling, J., dissenting). The effect of this interpretation would be that a court could
only make an accurate determination of the amount of rent owed in cases where the
tenant is "fortunate" to have code violations existing on his premises.
While these explanations technically defeat the "catch 22," the court leaves little
doubt that it does not favor counterclaims that raise independent claims based upon
breach of contract. Although the court disclaims the need to consider the merits of such
actions, it states in a footnote: "We decline to further defeat the summary nature of
a possessory action by sanctioning the resolution therein of additional claims which the
tenant might seek to interpose." Id. at 192 n.14. The only effect of such an interpreta-
tion by the court will be generally to discourage a tenant from pursuing a claim.
141. Javins v. First Nat'l Realty Corp., 428 F.2d at 1075 n.13.
Notwithstanding this language, the court of appeals in Staten, acting now as

the highest court of local jurisdiction, appears to have resurrected the doctrine
of independent covenants. In its opinion, this common law doctrine is only
to be set aside insofar as a particular case involves violations of the Housing
Regulations. The court thus upheld that portion of the rent abatement based
upon lack of hot water, but refused to allow a reduction for the failure to
provide air conditioning.
The above-cited language from Javins also appears at odds with the court
of appeals' reasoning that a precise definition of the warranty of habitability
was needed in order to achieve consistent results in all future cases, regardless
of the equities in individual cases. The court argues that the Housing Regu-
lations provide mandatory, detailed, precise and easily understandable mini-
mum standards for measuring habitability. This precision, in its opinion, is
preferable to "leaving it to the whim of the tenant and the discretion of the
trial court to determine what does and does not constitute a habitable
dwelling for purposes of the landlord's warranty .... ,,142
In addition, the court's restrictive definition of the warranty of habitability
ignores two other significant aspects concerning the Javins decision. The first
is the circuit court's reasoning by analogy to the Uniform Commercial Code
warranties of merchantability and fitness for a particular purpose. 143 Specif-
ically, in the case of merchantability, the Code makes it clear that the stand-
ards set out as a minimum definition144 do "not purport to exhaust the
meaning of 'merchantable' nor to negate any of its attributes not specifically
mentioned in the text of the statute .... -145 Similarly, while the Javins
court fashioned a warranty of habitability measured by the standards of the
Housing Regulations, its reasoning does not support the idea that its intention
was to foreclose consideration of other features of habitability.
The court of appeals' reasoning also fails to take account of the legislative
amendments to the Housing Regulations enacted after Javins.146 The court
in Staten adopts a definition of the warranty of habitability based upon its
interpretation of a 1968 decision that in turn was based upon regulations as
they existed at that time. The court does not even acknowledge that the
District of Columbia City Council amended those regulations in 1970. It
thus appears that the court, in searching for its theoretical body of consistent
principles, has in reality, only raised additional questions.' 47
142. Winchester Management Corp. v. Staten, 361 A.2d at 191.

143. U.C.C. §'§ 2-314, 2-315.
144. U.C.C. § 2-314(2)(a)-(f).
145. Id. at Official Comment 6.
146. Effective date June 12, 1970, Order of the Commissioner No. 70-220.
147. It is not meant to suggest here that the amendments did in fact alter the nature
One other important implication of the court's opinion in Staten should not
be overlooked. When that decision is read together with other procedural
considerations, the tenant appears to be caught in a procedural squeeze. On
one hand, the court has served notice that the Landlord and Tenant Court
will not necessarily entertain those counterclaims which, under the Federal
Rules of Civil Procedure, would be designated as "mandatory." '1 48 On the
other hand, it has refused to assure the tenant the right to file an independent
claim after an action in the Landlord and Tenant Court has been concluded.
Rather than reading the landlord and tenant counterclaim rule as author-
izing counterclaims which arise out of the subject matter upon which
the landlord's action is based, the court has decided that relief for a non-
code contractual breach should be sought by the tenant in a different forum.
To reach this conclusion, the court places emphasis on the landlord's need for
the prompt resolution of this claim. It does not consider, however, the prob-
ability that the tenants might be deterred from pursuing their claims if re-
quired to initiate an action in a different forum. While the disadvantages
faced by a landlord in the "already-impeded and overburdened summary pos-
sessory proceedings"' 149 are not to be minimized, the court does not address
the issue of whether allowing these tenant claims would in fact add any signif-
icant complications. The problems of expense and delay and the additional
procedural complexities faced by a tenant in filing a civil action are ignored
by the court. The sole reference to these problems is found in a footnote
to the court's decision in Staten: "We perceive no unwarranted burden on
the tenant resulting from our holding which would outweigh the effect an op-
posite holding would have- . ."60 This unexplained conclusion is not in
of the warranty. It is submitted however, that in view of the court's narrow reading
of Javins, it was obligated to discuss whether the changes in the Regulations had any
effect on the nature of the warranty of habitability.
148. The District of Columbia Court Reorganization Act of 1970, D.C. Code § 11-
946 (1973), specifies that the Superior Court is to conduct its business according to the
Federal Rules of Civil Procedure. FED. R. Civ. P. 13(a) defines a "compulsory counter-
claim" as any claim which arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim. The Landlord and Tenant Branch does not incor-
porate Rule 13 into its rules, presumably because of the summary nature of the proceed-
ing and the absence of any provision requiring a tenant to file an answer. The rules,
however, do permit a tenant to file a counterclaim in certain cases. D.C. SUPER. Cr.
RULES, LANDLORD & TENANT RULE 5(b). See note 111, supra. While the Court Reor-
ganization Act grants to the Superior Court the power to modify these Federal Rules ac-
cordingly, there was no indication prior to Staten that the reasons for not incorporating
Federal Rule 13 into the Landlord and Tenant Rules was intended to prevent that court
from exercising its discretion to entertain a counterclaim of a mandatory nature.
149. Winchester Management Corp. v. Staten, 361 A.2d at 192 n.14.
150. Id.
keeping with the court's responsibility to balance the interests of landlords and
tenants in determining the nature of the summary proceeding. The need to
perform this function was addressed by the United States Supreme Court in
its decision in Pernell,recognizing the right of tenants to a jury trial:
Some delay, of course, is inherent in any fair-minded system of jus-
tice. A landlord-tenant dispute, like any other lawsuit, cannot be
resolved with due process of law unless both parties have a fair
opportunity to present their cases. Our courts were never intended
to serve as rubber stamps for landlords seeking to evict their
tenants, but rather to see that justice be done before a man is
5 1
evicted from his home.'
In addition to its failure to balance the needs of both parties to a landlord-
tenant dispute, the court of appeals' new interpretation of the counterclaim
rule ignores available guidelines for determining which claims it should per-
mit. The court admits that the Landlord and Tenant Rule itself provides
no guidance with respect to the nature of the claims cognizable.' 5 2 The ef-
fect of the court's decision is to bar the Landlord and Tenant Court from
entertaining counterclaims defined under those rules as mandatory, even
though such claims arise out of the subject matter upon which the landlord's
claim is based. The court has therefore ignored the considerations behind
the Landlord and Tenant Rule, as well as the present trend of the case law
towards recognition of full contract rights for tenants, and has excluded any
discussion on the impact which a different result might have upon the inter-
ests of the parties.
While limiting the nature of tenant counterclaims on the one hand, the
court on the other has indicated that it may limit the tenant's opportunity
to file an independent action. The court has specifically refused to assure
the tenant that he retains the right to file an independent action arising out
of the subject matter of a landlord's possessory action following disposition of
that action by the Landlord and Tenant Court.
The issue arose in the case of Tutt v. Doby,' 5 3 decided by the circuit court
after the effective date of Court Reorganization. Reversing the court of
appeals, the circuit court ruled that a tenant who had not been personally
served in a previous possessory action was not estopped from litigating the
issue in a subsequent action brought by the landlord. 54 Shortly after this
151. Pernell v. Southall Realty Co., 416 U.S. 363, 385 (1974).
152. Winchester Management Corp. v. Staten, 3161 A.2d at 191-92 n.13.
153. 459 F.2d 1195 (D.C. Cir. 1972), rev'g 265 A.2d 304 (1970).
154. The landlord sought to collect the amount of unpaid rent which had been the
subject matter of his possessory action, and the tenant filed a set-off and counterclaim.
An earlier action filed in the Landlord and Tenant Court had ended in a default judg-
ment against the tenant who subsequently vacated the premises.
decision was handed down, however, the court of appeals labeled as an "open
question" the issue of whether a prior judgment for possession would have
a res judicata effect on a tenant's affirmative action to recover back rent or
on his affirmative defense to defeat the landlord's action to collect unpaid rent.
The court explained that part of the reason the issue remained unsettled was
due to "the absence of any holding by this court acquiescing in or disagreeing
with Tutt v. Doby."' 55
Thus, to preserve the nature of the summary proceedings in the Landlord
and Tenant Branch, the court of appeals has decided not to permit tenants to
seek affirmative relief in certain cases, even though such claims would be con-
sidered mandatory counterclaims elsewhere in the court system. At the same
time, the court has indicated that independent tenant actions may be barred
if filed subsequent to the conclusion of the summary proceedings in Landlord
and Tenant Court. At present the only certainty appears to be that a tenant
may file an independent action in another forum prior to the conclusion of
the landlord's possessory action. Thus, in theory at least, a tenant could be
involved in two separate but related trials at the same time. While the sub-
ject matter and parties in each case would be essentially the same, in one
action .the tenant would be a defendant and in the other, a plaintiff.
2. Unexercised Government Authority to Protect Residential Housing
The statute books of the District of Columbia contain legislative authori-

