HARRIS, Associate Judge:
This appeal from the Landlord and Tenant Branch of the Civil Division of the Superior Court challenges an order directing that $105, which had been paid into the registry of the court by a tenant pursuant to a protective order, be disbursed to the landlord. No evidentiary hearing was held prior to the entry of either order. We reverse.
Appellee Habib, the landlord, gave his tenant at sufferance, appellant McNeal, a 30-day notice to quit pursuant to D.C.Code 1973, § 45-902. When the tenant did not leave upon the expiration of the 30 days, the landlord used that fact as the basis for filing a complaint for possession of the premises. Although the landlord effected personal service, he made no claim for rent due, thereby limiting the defenses available to the tenant.
In the Landlord and Tenant Branch, trial is set for the return date specified in the summons. Super.Ct. L & T R. 7(c). On the return date, both parties appeared in court. The tenant then filed an answer, which (1) asserted defenses of retaliatory eviction and housing code violations, and (2) demanded a jury trial.
The landlord then made an oral motion for a protective order to require the tenant to make monthly payments (equal to the accruing rental) into the registry of the court pending resolution of the case. The court heard argument from counsel for each party, and granted the motion.
The tenant complied with that order. However, shortly before trial, she voluntarily surrendered possession of the premises, thereby mooting the possessory action. The case then came on for a hearing as to the proper disposition of the $105 — equivalent to one month's rent — which appellant had paid into the court registry pursuant to the protective order. The tenant argued that all of the money should be returned to her under Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 112, 430 F.2d 474, 485 (1970), or alternatively that the court
There are two prongs to appellant's argument. First, since the protective order was entered on the return date in response to an oral motion, she contends that the order was invalid because it was entered in alleged disregard both of the requirements of Super.Ct. L & T R. 13 and of the recommended procedures discussed in Bell v. Tsintolas Realty Co., supra.
When the landlord chose to rely upon the expiration of the 30-day notice to quit in instituting his possessory action (rather than upon the apparently unpaid past rent), he waived his right to claim rental arrearages in the proceeding. Similarly, he could not have amended his complaint to assert a claim for rent due, although he was free to seek recovery of back rent in a separate action. See Paregol v. Smith, D.C.Mun.App., 103 A.2d 576, 578 (1954); see also Mahoney v. Campbell, D.C.App., 209 A.2d 791, 794 (1965). Additionally, the type of complaint which was filed operated to curtail the number of defenses available to the tenant.
For the past several years, the caseload in the Landlord and Tenant Branch has been approximately 120,000 cases annually. Consistent with the demands imposed by that high volume, Super.Ct. L & T R. 1 provides that possessory actions are to be handled in summary fashion. Generally, a suit for possession is disposed of on the return date. When the tenant asserted defenses and demanded a trial, however, delay became a factor. The landlord thus was faced with an additional period of no income from his property and the question of some payment by the tenant for the continued occupancy of the apartment became relevant.
We have noted appellant's reliance upon Rule 13(a), which provides that a motion shall be in writing when it "is dependent upon facts not apparent upon the record". In the Landlord and Tenant Branch, very few cases actually go to trial. Most are disposed of on the return date by dismissals, default judgments, or judgments by confession (with the tenant agreeing to pay back rent according to a formula negotiated with the landlord). Until the return date, a landlord has no knowledge as to whether the seeking of a protective order might become appropriate, and the statistical likelihood is that it will not. To require a separate written motion for a protective
The landlord made the oral motion for a protective order as soon as he perceived a need therefor. The parties then were present in court. The relevant facts were not in dispute.
