You either love it or hate it. The Tenant Opportunity to Purchase Act, or TOPA, is a law in the District that gives tenants the right to purchase the property in which they reside.
When a landlord wants to sell a rental property, the tenants must be provided with a TOPA notice telling them of their rights. If you live in a single-family house, you have 30 days after receiving the notice to advise your landlord that you are interested in buying. You then have 60 days to enter into a real estate contract, and yet another 60 days to go to closing. If your lender needs additional time, you can get 30 more days before settlement takes place.
If you live in a property with two to four residential apartments, the tenants have 15 days to advise the landlord that they would like to purchase. However, if the tenants collectively fail to do so, an individual tenant has an additional seven days to put the landlord on notice of the intent to purchase. A contract must be in place no later than 90 days after the landlord was provided notice, and settlement must take place not less than 90 days thereafter. However, once again, this deadline can be extended by 30 more days if a lender needs additional time.
Finally, if you live in an apartment building with five or more rental units, a tenant association must be established and incorporated, and only that corporation has the right to speak and negotiate for the tenant member. The times for the tenant association are considerably much longer.
This column will address a problem exclusively related to single-family homes. Let’s look at this example: You are the property owner and get a job in Chicago. You rent your house for one year. During your stay in Chicago, you learn that your job will require you to periodically come back to Washington to work. Your tenant’s lease is for one year. Obviously, you would like to stay in your property. What can you do?
There is a provision in TOPA that allows landlords to reoccupy their home. According to the law, a landlord (strangely referred to as a “housing provider”) “may recover possession of a rental unit where the person seeks in good faith to recover possession . . . for the person’s immediate and personal use and occupancy as a dwelling.” The law requires the landlord to give the tenant 90 days to vacate. And the tenant can only be required to vacate once the term of the lease has expired.
If the tenant does not vacate, the landlord can seek court assistance to legally evict the tenant. The landlord can then move back into the property but cannot rent it for at least one year. When the D.C. Council enacted this legislation, it did not want landlords — under the guise of wanting to move back in — to remove a tenant, only to immediately re-rent the property for more money.
Luis Irene rented his Columbia Heights condominium unit to a couple in 1994. Irene lived in New Jersey and worked full time in New York. He served the tenants the 90-day notice, claiming that he wanted it for his “immediate personal use and occupancy.” The tenants refused to leave, and the matter went to court.
According to a court opinion, Irene wanted to visit his Washington family on a periodic basis, especially a brother who lives in the same condominium complex. In court, Irene argued that the law does not require that such use be a primary residence. Judge Neal Kravitz ruled against Irene.
The judge, conceding that TOPA does not require primary use, ruled that Irene did not meet the “immediate” requirement of the law.
Accordingly, the tenant was allowed to stay, and Irene was not allowed to use his own property as he wished.
The decision was based on an interpretation of TOPA. One important provision of that law is that any ambiguity is to be interpreted in favor of tenant rights.
This case was decided on the facts; TOPA still allows landlords the right to regain their home if they want to move back in. Perhaps the situation where the homeowner needed to use his apartment when he was periodically in Washington for business will be decided differently, but based on Kravitz’s decision, the law remains unclear.
The council should clarify this because — especially in Washington — there are many transient owners who need to come to Washington for business and would not like to be displaced from their property.
Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed, stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.