zation for governmental action to protect private residential housing. These
provisions may serve as the basis for civil action alternatives to criminal en-
forcement of the housing regulations. They are catalogued here for purposes
of illustrating both the present powers of the executive branch of government
and potential jurisdiction of the judiciary should it have a cooperative plain-
tiff.
The District can order a residential building to be vacated immediately
when it determines that the structure is unsafe for habitation. 156 The
Housing Regulations allow the District to announce its intention to order that
155. Pernell v. Southall Realty Co., 294 A.2d at 497 n.22. The court of appeals does
refer to Tutt v. Doby in its decision in Staten. The former case is cited in support of
the proposition that the power of the trial court to assess the amount of rent owed by
a plaintiff in the context of a summary possessory proceeding does not give rise to an
expanded authority simultaneously to adjudicate all conflicting claims between a landlord
and a tenant. 361 A.2d at 192 n.13. The dissent in Staten argued that the trial court's
authority to determine the amount of rent owed meant that the tenant could assert any
defenses he claimed as credits against that amount. Id. at 194 (Fickling, J., dissenting).
The court however, does not alleviate the confusion as to when a tenant may or must
file an affirmative claim.
156. D.C. Code § 5-508 (1973).
a building be vacated within thirty days unless conditions are corrected. 15 7 In

less than emergency situations, the District can order repair or condemnation,
in which case the owner is given six months to repair or demolish the pre-
mises. 158 If the owner fails or refuses to undertake the ordered repairs, the
District is authorized to make them at its own expense and to assess the cost
against the property as a tax or a fine. 159 Admittedly these powers have
limited value for tenants, particularly where a housing shortage exists. At
a minimum, compliance with these orders will require that the building be
vacated. Further, there is the possibility that the end result might be
demolition of the structure, which would further reduce the housing supply.
Perhaps potentially the most useful statutory authority is the power of the
District to order code compliance. 1 60 The District is further authorized to en-
force its order where an owner fails to comply by undertaking the necessary
work and assessing the costs against the property as a tax.' 6 ' One commen-
tator has observed that "[tihis remedy could offer rapid and systematic
repair of deteriorating slum properties, but the power has seldom been used,
16 2
largely for want of funds to finance repair costs.'
157. D.C. Housing Regulations, supra note 11, § 3301.