In Bell v. Tsintolas Realty Co., supra, the United States Court of Appeals sustained the trial court's equitable authority to impose a protective order "to avoid placing one party at a severe disadvantage during the period of litigation." 139 U.S. App.D.C. at 109, 430 F.2d at 482 (footnote omitted). While much that was said in the Bell opinion constituted dicta which went considerably beyond the narrow issues presented, we share the following thought expressed therein:
While the Bell court spoke of "the prepayment of rent requirement as a method of protecting the landlord", ibid., the benefits to tenants should not be overlooked. First, as to the tenant who is a defendant, payments made into the registry of the court pending litigation protect his ability to satisfy his housing needs, in that such payments prevent a tenant from falling further in arrears. See generally National Capital Housing Authority v. Douglas, D. C.App., 333 A.2d 55 (1975). Second, a defendant's fellow tenants merit the law's consideration. To the extent that one tenant pays no rent for the use of particular premises, he (1) may make it financially impossible for his landlord to make needed repairs, and (2) heightens the landlord's need to increase rental charges to the paying tenants to compensate for the lost income. These consequences hardly are fair to those tenants who honor their contractual commitments.
If all trials in possessory actions could be held on the return date, there would be no need for protective orders. Obviously, however, that is an impossibility. In order for the court to proceed in any fashion other than a dismissal on the return date, the tenant must have been served properly, thereby receiving notice of the originally set trial date. Considering all of the relevant factors, we conclude that Rule 13 is inapplicable to a motion for a protective order made orally on the return date in a possessory action.
Also raised in Lindsey v. Normet was an equal protection challenge to the Oregon statutory scheme. With respect thereto, the Court concluded (id. at 74, 92 S.Ct. at 874):
While there are certain practical distinctions between the overall Oregon procedures and those which are in effect here, we interpret Lindsey v. Normet as authority for the proposition that the due process clause does not require an evidentiary hearing prior to the entry of a protective order.
One corollary aspect of this holding should be stressed. We have noted that a defense of housing code violations is irrelevant to a possessory action based upon a valid 30-day notice to quit (unless raised in the context of a claim of retaliatory eviction). However, when consideration is given to the possible entry of a protective order if a defendant demands a trial on the return date (either jury or nonjury, for each entails a delay), future payments of rent (or perhaps more accurately payments for the continued use or occupancy of the premises, since the landlord seeks to remove the tenant) become involved. At the hearing on a motion for a protective order, allegations of housing code violations would be relevant to the trial court's determination of the amount which should be paid monthly into the registry of the court (i. e., the rental figure or a reduced figure). Also relevant would be any representations to the effect that the tenant has frustrated the landlord's good faith efforts to correct housing code violations, for such a circumstance occurs with regrettable frequency.
While we affirm the entry of the protective order, we reach the opposite conclusion with respect to the trial court's order that the $105 which had been paid into the registry of the court should be disbursed to the landlord with no opportunity for an evidentiary hearing.
In her answer to the complaint, the tenant did assert the existence of housing code violations. While any such defects were irrelevant to the 30-day notice to quit, they may well have significance as to the post-return date payment for the tenant's continued use and occupancy of the premises pending the conclusion of the proceeding. Also of significance would be the length of the period during which the tenant's continued occupancy precluded any other productive use of the premises by the landlord.
We conclude that due process considerations entitle the tenant to present relevant and material evidence as to the extent to which the rental contract figure should be abated — if at all — due to violations of the Housing Regulations which might have existed during her continued use and occupancy of the premises while the protective order was in effect. Only after such a hearing has been held may an order be entered disbursing the funds.
Affirmed in part, reversed in part, and remanded.
We note also that oral motions for stays by tenants facing eviction are not uncommon in the Landlord and Tenant Branch. If we were to hold Rule 13's requirement of a written motion to be applicable to requests for a protective order, assuredly such a ruling would have to be extended to requests for stays of writs of restitution. While we sanction an oral motion for a stay by a tenant, absent extraordinary circumstances a landlord should have notice of such a motion and an opportunity to be heard before the trial court rules thereon.
In Bell, no issue was presented as to the disbursement of escrowed funds, nor was any apparent consideration given to how long a tenant might have occupied the premises before surrendering them. The court's comments were dicta, in the nature of an advisory opinion, not giving rise to the principle of deference to pre-court reorganization opinions of the Circuit Court expressed in M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971). If the court meant to suggest that an additional complaint would have to be filed in another branch of the trial court, we respectfully would disagree. The parties and the money already are before the court; it would be pointless to call for instituting a new proceeding as a means of concluding the exististing one.