D.C. Law 21-239. Elderly Tenant and Tenant with a Disability Protection Amendment Act of 2016.

D.C. Law 21-239. Elderly Tenant and Tenant with a Disability Protection Amendment Act of 2016.

AN ACT

To amend the Rental Housing Conversion and Sale Act of 1980 to modernize references to elderly tenants and tenants with disabilities and clarify the language in existing law regarding the Mayor's determination that a tenant qualifies as an elderly tenant or tenant with a disability under the act; to amend the Rental Housing Act of 1985 to standardize and modernize the definition of elderly tenants and tenants with disabilities, to require the Housing Commission to publish additional information pertinent to elderly tenants and tenants with disabilities, to prohibit an increase above the base rent unless a housing provider provides a tenant with information relevant to establishing elderly tenant and tenant with a disability status, to lower the cap on the annual standard rent increase for a unit occupied by an elderly tenant or a tenant with a disability to the Consumer Price Index, the Social Security COLA, or 5% of the current rent charged, whichever is least, to change the maximum annual income for low-income elderly tenants and low-income tenants with a disability to qualify for an exemption from a capital improvement surcharge from $40,000 to 60% of the area median income in the Washington Metropolitan Statistical Area for a household of 4 persons, and to establish that same amount as the maximum annual income for a low-income elderly tenant and a low-income tenant with a disability to qualify for an exemption from rent adjustments pursuant to a hardship petition, a services and facilities petition, and a substantial rehabilitation petition, to exempt current and future low-income elderly tenants and low-income tenants with a disability from a rent adjustment approved pursuant to a hardship petition, a services and facilities petition, and a substantial rehabilitation petition, in addition to the existing exemption from capital improvement surcharges, to provide housing providers with a tax credit for each unit occupied by a low-income elderly tenant or a low-income tenant with a disability to compensate for certain exemptions and limit the total combined tax credits claimed by all housing providers for any fiscal year to a maximum of $1.25 million, to prohibit a voluntary agreement from increasing the rent charged for a current or future elderly tenant or a tenant with a disability with a qualifying income, to permit a low-income elderly tenant or low-income tenant with a disability to waive his or her right to an exemption from a services and facilities petition or from an increase in rent charged resulting from a voluntary agreement, to permit a tenant to establish elderly or disability status by providing the minimum information necessary, and by filing the registration form by mail, fax, email, or in person at the Rental Accommodations Division, to establish that the Rent Administrator may deny registration for elderly or disability status only upon clear and convincing evidence of error, fraud, falsification, or misrepresentation, and only if the tenant has had the opportunity to respond to the denial or a challenge from the housing provider, to impose a penalty on a tenant upon a finding by the Rent Administrator of fraud, falsification, or misrepresentation of eligibility for elderly or disability status, and to provide for penalties if a housing provider's challenge to a tenant's registration to establish elderly or disability status is determined to have been frivolous or made in bad faith.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Elderly Tenant and Tenant with a Disability Protection Amendment Act of 2016".

Sec. 2. The Rental Housing Conversion and Sale Act of 1980, effective September 10, 1980 (D.C. Law 3-86; D.C. Official Code § 42-3401.01 et seq.), is amended as follows:

Amend § 42-3401.01

(a) Section 101(a)(4) (D.C. Official Code § 42-3401.01(a)(4)) is amended by:

(1) Striking the phrase "elderly and disabled tenants" and inserting the phrase "elderly tenants and tenants with disabilities" in its place.

(2) Striking the phrase "lower income, elderly, and disabled tenants" and inserting the phrase "lower income tenants, elderly tenants and tenants with disabilities" in its place.

Amend § 42-3401.02

(b) Section 102 (D.C. Official Code § 42-3401.02) is amended as follows:

(1) Paragraph (3) is amended by striking the phrase "elderly and disabled tenants" and inserting the phrase "elderly tenants and tenants with disabilities" in its place.