158. D.C. Code § 5-618 (1973).
159. D.C. Code §§ 5-622, 631 (1973). The latter provision specified criminal penal-
ties for failure to pay the assessed lien. Since FY 1970 the funds appropriated for
demolishing or rendering buildings sanitary pursuant to D.C. Code § 5-622 have totalled
$697,329, of which $342,075 actually has been spent. These funds were spent to
demolish or rehabilitate 489 buildings. D.H.C.D. Statistics, supra note 29, at 5-6.
See also note 162 infra.
160. D.C. Code § 5-315 (1973).
161. D.C. Code § 5-313 (1973). Since 1972 when this section was separately
funded, $635,500 has been appropriated. The District has spent $462,875 of this money
to abate code violations in 806 cases. D.H.C.D. Statistics, supra note 29, at 5-6. In FY
1976 the expenditure of appropriated funds increased by more than 150% over any
previous year. Id.
162. Daniel, supra note 12, at 919. This observation was made in 1970. At that
time, although the provision had been on the books for 64 years, it had not yet been
funded. As noted above, the District has begun to appropriate and expend money
pursuant to this and other sections of the D.C. Code which authorize the government
to direct that housing improvements be performed. See notes 159 & 161 supra.
In addition, since 1970 the District has levied fines in the amount of $922,120.13 for
work performed pursuant to D.C. Code §§ 5-313, 622. Of that amount, $537,944.91
has been collected. This latter figure, however, does not include money redeemed
through tax sales. The D.C. Department of Finance and Revenue estimates that if the
collection figure reflected (1) the amount of taxes or liens redeemed at the time of the
tax sale and (2) the fact that the assessments are payable in three installments over a
two-year period, collections might eventually be as much as 99.9% of the initial levies.
See Memorandum to D.C. City Council Committee on Government Operations, Depart-
ment of Finance and Revenue, at 7 (Feb. 16, 1977). One weakness of the program
lies in the budgetary process, which requires that recovered funds be returned to a
This provision was invoked in 1970 by the United States District Court
for the District of Columbia as a basis for ordering the Mayor to insure that
the tenant-plaintiffs, residents of a substandard apartment complex, were pro-
vided gas and electricity free of charge.' 63 The case had come before the
court on plaintiffs' motion for injunctive relief to prevent the discontinuation
of their utilities services. Government assistance was sought after the land-
lord stopped collecting the rent and honoring the utility bills following plain-
tiffs' filing of a civil action against him.
The court's reasoning for granting the preliminary injunction pendente lite
is significant for the burden it placed on the District government. Although
it acknowledged that failure to provide adequate utilities is a violation by the
landlord of the Housing Regulations, the court found that the District shared
a "heavy responsibility for the conditions that have brought this nuisance
about. .... ,,164 The court determined that the municipality had the inherent
power to abate public nuisances, but it also noted that there were statutory
provisions which allowed the District to correct Housing Regulation violations
and recoup the costs as a tax lien. 165 Thus, it concluded that since the Dis-
trict under the present circumstances possessed "both the best means and
opportunity to protect the public interest, equity require[d] that this obli-
gation be placed in the first instance on the municipal authorities."' 166 The
importance of this opinion, however, also lies in what the court noted the
District did not and could not do:
The city has no authority to take over structures by way of re-
ceivership and operate them at city expense for the public good.
Lacking funds, the city administration has apparently determined
to tolerate substandard housing, marginal conditions of safety and
sanitation, and the overreaching habits of certain landlords simply
because the necessary resources to stop the inexorable blight of the
inner city have not been provided.
. . . Maintenance of proper conditions of safety and sanitation is
an essential responsibility of good government. Enforcement of the
housing laws and regulations would have prevented the present
67
situation from arising.1
general fund and be reappropriated before other repairs may be made, rather than
directing the collected money into a revolving fund. See note 29 supra.
163. Masszonia v. Washington, 315 F. Supp. 529 (D.D.C. '1970).
164. Id. at 5,33.
165. It is noted that a separate provision allows the District a lien for unpaid water
charges. D.C. Code § 45-4524(c) (1972).
166. Masszonia v. Washington, 315 F. Supp. at 533.
167. Id. at 532. The largest amount spent by the District on properties owned for
a multiple-property landlord pursuant to this provision of the Code reportedly totaled
IV. EVALUATION AND PERSPECTIVE OF THE PRESENT STATUS OF

THE EVOLUTIONARY DEVELOPMENT OF LANDLORD-TENANT LAW
The judicial development of the legal doctrines that govern landlord and
tenant relationships detailed in the preceding sections follows a pattern not
unlike that observed by Newton in his Third Law of Motion, to the effect
that for every action there is an equal and opposite reaction. The distinction
between the scientific and legal perceptions of forward motion, however, lies
in the "opposing force;" the reaction is not equal. What the circuit court
pronounced in broad terms, the court of appeals narrowed in scope and
limited in subsequent application. But it has neither abandoned nor erased
the impact of the former court's decisions. The formulation of legal doctrines
applicable to a twentieth century urban American setting-continues.
Although it may be somewhat unsettling, particularly to those who must
order their activities based upon these judicial pronouncements, this process
is legitimate. Both the courts' creation and use of precedent, in most in-
stances are within what Karl Llewelyn identifies as "the leeways of prece-
dent." '168 In one respect, the growth pattern of the case law in this area
is a documentation of the judicial process in action. As Justice Cardozo ob-
served in his essay on The Nature of the Judicial Process: "For every ten-
dency, one seems to see a counter-tendency; for every rule its antinomy.
Nothing is stable. Nothing absolute. All is fluid and changeable. There
is an endless 'becoming.' "169
Within the evolutionary process to date, four forces can be identified as
creating a conceptual framework for analyzing judicial responses to future
developments in this area of law. Each addresses an aspect of the process
and its impact upon judicial decision-making. Together they embody the
tension which is a creative force in the development of legal doctrines appli-
cable to the perceived needs of present society. 17O While each force is inte-
over $19,000. The repairs were performed by a private contractor at the direction of
District government officials over a thirteen month period beginning in January, 1975.
See Housing Violator No. 1, Washington Post, Feb. 15, 1976, § A, at 1, col. 1. See
also discussion on enforcement by criminal prosecution, pp. 465-71 supra.
The City Council has recently passed legislation which would authorize the mayor to
assess a lien of up to twice the amount of the actual cost of the repairs. The enactment
of this penalty provision is intended to encourage landlords to cause the repairs to be
undertaken rather than waiting for the city to do so. While the constitutionality of such
an enforcement scheme remains questionable, the mayor allowed the bill to become law
without signing it. The Nuisance Elimination Act of 1976, Council Bill No. 1-303, 23
D.C. Reg. 5949, amending D.C. Code § 6-902 (1973).
168. K. LLEWELYN, THE COMMON LAW TRADITIoN: DECIDING APPEALS 77-91
(1960).
169. B. CARDozo, THE NATURE OF THE JUDICIAL PROCESS 28 (1921).
170. Of this process, Justice Cardozo has observed: "The changes, as they were made
grated with the next, they can be separately identified as: 1) the judicial
intuition of public policy which serves as both an affirmation and a goal; 2)
the political, social, and economic realities which limit the ability of the
common law alone to effectuate the policy; 3) the challenge to and by the
courts to continue to transcend these limitations; and, 4) the tendency to-
wards judicial creation of a motivating force that will incite forces outside
the judiciary to bring about change in accordance with avowed public policy.
Examination of each aspect of the process also provides a basis for under-
standing the interrelationship of the substantive law and the mechanism for
1 71
settlement of landlord and tenant disputes.
The first aspect of this evolutionary process concerns the nature of public
policy with respect to private residential housing and its affect upon the land-
lord-tenant relationship. In classic terms it is the interaction between the
legislative process and judicial recognition and development of the "situation
72
sense."1
Judicial definition of public policy in the area of housing is probably among
the earliest contributions to the evolutionary process of the modern body of
law. In 1921, Justice Holmes, in -the Supreme Court decision upholding the
District of Columbia Rent Control Statute, declared: "Housing is a neces-
sary of life. All the elements of a public interest justifying some degree of
public control are present.' 73 Some years later, shortly after Congress au-
thorized funds for "urban renewal," which provided the incentive for the de-
velopment of modern housing codes, the Supreme Court recognized that:
[t]he need to maintain basic, minimal standards of housing, to pre-
vent the spread of disease and of that pervasive breakdown in the
fiber of a people which is produced by slums and the absence of
the barest essentials of civilized living, has mounted to a major con-
74
cern of American government.
in this case or that, may not have seemed momentous in the making. The result how-
ever, when the process was prolonged throughout the years, has been not merely to sup-
plement or modify; it has been to revolutionize and transform." THE NATURE OF THE
JUDICIAL PRocEss, supra note 169 at 27-28.
171. This subject will be addressed in a sequel to this article which will appear in
the next issue of the Catholic University Law Review. See Prefatory Note, supra.
172. According to Llewelyn, the term "situation-sense" serves "to indicate the type-
facts in their context and at the same time in their pressure for a satisfying working
result, coupled with whatever the judge or court brings and adds to the evidence, in the
way of knowledge and experience and values to see with, and to judge with." THE COM-
MON LAW TRADrTION, supra note 168, at 60. In the context of deciding appeals, the
courts resort to situation-sense "as a guide for testing, for phrasing, for redirecting the
applicable rule or principle: the steady and required judicial review of prior judicial de-
cision." Id. at 260.
173. Block v. Hirsh, 256 U.S. 135, 156 (1921).
174. Frank v. Maryland, 359 U.S. 360, 371 (1959).
Not long afterwards, the riots of the 1960's made it painfully obvious that
when some members of a community are permitted to live in unsafe and un-
sanitary dwellings, it is detrimental to the well-being of that society and the
national populace as a whole.
The recognition that decent shelter is essential, both for the survival of the
human being and of the society, necessarily required judicial intervention-
in the name of public policy-into what had been until then a purely private
landlord-tenant relationship. Recognition that the law provided certain pro-
tections for the tenant meant that it placed limits upon the landlord's freedom
to manipulate without restriction both the housing quality and quantity within
the so-called "free market" system. The shift in the "situation-sense" from
real estate to housing, and in operative legal doctrines from common law real
property to principles of contract law, provided a new framework within
which the private landlord and tenant relationship could function. 175 In the
interests of reaching a just result in a particular dispute, it became repeatedly
necessary for the appellate courts to sanction instances of legislative and judi-
176
cial interference with the freedom of private parties to operate.
The second aspect of this process involves the combination of forces that
restrict the ability of the law, as common law, to effectuate the purposes of
the announced public policy. An understanding of this operative force re-
quires that a distinction be made between the substantive nature of the pre-
sent and potential legal doctrines and the effect of their implementation and
enforcement. This dichotomy was recognized by the National Advisory
Commission on Civil Disorders which concluded:
The Uniform Residential Landlord-Tenant Act or even the pro-
gressive pro-tenant state laws of New Jersey, Illinois, or Washing-
t6n, D.C. have done little or nothing to alleviate the hardships on
175. Compare Llewelyn:

Thus to urge the primacy of the problem-situation as a type . . . [is] to insist
that a court should seek to channel the impetus from the concrete, to channel
it into a search for a situation-pattern of significance which can be somewhat
worked over for its general sense and tendency so as to test the wisdom of let-
ting the equities of the fireside prevail or even count; and, if they should be
so permitted, then to capitalize their poignancy or illustrative power to produce
a bit of sounder law for that whole situation.
THE COMMON LAW TRADITION, supra note 168, at 270.
176. For example, in Javins the court held that urban residential leases contained an
implied warranty of habitability. The right of a landlord to evict a tenant at the end
of the lease term was restricted in cases where the landlord acted out of retaliatory mo-
tives. Edwards v. Habib, 227 A.2d 388 (D.C. 1967), rev'd, 397 F.2d 687 (D.C. Cir.),
cert. denied, 393 U.S. 1016 (1968). In addition, the parties were not permitted to in-
clude provisions in the lease exempting or limiting the landlord's tort liability or waiv-
ing compliance with the Housing Regulations, cited supra note 11, §§ 2906, 2912.
low and-moderate income tenants caused by the inadequate supply

of affordable, habitable housing and commensurate lack of bar-
177
gaining power of such tenants.
Neither the full implementation of progressive laws nor the vigorous enforce-
ment thereof can, without more, eliminate the slums or solve their root
causes.
An additional factor which contributes to the tension between formulation
and implementation of legal doctrines is the paradox, in the law itself which
has helped to foster the slum housing dilemma. Enforcement of the law
against slum landlords intensifies the low-cost housing shortage, but the
failure of effective enforcement perpetuates slum conditions, preserves the
status quo, and thus avoids generating the intense public pressure needed for
legislative action. The limitations of the law were acknowledged by the
drafters of the Model Residential Landlord-Tenant Code and the later Uni-
form Act. Included in the Introduction to the Model Code was the dis-
claimer that: "[N]o mere law reform will bring about the massive injec-
tions of public money, or the modernization of the home building industry
or the equalization of poor tenants' economic ability to pay . . . . [It] is
178
not, and cannot be, a panacea for poverty.
Recognition of these limitations however, does not eliminate the necessity
of using the judicial process to accomplish certain operative goals relating to
a circumstance of particular equities. The tension between the limitations
of legal doctrine to solve the underlying social and economic problems and
the responsibility of the court to apply and shape that doctrine so as to
achieve what the decision-maker perceives to be a just result for -a particular
set of litigants, can be a creative force. 179 The third aspect of the evolution-
ary process, therefore, focuses on the essential role which the courts have as-
sumed in furthering development and reform of the landlord and tenant law.
There are two elements of this undertaking: the courts have been challenged
to continue the present evolutionary process of the law, and they have sought
to challenge those conditions which breed and maintain injustice within the
legal system.
177. REPORT OF THE NAT'L ADVISORY COMM'N ON CIVIL DIsoRDERs 472 (Bantam
ed., 1968).
.178. AMEUCAN BAR FOUNDATION, MODEL PROPOSED RESIDENTIAL LANDLORD AND
TENANT CODE (MODEL CODE), Introduction 10,(1969).
179. Consider Justice Cardozo's insight on the responsibility of the courts. "[Once]
the precedent is known as it really is," he writes, "only half or less than half of the
work has yet been done. The problem remains to fix the bounds and tendencies of de-
velopment and growth to set the directive force in motion along the right path at the
parting of the ways." B. CARwozo, THE NATURE OF TE JUDICIAL PRocEss 30 (1921).
While this role cannot be assumed without acknowledging the limitations

