The D.C. Consumer Protection Procedures Act Applies Retroactively to Private Actions Brought by Tenants Against Landlords

David Wise and John Drudi of Wise & Donahue, PLC recently obtained a ruling in D.C. Superior Court that the District of Columbia Consumer Protection Procedures Act (DCCPA) applies retroactively to private actions brought by tenants against landlords. The DCPPA authorizes consumers to bring suits against merchants who employ trade practices that violate District of Columbia law. D.C. Code § 28-3905(k)(1)(A). Under the DCCPA, it is illegal for any person to: “ … (e) misrepresent as to a material fact which has a tendency to mislead.” D.C. Code §28-3904(e). The Act is violated “whether or not any consumer is in fact misled, deceived or damaged thereby”. A “consumer” for purposes of the DCPPA is “a person who … does or would purchase, lease (as lessee), or receive consumer goods or services.” Id. § 28-3901(a)(2).

In the lawsuit, Wise & Donahue represented tenants who had rented an apartment unit from Defendants, two large corporate entities in the business of owning and renting dwelling units in the District of Columbia. Defendants had repeatedly represented to the tenants that their unit had never sustained water damage and did not have a history of pipe and/or water damage. In their lawsuit, the tenants asserted that these statements were false, and the unit had in fact suffered from prior water leaks that caused dangerous levels of toxic mold to exist inside the unit. The tenants suffered severe adverse reactions and other personal injuries due to toxicogenic mold exposure by living in the unit. The tenants sued the apartment owner and property manager, asserting claims for (1) Violation of the Air Quality Amendment Act (DC Code § 8- 241, et. Al); (2) Negligence; (3) Negligence per se; (4) Intentional Infliction of Emotional Distress; (5) Breach of Implied Warranty of Habitability; (6) Fraud; (7) Negligent Misrepresentation; and (8) a private right of action under the DCCPA.

Defendants moved to dismiss the claims brought under the DCCPA, contending that it did not apply to landlord/tenant disputes. Their argument was based on a 2009 case that did not allow a private right of action to proceed under the DCCPA in the context of landlord/tenant disputes. Gomez v. Independence Management of Delaware, Inc., 967 A2d 1276, 1286 (2009). The Gomez decision relied on a 2000 amendment of the DCCPA which had precluded DCCPA enforcement by the Department of Consumer and Regulatory Affairs (“DCRA”).

But the tenants demonstrated that Defendants’ contention was incorrect, citing to the D.C. Council legislative history that clarified that the limitation on enforcement of the DCCPA by the DCRA was not meant to defeat a private cause of action under the DCCPA. The pertinent D.C. Council clarifications are contained in three “emergency” acts that were passed over a three-year period from 2016 to 2018:

  • D.C. Act 21-576, dated December 19, 2016, The “At-Risk Tenant Protection Clarifying”; Congressional Review Emergency Amendment Act of 2016”, clarified that the office of the Attorney General can bring actions to enforce the DCCPA “against housing providers that violate certain consumer protection laws that protect tenants”;
  • D.C. Council resolution 22-33, dated March 7, 2017, called “The At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act of 2017”, which renewed the 2016 Act; and
  • The “At-Risk Tenant Protection Clarifying Amendment Act of 2018”, which provides that the attorney general’s office may pursue landlord-tenant issues under the DCCPA, and clarified that the private right of action under the DCCPA applies to landlord-tenant relationships.

What made this case particularly interesting was that the allegations in the tenants’ complaint occurred in 2015, and their complaint was filed in 2017. Therefore, the issue remained of whether the amendments should be applied retroactively to apply to our clients’ case. The tenants argued that they should, as the D.C. Council expressed a clear intention that the “At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act” be applied retroactively to preclude jeopardizing active DCCPA Enforcement in the landlord-tenant arena. Edwards v. Lateef, 558 A.2d 1144, 1146–47 (D.C. 1989) (“statutes that create additional remedies, relate to the modes of procedure or confirm or clarify existing rights do not contravene the general proscription against the retrospective operation of legislation”).

This intent of the D.C. Council, that its clarifying Act be applied retroactively, is reflected in the legislative history/resolutions passed pertaining to the 2017 iteration of the Act, which provided that pre-existing DCCPA cases in the landlord-tenant arena should proceed:

  • “…the District government is increasingly looking to protect tenant-consumers from unscrupulous housing providers that fail to live up to their obligations” (Resolution 22-33 in the Council of the District of Columbia, adopting the “At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act” of 2017, Sec. 2(a).);
  • “For instance, in one pending case in the Superior Court of the District of Columbia, The Attorney General is using the CPPA…there remains the possibility that a District of Columbia court might question whether the District has authority to bring a CPPA enforcement action…” (Resolution 22-33 in the Council of the District of Columbia, adopting the “At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act” of 2017, Sec. 2(c));
  • “There are active CPPA enforcement cases and non-public investigations in the landlord-tenant arena that could be jeopardized by a wrong interpretation of the CPPA’s landlord-tenant exclusion” (Resolution 22-33 in the Council of the District of Columbia, adopting the “At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act” of 2017, Sec. 2(f)); and
  • “…there exists an immediate need to clarify existing law on an emergency basis so that current District tenants…are not potentially robbed of the full protections due them under District law” (Resolution 22-33 in the Council of the District of Columbia, adopting the “At-Risk Tenant Protection Clarifying Congressional Review Emergency Amendment Act” of 2017, Sec. 2(g)).

The tenants demonstrated the significance of the fact that the D.C. Council named the pertinent amendments “clarifying”. They so named the Amendments because the D.C. Council never intended that the DCCPA not to be enforced by private parties and/or the attorney general. The original 2000 amendment was limited to the DCRA, and the later Acts confirmed this limitation. The term clarify means to “make clear”, to “free from confusion”, under the clear meaning of that term. Merriam-Webster’s online Dictionary; Funk & Wagnall’s New Comprehensive International Dictionary of the English Language, Publishers Guild Press (1978).

The Court held in favor of the tenants and denied defendants’ motion to dismiss. This decision is significant for several reasons, including (1) there are many instances of landlord violations of tenants’ rights under the DCCPA; and (2) the DCCPA allows for treble damages.

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