(2) Paragraph (4) is amended by striking the phrase "low income non-elderly and non-disabled tenants" and inserting the phrase "lower income non-elderly tenants and tenants without disabilities" in its place.

Amend § 42-3401.03

(c) Section 103 (D.C. Official Code § 42-3401.03) is amended as follows:

(1) A new paragraph (9A) is added to read as follows:

"(9A) "Elderly tenant" means a tenant who is 62 years of age or older.".

(2) A new paragraph (19) is added to read as follows:

"(19) "Tenant with a disability" means a tenant who has a disability as defined in section 3(1)(A) of the Americans with Disabilities Act of 1990, approved July 26, 1990 (104 Stat. 329; 42 U.S.C. § 12102(1)(A)).".

Amend § 42-3402.03

(d) Section 203(d)(4) (D.C. Official Code § 42-3402.03(d)(4)) is amended by striking the phrase "elderly or disabled tenant" and inserting the phrase "elderly tenant or tenant with a disability" in its place.

Amend § 42-3402.04

(e) Section 204(b)(3)(A) (D.C. Official Code § 42-3402.04(b)(3)(A)) is amended to read as follows:

"(A) Is sold to a person who is an elderly tenant or a tenant with a disability.".

Amend § 42-3402.08

(f) Section 208 (D.C. Official Code § 42-3402.08) is amended as follows:

(1) The section heading is amended by striking the phrase "Elderly or disabled tenancy" and inserting the phrase "Tenancy of elderly tenants and tenants with disabilities" in its place.

(2) Subsection (a)(2) is amended by striking the phrase "elderly or disabled tenant" and inserting the phrase "elderly tenant or tenant with a disability" in its place.

(3) Subsection (b) is amended by striking the phrase "elderly or disabled tenant" and inserting the phrase "elderly tenant or tenant with a disability" in its place.

(4) Subsection (c) is amended to read as follows:

"(c) Qualification. –

"(1) A tenant shall qualify under this title if, on the day a tenant election is held for the purposes of conversion, the tenant:

"(A) Is entitled to the possession, occupancy, or the benefits of the tenant's rental unit; and

"(B) Is an elderly tenant or a tenant with a disability.

"(2) In making a determination that a tenant qualifies as a tenant with a disability under this title, the Mayor:

"(A) Shall limit the inquiry to the minimum information and documentation necessary to establish that the tenant meets the definition of a tenant with a disability and shall not inquire further into the nature or severity of the disability;

"(B) Shall not require the tenant to provide a description of the disability when making an eligibility determination; provided, that the Mayor may require that a physician or other licensed healthcare professional verify that a tenant meets the definition of a tenant with a disability; and

"(C) Shall not require the tenant to provide eligibility documentation in fewer than 30 days.

"(3) The Mayor shall maintain records of the information compiled under this subsection and shall not disclose information about the disability of a tenant unless the disclosure is required by law.

"(4) In requesting information under this subsection, the Mayor:

"(A) Shall not include a qualified voter's name on any publicly available list of eligible voters;

"(B) Shall inform tenants that their names will be absent from publicly available lists of eligible voters; and

"(C) Shall not disclose information provided about a tenant's disability unless the disclosure is required by law.

"(5) The Mayor may provide a list of eligible voters upon request and may make a list of eligible voters available at the site of the tenant election.

"(6) The Mayor shall develop all forms and procedures as may be necessary to verify eligibility under this subsection.".

(g) Section 210(b) (D.C. Official Code § 42-3402.10(b)) is amended by striking the phrase "elderly and disabled tenants" and inserting the phrase "elderly tenants and tenants with disabilities" in its place.

Sec. 3. The Rental Housing Act of 1985, effective July 17, 1985 (D.C. Law 6-10; D.C. Official Code § 42-3501.01 et seq.), is amended as follows:

Amend § 42-3501.03

(a) Section 103 (D.C. Official Code § 42-3501.03) is amended as follows:

(1) Paragraph (12) is amended to read as follows:

"(12) "Elderly tenant" means a tenant who is 62 years of age or older.".