upon its potential for accomplishing the articulated policy, it is nonetheless a
significant force in the evolutionary process. The observation of Professor
Florence Wagman Roisman, an experienced and skilled practitioner in the
area of the District of Columbia housing laws, is particularly noteworthy:
Our housing problem is a political problem that will be resolved
ultimately in the legislatures-or on the streets. But one of the
ways in which we can help tenants to achieve and assert the polit-
ical leverage that they need is to vindicate what rights they do
have in the courts.' 8 0
The challenge to and by the courts is to be creative. The approach to
decision-making in furtherance of this objective is twofold. The first involves
the logical extension of the law in this area, based upon the recognition that
existing legal doctrines within the perceived "situation-sense" are applicable
to the particular equities of a given case.' 8 ' The second requires creation
180. Roisman, Tenants and the Law, 20 AM. U.L. Rev. 58, 73 (1970).
181. An example of this practice would be for the court to hold that it will invoke
the principles of good faith and unconscionability in order to determine the validity of
the lease agreement and the allocation of the burden of proof when a dispute between
landlord and tenant arises. For discussion of the applicability of the U.C.C. provisions
on good faith (§ 1-203) and unconscionability (§ 2-302) see Uniform Residential Land-
lord and Tenant Act, §§ 1.302 (Obligation of Good Faith), 1.303 (Unconscionability);
Javins v. First Nat'l Realty Corp., 428 F.2d 1071 (D.C. Cir.), cert. denied, 400 U.S.
925 (1970). Cf. K. LLEWELYN, THE COMMON LAW TEADrroN, supra note 168.
Llewelyn argues in favor of extending the applicability of U.C.C. provisions to other
contracts not covered by these sections, and of considering good faith in the determina-
tion of unconscionability. Id. at 360-72.
Discussion of the doctrine of unconscionability can be found in Williams v. Walker-
Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), and Henningsen v. Bloomfield
Motors, 32 N.J. 358, 161 A.2d 69 (N.J. 1960) (including discussion of public policy
considerations). Generally, where the circumstances at the time of entering into a
contract were such that there was a lack of meaningful choice on the part of one party,
and where the contract terms are unreasonably favorable to the other party, the court
may refuse to enforce the contract.
In a case between landlord and tenant, the critical housing shortage, the inequality
in bargaining power, the form lease containing provisions which violate the Housing
Regulations or which are phrased in an attempt to circumvent them, may negate the
meaningfulness of choice and may cause execution of a contract so one-sided as to be
unconscionable. Where the court refuses to enforce the agreement or declares it void
in the context of a possessory action, the landlord's claim would be dismissed. To re-
cover back rent or a set-off from tenant's suit for restitution, under a quasi-contractual
theory, the landlord must bear the burden of proof of value. Cf. Brown v. Southall
Realty, 237 A.2d 834 (D.C. 1968); William J. Davis Inc. v. Slade, 271 A.2d 412 (D.C.
1970). In the District of Columbia, although the regulatory language is clear, see D.C.
Housing Regulations § 2912, the cases are in conflict as to whether inclusion of an
illegal provision in a lease voids the agreement in toto. Compare Park Monroe v.
Watson, L & T No. 112057-73 (D.C. Super. Ct., May 28, 1974), and Park Monroe
of new obligations and remedies by analogizing to the legal and equitable