(2) A new paragraph (25A) is added to read as follows:

"(25A) "Qualifying income" means household income, as defined by D.C. Official Code § 47-1806.06(b)(2), that is no greater than 60% of the area median income, as defined by section 2(1) of the Housing Production Trust Fund Act of 1988, effective March 16, 1989 (D.C. Law 7-202; D.C. Official Code § 42-2801(1).".

(3) New paragraphs (29A) and (29B) are added to read as follows:

"(29A) "Rent charged" means the amount of monthly rent charged to a tenant by a housing provider for a rental unit covered by the Rent Stabilization Program.

"(29B) "Rent surcharge" means a charge added to the rent charged for a rental unit pursuant to a capital improvement petition, hardship petition, or a substantial rehabilitation, and not included as part of the rent charged.".

(4) A new paragraph (36A) is added to read as follows:

"(36A) "Tenant with a disability" means a tenant who has a disability as defined in section 3(1)(A) of the Americans with Disabilities Act of 1990, approved July 26, 1990 (104 Stat. 329; 42 U.S.C. § 12102(1)(A)).".

Amend § 42-3502.02

(b) Section 202(a)(3) (D.C. Official Code § 42-3502.02(a)(3)) is amended to read as follows:

"(3) Certify and publish before March 1 of each year:

"(A) The annual adjustment of general applicability of the rent charged for a rental unit under section 206;

"(B) The most recent annual cost-of-living adjustment of benefits for social security recipients established pursuant to section 415(i) of the Social Security Act, approved August 28, 1950 (64 Stat. 506; 42 U.S.C. § 415(i));

"(C) The maximum annual rent adjustment that may be imposed on a unit occupied by an elderly tenant or tenant with a disability pursuant to section 224(a); and

"(D) The qualifying income for an elderly tenant or tenant with a disability to be exempt from an adjustment in the rent charged pursuant to sections 210, 211, 212, and 214 and whose rent charged may not be increased under section 215.".

(c) Section 206 (D.C. Official Code § 42-3502.06) is amended as follows:

Amend § 42-3502.06, § 42-3502.05

(1) Subsection (f) is repealed.

Amend § 42-3502.06

(2) Subsection (g) is repealed.

Amend § 42-3502.08

(d) Section 208 (D.C. Official Code § 42-3502.08) is amended as follows:

(1) Subsection (a)(1) is amended as follows:

(A) Subparagraph (D) is amended by striking the word "and".

(B) Subparagraph (E) is amended by striking the period and inserting a semicolon in its place.

(C) New subparagraphs (F) and (G) are added to read as follows:

"(F) The housing provider has provided a tenant with written notice of the maximum standard rent increase that applies to an elderly tenant or a tenant with a disability and the means by which a tenant may establish elderly or disability status as set forth in 224(d), as provided by the Rent Administrator pursuant to 224(f), and has not required a tenant to provide more proof of age or disability than the minimum information necessary to establish that status; and

"(G) The housing provider, if a nonresident of the District, has appointed and maintained a registered agent pursuant to section 203 of Title 14 of the District of Columbia Municipal Regulations.".

(2) Subsection (h) is amended to read as follows:

"(h) Unless the adjustment in the amount of rent charged is implemented pursuant to 210, 211, 212, or 214, an adjustment in the amount of rent charged:

"(1) If the unit is vacant, shall not exceed the amount permitted under section 213(a); or

"(2) If the unit is occupied:

"(A) Shall not exceed the current allowable amount of rent charged for the unit, plus the adjustment of general applicability plus 2%, taken as a percentage of the current allowable amount of rent charged; provided, that the total adjustment shall not exceed 10%;

"(B) Shall be pursuant to section 224, if occupied by an elderly tenant or tenant with a disability; and

"(C) Shall not exceed the lesser of 5% or the adjustment of general applicability if the unit is leased or co-leased by a home and community-based services waiver provider.".