principles of other areas of law.1 8 2 The benefits of such a venture would
not be inconsequential. The short-term effects would include the possibility
that tenants, either individually or as a class, might experience on occasion
a part of the government "system" responding to their avowed needs. On
a more tangible level, in isolated instances it may mean improvement, al-
though most likely temporary, in their actual housing situation. In the long-
Assoc. v. Parker, L & T No. 83199-74 (D.C. Super. Ct., June 28, 1974) (both cases
voiding the leases) with Park Monroe Assoc. v. Levenberry, L & T No. 61962-74 (D.C.
Super. Ct., Sept. 1974) (striking only the illegal parts from the same lease).
182. For example, in addition to the application of the doctrines of good faith and
unconscionability, discussed supra note 181, it can be argued that by analogy to the Uni-
form Commercial Code, § 2-103(b)(1), the landlord should be held to the good faith
requirement of a merchant. In such a case, in addition to honesty in fact, the landlord
would be required to observe "reasonable commercial standards of fair dealing in the
trade." See U.C.C. § 2-103(b) (2). Adoption of this standard would have wide-ranging
implications. For example, where it can be shown that thestandard commercial practice
of landlords is to permit monthly tenants to remain in possession indefinitely, the arbi-
trary termination of a particular tenant would require the landlord to prove a bona fide
reason for eviction, rather than requiring the tenant to prove a defense which fits within
the retaliatory eviction doctrine. Cf. D.C. Housing Regulations, § 2910; Edwards v.
Habib, 227 A.2d 388 (D.C. 1967), rev'd, 397 F.2d 687 (D.C. Cir.), cert. denied, 393
U.S. 1016 (1968); Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.C. Cir.
1972). Termination by a landlord in order to avoid making repairs which he is obli-
gated to perform, or a decrease in services without a corresponding rent reduction, would
not necessarily be acceptable reasons, absent a showing of legitimate business purpose.
An extension of this principle is what Professor Roisman argues should be the next
warranty recognized by the courts. She terms it "the implied warranty of continuity."
Under such a warranty, in the absence of a tenant breach, the tenant would be permitted
to remain in possession. The landlord could terminate where he could prove a legiti-
mate business reason. While a similar provision is normally part of a rent control pro-
gram, even in the absence of such legislation, it may be appropriate to analogize to the
policy behind that part of the program. At a minimum, the warranty of continuity
might be invoked for purposes of shifting the burden of proof to the landlord to give
a reason for seeking eviction in a case not based upon nonpayment of rent. In favins
where the circuit court fashioned the implied warranty of habitability drawing an anal-
ogy to the U.C.C. warranties of merchantability and fitness for a particular purpose
(§ 2-314 and § 2-315, respectively), the court implied that the tenant vis-a-vis the land-
lord was in a position much like that of the buyer who "must rely on the skill and hon-
esty of the supplier." 428 F.2d at 1075.
A further step in the direction of this new warranty was taken recently by the court
in Golphin v. Park Monroe Assocs., 353 A.2d 314 (D.C. 1976). In that case the
court reversed the trial judge's award of possession to the landlord based solely upon
the finding that the lease had expired. The court of appeals held that it was error
to exclude evidence that the landlord's established practice was to permit tenants to re-
main as month-to-month tenants after expiration of their lease term, where such evi-
dence tended to support the defendant's contention that his eviction was motivated by
retaliation.
For another example of creating new legal doctrines by analogy to established legal
principles, see discussion of "slumlordism" as a tort, infra note 190.
run, the implementation of such court decisions should impact upon the fi-
nances of the "monied interests,"'1 83 such as landlords, mortgage-holding
banks, government bodies, and taxpayers, in such a manner as to create the
84
conditions precedent to legislative action in the housing area.'
Despite its inherent conflicts and limitations, this analysis recognizes that
the judiciary is the branch of government that responds most directly to the
183. See, e.g., Connor v. Great Western Sav. & Loan Ass'n, 69 Cal.2d 850, 447
P.2d 609 (Cal. Sup. Ct. 1968). In that case the California Supreme Court, en banc,
reversed a nonsuit in favor of the defendant savings and loan which had provided the
funds for construction of a housing development. In a decision written by Justice Tray-
nor, the court held that the defendant had breached a duty recognized by the tort law
to the homebuyers in that development. It defined that duty as the exercise of reason-
able care to protect them from damages caused by major structural defects. In addition
to the "traditional" findings relating to the standard duty of care in a tort case, the court
found that substantial moral blame attached to the defendant's conduct. It thus con-
cluded: "The admonitory policy of the law of torts calls for the imposition of liability
on Great Western for its conduct in this case. Rules that tend to discourage misconduct
are particularly appropriate when applied to an established industry." id. at 618.
This case was noted by Judge Wright in Javins. He observed that "following the de-
velopments in other areas, very recent decisions and commentary suggest the possible
extension of liability to parties other than the immediate seller for improper construction
of residential real estate." 428 F.2d at 1076.
Recently, District of Columbia officials, frustrated in their legal attempts to force a
recalcitrant landlord to comply with the Housing Regulations, turned to the landlord's
mortgage holders. The director of the neighborhood improvements administration of the
D.C. Dept. of Housing and Community Development was reported to have "'appraised
the bankers that under the law they have responsibility' for code compliance." He told
reporters that this was "an action 'we almost never have to take.'" One bank threatened
to foreclose unless all violations on the premises for which it held the mortgage were
corrected. A month later, it foreclosed for nonpayment of the notes on the mortgage.
Landlord Views Sell as Victim of Social Ills, Washington Post, March 23, 1976 at 1,
col. 1.
184. The argument advanced in opposition to requiring improvement of housing prop-
erties at the expense of the landlord is that the costs are recouped by raising the rent.
Since those persons most in need of low-cost housing are the poor who cannot afford
higher rents, the argument concludes that these persons will be forced into even more
overcrowded and delapidated slum housing. While examination of the merits of this ar-
gument is outside the scope of this article, a fundamental underpinning of the analysis
presented here is that the judiciary alone cannot solve the underlying social and eco-
nomic problems which create and perpetuate slum housing. The unique position of the
District of Columbia as a non-state however, makes it unlikely that relief for the
"monied interests" in this jurisdiction will be achieved at the expense of limiting or elim-
inating the rights of tenants. The source of major legislative relief in the form of finan-
cial assistance for housing construction, maintenance, rehabilitation and repair, for rent
supplements, or for other related enterprises is the United States Congress. The Dis-
trict of Columbia, however, has a measure of home rule sufficient to give its City Coun-
cil, rather than the Congress, jurisdiction over the Housing Regulations and those sec-
tions of the District of Columbia Code concerning building regulations, types of actions,
and other provisions relating to real property. See, e.g., D.C. Code, titles 5, 16, 45.
Since the primary constituencies of the members of Congress and of the City Council are
landlords and tenants, respectively, a measure of legislative protection is provided for
each interest.
tenant's quest for relief and justice. The courts are both more accessible to
tenant claims and less subject to the political pressures and direct influence
of those interests more powerful than tenants. 185 It must be emphasized that
the task of the court is not to "legislate" in the sense that it assumes the func-
tion of the representative law-making body. Rather, its responsibility is to
exercise actively its power as a co-equal branch of government, balancing the
interests in a system which, if left unchecked, would produce results contrary
to declared public policies.
The American Law Institute recently focused on the issue of judicial
activism in the landlord-tenant area. When it presented for approval its
draft of that section of the Restatement of Law, Second, Property, recognizing
a landlord's covenant of habitability, Institute Director Herbert Wechsler
wrote in the foreword:
Those who are troubled by the fact that the Reporter's formu-
lations move in some respects beyond the statutory mandates with
respect to tenant's rights and remedies may find some comfort in
the famous statement by Mr. Justice Stone at the Harvard Tercen-
tenary in 1936: "I can find in the history and principles of the com-
mon law no adequate reason for our failure to treat a statute much
more as we treat a judicial precedent, as both a declaration and
a source of law, and as a premise for legal reasoning." (The Com-
mon Law in the United States, 50 Harv L. Rev. 4, 13). What
is occurring at long last in this important field is that the total body
of statutory law, together with its underlying policy, has become
"a premise for legal reasoning" in the judicial reappraisal of old
rules and doctrines urged to be unsuitable for modem needs. The
challenge of this draft is to discern the proper 8implications of this
6
process in the areas presented for consideration.1
Finally, implicit in the evaluation of this point is the recognition of a de-
veloping tension between judicial activism and customary societal resistance
to change. The search for legal and equitable relief by and on behalf of
tenants appears to be moving towards a direct confrontation with the search
for profit by landlords and other business interests within the market system.
The fourth element of the evolutionary process is inherent in the previous
three forces of public policy, limitations on judicial accomplishments, and
challenge to be creative in the development and application of legal doctrine.
185. In addition, the unique status of the District of Columbia leaves the tenant even
farther removed from a position of influence vis-h-vis the legislative source of "ultimate
relief." See note 184, supra.
186. RESTATEMENT (SECOND) OF PROPERTY, LANDLORD AND TENANT, vii-viii (Tent.
Draft No. 2, 1974).
For want of a better term, it can be labeled as the "motivation" of the law
as defined by public policy declarations and the decision-maker's concept of
judicial responsibility. As used in this context, "motivation" may be
described as the compelling consideration that takes precedence over all other
factors that may influence the court's decision. The motivation of a decision
is achievement oriented. It includes both the primary purpose to be accom-
plished in the settlement of an individual dispute and the impact of its de-
cision on future cases. Ideally, the motivation is the achievement of a just
result in accordance with both the particular equities and the "situation-
sense." In the continuing evolution of landlord and tenant law however, this
operative ethical imperative of justice is subject to challenge by those with
differing situational perceptions.
The judicial decision-making process is influenced by a variety of forces
which furnish authority for a decision. Justice Cardozo offered the following
summary:
My analysis of the judicial process comes then to this, and little
more: logic, and history, and custom, and utility, and the accepted
standards of right conduct, are the forces which singly or in com-
bination shape the progress of the law. Which of these forces shall
dominate in any case, must depend largely upon the comparative
importance or value of the social interests that will be thereby pro-
187
moted or impaired.
Similarly, individual decision-makers articulate different motivations for de-
ciding the outcome of a particular case. The history of the evolution of the
landlord and tenant law in the District of Columbia illustrates extremes in
decision-motivating forces. At one end of the judicial spectrum are the
judges who appear to act out of a belief that they can postpone, if not avert,
what could likely be the eventual consequence of full implementation and
enforcement of the present case law. In doing so, they must often ignore
the unsatisfactory outcome in the case before them and/or defend the re-
sult with uncertain reasoning. At the other extreme are the judges who ap-
pear compelled by the need to balance the equities in a particular case. Some
of them show little awareness that their decision holds the seeds of creating
a deterrent to investment in or continuing ownership of residential property.
While decisions of the former type tend to create confusion and uncer-
tainty, the latter decisions raise the spectre of change in the status quo. This
change is discomforting, both because it is new and because it impacts upon
the financial interests of a powerful segment of society. Thus far the courts
have avoided directing discussion to the conflicting perceptions of justice held
187. B. CARDozo, THE NATURE OF THE JUDICIAL PROCESS, supra note 169 at 112.
by the landlord on one side, and by tenants, reenforced by the decisions of