Amend § 42-3502.15

(e) Section 215(b) (D.C. Official Code § 42-3502.15(b)) is amended by striking the phrase "on all tenants" and inserting the phrase "on all tenants, except as specified in section 224(i)(2)" in its place.

Amend § 42-3502.23

(f) Section 223 (D.C. Official Code § 42-3502.23) is amended by striking the phrase "disabled tenants" in the lead-in language and inserting the phrase "tenants with disabilities" in its place.

(g) A new section 224 is added to read as follows:

New § 42-3502.24

Note § 42-3502.24

"Sec. 224. Elderly tenants and tenants with disabilities.

"(a) Notwithstanding section 208(h), an adjustment in the amount of rent charged while a unit is occupied by an elderly tenant or tenant with a disability, without regard to income, shall not exceed the rent charged for the unit, plus the least of:

"(1) The adjustment of general applicability;

"(2) The most recent annual cost-of-living adjustment of benefits for social security recipients established pursuant to section 415(i) of the Social Security Act, approved August 28, 1950 (64 Stat. 506; 42 U.S.C. § 415(i)); or

"(3) Five percent of the rent charged.

"(b) A rent surcharge allowed pursuant to sections 210, 212, and 214 and a rent increase allowed pursuant to section 211, shall not be assessed against a current or future elderly tenant or tenant with a disability with a qualifying income. For the purposes of calculating the rent charged a future qualified elderly tenant or tenant with a disability, adjustments in the rent charged pursuant to these sections effected during the tenancy of a tenant not exempt from the adjustments, shall be considered rent surcharges, and shall be subtracted from the rent charged for the unit.

"(c) A tenant exempt from section 211 and a tenant whose rent charged may not be increased under section 215 may waive his or her rights under the respective sections. The waiver shall be in writing and shall state that it was made voluntarily, without coercion, and with full knowledge of the ramifications of a waiver of their rights.

"(d)(1) A tenant may file a completed elderly or disability status and income eligibility registration form and supporting documentation by mail, fax, email, or in person at the Rental Accommodations Division of the Department of Housing and Community Development.

"(2) The Mayor shall determine the minimum documentation necessary for a tenant to establish elderly tenant or tenant with a disability status and income eligibility, which may include:

"(A) For elderly status, proof of age as documented by a passport, birth certificate, District-issued driver's license or identification card, or any other documentation as the Mayor deems sufficient; and

"(B) For disability status, an award letter for disability benefits from the U.S. Social Security Administration, a letter from a physician stating that the tenant is a tenant with a disability, or other documentation as the Mayor may deem sufficient.

"(3) In making a determination that a tenant qualifies as a tenant with a disability under this subsection, the Mayor shall limit the inquiry to the minimum information and documentation necessary to establish that the tenant meets the definition of a tenant with a disability and shall not inquire further into the nature or severity of the disability.

"(4) The Mayor shall not require a tenant to provide a description of the disability when making an eligibility determination; provided, that the Mayor shall require that a physician or other licensed healthcare professional verify that a tenant meets the definition of a tenant with a disability.

"(5) The Mayor shall not require the tenant to provide eligibility documentation in fewer than 30 days.

"(6) The Mayor shall maintain records of the information compiled under this subsection and shall not disclose information about a tenant's disability unless the disclosure is required by law.

"(7) The Mayor shall develop any forms and procedures as may be necessary to verify eligibility under this subsection.

"(8) A tenant shall provide pay stubs, benefit statements, or other documentation as the Mayor may deem sufficient as proof of income eligibility to qualify for an exemption from an adjustment in the rent charged pursuant to subsection (b) of this section.

"(9) A housing provider shall, upon the request of a tenant, provide the tenant with a current copy of the registration form issued by the Rent Administrator for purposes of establishing elderly tenant or tenant with a disability status, or qualifying income status.