the circuit court, on the other. The failure to attempt resolution of the con-
flict and to minimize the confusion results in reducing the effect of each new
case as precedent, notwithstanding the motivation articulated or implied in
the court's decision. The problem raised by this conflict was addressed by
a member of the American Law Institute as a basis for challenging the Re-
statement's recognition of the landlord's covenant of habitability. Professor
Charles Meyers concluded that it is not the underlying law or policies which
require change, but the present economic conditions of both the poor and
the housing market available to them. He argued: "In short, the Restate-
ment's rationale for the habitability duty is based on moral philosophy and
distributive justice, but the objectives it seeks to achieve cannot be accomp-
lished outside the narrow and perhaps selfish confines of economic
behavior. 18
Whatever the -theoretical merits of Professor Meyers' argument, two charac-
teristics of the present evolutionary development in the District of Columbia
challenge his solution that the judiciary should refrain from activism in this
area. To begin with, the District of Columbia has judicially recognized, and
the City Council has enacted into the Housing Regulations, a warranty of
habitability. Furthermore, the decisions of the District of Columbia courts
have established a trend in which new legal doctrines have been created and
applied to the settlement of landlord and tenant disputes, and hence, to the
188. Meyers, The Covenant of Habitability and the American Law Institute, 27
STAN. L. REV. 879, 881 (1975). Professor Meyers' position is that the judiciary is not
the appropriate branch to promulgate new rules. He argues in favor of tenants' freedom
to choose voluntarily to live in lower-quality, lower-priced housing, and to this end sug-
gests that enforcement of the housing code should be suspended in times of a housing
shortage. The choices of how to change the law, he maintains, are "political," and
"must be made by the society in order to gain acceptance." Id. at 902-03. His opposi-
tion to the Restatement is based on his conclusions that it is likely to involve the courts
in excessive litigation, will injure tenants by pricing them out of some housing and caus-
ing abandonment, and will victimize landlords as well as tenants by requiring them to
undertake maintenance and repair of premises although it may be economically unprofit-
able. (He does not discuss such subjects as tax shelters or other government sponsored
programs which create economic incentives by interfering with the unrestrained opera-
tions of the so-called free market.)
While arguments grounded in economic analyses are currently quite popular among
academicians, the courts have not shown a willingness to conform their decisions and
reasoning to the constraints of the appropriate economic models. Perhaps this is be-
cause the individual interests involved in a dispute have likewise not conformed their
behavior to that of pure economic self-interest. In fairness to judges and legislators, it
should be pointed out that it is not always possible to separate purely economic consid-
erations from political questions. Thus legislators have, at times, been known to act in
cases where the society at large might not have realized that it was unprepared for the
effects of particular legislation.
ordering of the landlord and tenant relationship. While Professor Meyers

would have the courts delay action until the acceptance of these ideas by
the society at large, a wait he admits may be lengthy, the courts have re-
fused to do so. To the contrary, it was with full knowledge that the judiciary
cannot solve economic and social problems of poverty and housing that Judge
J. Skelly Wright declared that the courts should avoid action or inaction that
will make these problems worse.189
Furthermore, the operative judicial sense that the legislatively declared
public policy contains an ethical imperative that motivates courts in their
decision-making is within the acceptable bounds of the common law tradi-
tion. 190 While Professor Meyers ultimately may be correct in his argument
that the objectives sought by a warranty of habitability are unattainable in
the context of the present housing market, this consideration has not deterred
the courts in continuing the present trend. In his final landlord and tenant
decision before the full implementation of Court Reorganization, Judge
Wright wrote:
Thus all we hold today is that when the legislature creates a
broad based scheme for dealing with a problem in the public inter-
est, courts should not permit private, selfishly motivated litigants
to undermine it. This result is required by the clear wording of
the applicable statute, by the dictates of legislatively declared
social policy, and, in the final analysis, by respect for the separa-
tion of powers and the rule of law.' 9 '
The District of Columbia courts have refused to await legislative recog-
nition of society's readiness to reorder the landlord and tenant relationship
in a manner conforming to economic models. Instead, they have established
189. See, e.g., Robinson v. Diamond Housing Corp., 463 F.2d at 871.
190. In a highly creative law review article suggesting the development of a tort of
"slumlordism," the authors argue that judicial initiative in this area does not require ad-
ditional legislative authorization. According to their thesis, the courts can create a rem-
edy for tenants victimized by this situation by drawing upon analogies from common
law doctrines and other relevant areas of law, such as antitrust, in which private eco-
nomic self-interest serves as a basis for private law enforcement. Thus, the injured per-
son would be provided with a private means for seeking retribution. The authors argue:
If there are laws on the books . . . and if we all agree that they state a basic
and desirable social goal, are the courts fulfilling their proper role only so long
as those laws remain ineffective? . . . If the "proper" role of the courts is
thus limited, the courts are not a truly co-equal branch of government. No
one is asking them to contravene standards which the legislatures have adopted,
and which executive branch officials have time and again asserted; they are
only being asked to enforce those standards . . . [ilf the legislatures have
meant what they have said, let them get busy and implement their principles.
Sax & Hiestand, Slumlordism as a Tort, 65 MIcH. L. REv. 869, 921 (1967).
191. Robinson v. Diamond Housing Corp., 463 F.2d at 871.
a trend which would require legislative action were this trend to be discon-
tinued or reversed. Some of the present appellate judges may be reluctant
to embrace totally the motivation of the more recent circuit court decisions. 102
Furthermore, the trial court judges may appear unwilling or unable to imple-
ment fully the legal doctrines. But absent a legislative declaration of a shift
in policy, the present evolutionary trend is likely to continue.
V. CONCLUSION: AND BEGINNING
In their effort to give to the social sense of justice articulate expres-

sion in rules and in principles, the method of lawfinding experts
has always been experimental. The rules and principles of case
law have never been treated as final truths, but as working hypoth-
eses, continually retested in those great laboratories of the law, the
courts of justice. Every new case is an experiment. 1 3
As the foregoing analysis details, the evolution of the substantive landlord
and tenant law is a continuing process. The appellate courts have modified
ancient doctrines and created new ones to govern a landlord and tenant re-
lationship set in twentieth-century urban America. Acknowledgment of the
new setting of this relationship has brought a measure of judicial approval
for such ideas as government interference into private transactions and wel-
fare economics.
The process of shaping, interpreting, modifying, and avoiding the new pre-
cedent has been limited largely to the context of the isolated dispute that has
reached the appellate level. The task of applying this precedent to the
more than 100,000 landlord and tenant disputes that seek judicial resolu-
tion each year has fallen upon a court of law that is not equipped to adjust
to the new procedural requirements inherent in the recent appellate deci-
sions. In short, the dispute settlement mechanism has not evolved simul-
taneously with the substantive law.
Conceptually, the summary judicial proceeding was developed to meet the
needs of a relationship dominated by landlords and governed by the doctrine
of independent covenants. The law required only a simple procedure, where
the questions of fact concerned only whether a landlord was entitled to pos-
session by reason of an expired lease or of a tenant breach of a lease cove-
nant. No further questions were raised as to the reasons the landlord sought
192. It is also important to note that the character of the District of Columbia Court
of Appeals is likely to change over the next several years. As of this writing, two
younger black judges have recently been appointed to the bench, one of whom was desig-
nated Chief Judge.
193. Munroe Smith, in B. CARwozo, THE NATURE OF THE JUDICIAL PROCESS, supra
note 169, at 23.
eviction or the tenant breached the lease. As it developed, the mechanism

provided the landlord with possession of his property or collection of the rent
owed him. For the tenant it provided an alternative to the landlord's exer-
cise of self-help. Protection of the tenant's living environment, in theory,
would be provided by the state through its enforcement of housing, building,
and sanitation codes.
This situation in the landlord and tenant court is a restraining force on
the evolution of the substantive law. Procedures based upon outdated doc-
trines have created a conflict between considerations of efficiency and the
achievement of justice. This has resulted in a body of substantive judicial
pronouncements which hold the seeds of rights for which there may not be
remedies, expectations which may be incapable of fulfillment, and confusion
without provision of clues as to where order lies.
The precedent has been articulated. The task remains to design a mecha-
nism which can begin the process of implementation and enforcement. To
allow the present system to continue is to risk those unacceptable conse-
quences best stated in Justice Frankfurter's classic question: "But is there any
principle which is more familiar or more firmly embedded in the history of
Anglo-American law than the basic doctrine that the courts will not permit
themselves to be used as instruments of inequality and injustice?"' 194 If each
case is to be considered an experiment, its result must be validated or invali-
dated by experience. This experience gives life to the law.
194. United States v. Bethlehem Steel Corp., 3'15 U.S. 289, 326 (1942) (Frankfurter,
J., dissenting).

Catholic University Law Review Catholic University Law Review

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Catholic University Law Review Catholic University Law Review

Uploaded by

Copyright:

Available Formats

Catholic University Law Review

A Study of the Evolution and Potential of Landlord Tenant Law

Follow this and additional works at: https://scholarship.law.edu/lawreview

PART I: THE SUBSTANTIVE LAW AND

do not do unrighteousness in justice

I. INTRODUCTION: THE NATURE OF THE LANDLORD-TENANT

Traditionally, the lease represented a temporary conveyance of real estate,

the paper program included provisions for the improvement of substandard

sion. 15 By answering in the affirmative, the court permitted a tenant to

15. Id. at 944.

it with knowledge that the premises contained numerous violations of the

large measure to the interdependence of legislation and judicial interpre-

II. THE PUBLIC POLICY PERSPECTIVE: ENFORCEMENT OF THE

25. See Prefatory Note, supra.

Enforcement of the Housing Regulations by the District of Columbia

28. Id. at 826.

mencement of operation of a housing business38 and must be renewed peri-

38. D.C. Housing Regulations, § 3102.1.

committed perjury during contempt proceedings for failure to make repairs,

III. CIVIL ACTIONS AND THE PRIVATE RELATIONSHIP

A. Landlord Actions and Tenant Defenses

1. Landlord's Legal Options

2. Landlord ProceduralRequirements: Tenant Affirmative Defenses

for dismissal in a motion. Historically, landlords have not made impressive

B. The Emergence of Tenant Substantive Defense

When the demands of justice required recognition of a tenant's defense

As a matter of statutory construction and for reasons of public pol-

91. Id., 397 F.2d at 699 (footnote omitted).

quent parting observation of Judge J. Skelly Wright, writing on behalf of the

C. Affirmative Actions By and On Behalf of Tenants

At the present time, a tenant is not permitted to file an independent action

106. 463 F.2d at 871.

for injunctive relief, seeking a temporary restraining order or a preliminary

Rules authorize counterclaims, which specifically include set-off and recoupment, in

Preliminary injunctions represent a means of putting pressure on the landlord

124. Id. at 482.

In addition to problems of proof, the "piece-meal approach" of basing the

Notwithstanding this language, the court of appeals in Staten, acting now as

142. Winchester Management Corp. v. Staten, 361 A.2d at 191.

2. Unexercised Government Authority to Protect Residential Housing

The statute books of the District of Columbia contain legislative authori-

a building be vacated within thirty days unless conditions are corrected. 15 7 In

157. D.C. Housing Regulations, supra note 11, § 3301.

IV. EVALUATION AND PERSPECTIVE OF THE PRESENT STATUS OF

175. Compare Llewelyn:

low and-moderate income tenants caused by the inadequate supply

While this role cannot be assumed without acknowledging the limitations

of new obligations and remedies by analogizing to the legal and equitable

by the landlord on one side, and by tenants, reenforced by the decisions of

ordering of the landlord and tenant relationship. While Professor Meyers

V. CONCLUSION: AND BEGINNING

In their effort to give to the social sense of justice articulate expres-

eviction or the tenant breached the lease. As it developed, the mechanism

You might also like