"(e)(1) A tenant's elderly or disability status shall be effective as of the first day of the first month following compliance with this subsection and shall remain effective unless and until any time the Rent Administrator may deny the registration.

"(2) If the effective date of the tenant's elderly or disability status occurs less than 12 months after the effective date of a rent adjustment of general applicability, the housing provider shall reduce the rent charged to the rent for a unit occupied by an elderly tenant or a tenant with a disability pursuant to subsection (a) of this section,as of the effective date of the tenant's elderly or disability status.

"(3) An elderly tenant or tenant with a disability shall not be entitled to receive a retroactive refund for an approved registration for a time period where the tenant was qualified as an elderly tenant or a tenant with a disability, but had not yet fulfilled the requirements of this section.

"(f) The Rent Administrator shall issue a notice of rent adjustment that shall set forth:

"(1) The maximum standard rent increase percentage that applies to elderly tenants and tenants with disabilities, in bold 12-point lettering;

"(2) The benefits and protections that apply to elderly tenants and tenants with disabilities; and

"(3) The standards and procedures for qualifying for those benefits and protections.

"(g)(1) A housing provider who provides housing to an elderly tenant or tenant with a disability, with qualifying income, and is not permitted under subsection (b) of this subsection to implement, and does not implement, an adjustment in rent charged pursuant to 210, 211, 212, or 214, shall receive a tax credit for each unit occupied by an elderly tenant or a tenant with a disability, with qualifying income, in the amount of $1 for each $1 of theapproved rent adjustment that is not implemented.

"(2) The tax credit may be taken against the next installment or installments of taxes payable to the District coming due with respect to the housing accommodation, inclusive of the land on which it is located.

"(3)(A)(i) The tax credit shall first be taken against real property taxes payable to the District.

"(ii) The Rent Administrator shall certify to the Office of Tax and Revenue the amount of credit allowable for each housing provider and parcel of real property for each real property tax year.

"(iii) The total amount of credit certified by the Rent Administrator for any tax year shall not exceed the maximum amount of credit allowable for the year under paragraph (6) of this subsection.

"(B) If the amount that would be collectible from elderly tenants and tenants with disabilities at the housing accommodation exceeds the amount of real property taxes that would be payable during the real property tax year with respect to the housing accommodation but for the provisions of subsection (b) of this section, then the housing provider may take the tax credit against income or franchise taxes payable to the District for the housing provider's tax year during which the real property tax year ends.

"(4) The tax credit shall cease:

"(A) Upon recovery by the housing provider of all costs, including interest and service charges, used as a basis for a capital improvement petition or a substantial rehabilitation petition; or

"(B) Upon any expiration of a hardship petition granted to the housing provider.

"(5) If an elderly tenant or tenant with a disability, with qualifying income, should cease to reside in a rental unit, the tax credit allowed to the housing provider for that rental unit shall cease.

"(6) Notwithstanding any other provision of this section, the total combined tax credits claimed by all housing providers under this section for any fiscal year shall not exceed $1.25 million.

"(7) The maximum total combined tax credits claimed by all housing providers under this section for any fiscal year shall be adjusted annually by an amount equal to the change during the previous calendar year, ending each December 31, in the Washington, D.C., Standard Metropolitan Statistical Area Consumer Price Index for Urban Wage Earners and Clerical Workers ("CPI-W") for all items during the preceding calendar year.

"(8) The base year for the annual adjustment specified in paragraph (7) of this subsection shall be the year of the effective date of the Elderly Tenant and Tenant with a Disability Protection Amendment Act of 2016, passed on 2nd reading on December 6, 2016 (Enrolled version of Bill 21-173) ("Protection Act"). The annual adjustment shall occur at least 12 months after the effective date of the Protection Act on the following October 1. The annual adjustment shall be in accordance with the CPI-W effective as of the October 1 of each subsequent year.

"(9) Notwithstanding subsection (b) of this section, if the Chief Financial Officer finds that funds are not available for the tax credit provided by this subsection, then a housing provider may assess against an elderly tenant or tenant with a disability a rent surcharge allowed pursuant to sections 210, 212, and 214, and a rent increase allowed pursuant to section 211.

"(h)(1) A housing provider shall not increase the rent charged in an amount greater than that allowed for a unit occupied by an elderly tenant or a tenant with a disability pursuant to subsection (a) of this section, unless the Rent Administrator has issued a determination that the tenant failed to qualify for elderly or disability status, pursuant to this subsection.

"(2) If the housing provider has substantial grounds to believe that the tenant does not qualify for elderly or disability status, or that relevant documentation is fraudulent or has been falsified, and if efforts to resolve the dispute directly with the tenant are unavailing, then the housing provider may challenge the tenant's registration by:

"(A) Notifying the tenant of the basis for the challenge; and

"(B) Filing a request to deny the registration with the Rent Administrator, within 30 days of the tenant's compliance with subsection (d) of this section.

"(3)(A) If the Rent Administrator has substantial grounds to believe that the tenant does not qualify for elderly or disability status, and that relevant documentation is fraudulent or has been falsified, then within 30 days of the tenant's compliance with subsection (d) of this section, the Rent Administrator may deny the tenant's registration.

"(B) The Rent Administrator shall deny a tenant's registration only upon clear and convincing evidence of error, fraud, falsification, or misrepresentation, and only if the tenant has been given the opportunity to respond to the challenge to the registration by the housing provider or to the denial of the registration by the Rent Administrator.

"(C) If the Rent Administrator denies a tenant's registration, and determines that the tenant acted in bad faith rather than due to unintentional error, then within 21 days of the denial, the Rent Administrator may order the tenant to pay to the housing provider double the difference between the amount of rent to be charged pursuant to section 208(h) and the amount of rent actually paid, with interest.

"(i)(1) A voluntary agreement shall not increase the rent charged to a current or future elderly tenant or tenant with a disability with a qualifying income.

"(2) For the purposes of calculating the rent charged a future qualified elderly tenant or tenant with a disability, an increase in the rent charged pursuant to a voluntary agreement effected during the tenancy of a tenant not exempt from the increase, shall be considered a rent surcharge, and shall be subtracted from the rent charge of the unit during the tenancy of the qualified elderly tenant or tenant with a disability.

"(3) The voluntary agreement shall identify each rental unit that is occupied by an elderly tenant or a tenant with a disability, the name of each tenant in the unit, and the current rent charged.

"(j) The Mayor may determine the term of eligibility and recertification requirements for the exemptions provided by this section.".

Amend § 42-3509.01

(h) Section 901 (D.C. Official Code § 42-3509.01) is amended by adding a new subsection (h) to read as follows:

"(h) If a housing provider's challenge, pursuant to section 224(h)(2), to a tenant's registration to establish elderly or disability status under section 224(d) is determined to have been frivolous or made in bad faith, the housing provider shall be deemed to have made an unlawful demand for rent, and shall be held liable to the tenant, as applicable, for:

"(1) At a minimum, an amount equal to 2% of the total annual current rent charged;

"(2) At a maximum, an amount equal to the total annual current rent charged; and

"(3) In addition to the penalties specified in paragraphs (1) and (2) of this subsection, treble damages based upon the amounts prescribed in those paragraphs.".

Sec. 4. Applicability.

(a) The new section 224(b) of the Rental Housing Act of 1985, within section 3(g), shall apply upon the date of inclusion of its fiscal effect in an approved budget and financial plan.

(b) The Chief Financial Officer shall certify the date of the inclusion of the fiscal effect in an approved budget and financial plan, and provide notice to the Budget Director of the Council of the certification.

(c)(1) The Budget Director shall cause the notice of the certification to be published in the District of Columbia Register.

(2) The date of publication of the notice of the certification shall not affect the applicability of this act.

Sec. 5. Fiscal impact statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).

Sec. 6. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of Columbia Register.