*1 li respondent, while It seems clear law practice practicing law
censed broadly-worded meaning
within the rules, out has in fact been
definition our profession for the mainstream pe Accordingly, think
some time. I some and reorienta
riod of time for reflection profession would
tion to the dictates balance, salutary justified. con On
sidering the nature of misconduct suspen-' respondent, deem history I adequate insure six
sion for months be en respondent’s fitness “to
henceforth . . . mat professional
trusted with period 12 months longer
ters.” my by majority in view carries
adopted punitive considerations
with it rejected improper.
court has heretofore Bar v. Klein District Columbia
See dienst, supra. CORPO- MANAGEMENT
WINCHESTER RATION, Appellant, S. Belton STATEN and Elizabeth
Clara L. al., Appellees. et Belton
Clara STATEN Elizabeth L. S. al., Appellants, et
WINCHESTER CORPO- MANAGEMENT RATION, Appellee.
Nos. 8163. Appeals.
District of Columbia Court of
Argued Jan. July 14,
Decided *2 Sellers, D.C.,
Dorothy Washington, for An- Management Corp., Aubra Winchester D.C., entered an thony, Washington, also appearance. D.C., for Wolf, Washington,
Roger C. Clara et al. Staten FICKLING, YEAGLEY Before HARRIS, Judges. Associate HARRIS, Judge: Associate cross-appeals on us case is before This Branch and Tenant the Landlord Superior Court. Division Civil Management landlord, Winchester separate suits originated Corporation, property for con- were rent; subsequently the cases they tenants contended solidated. of their portions withhold were entitled without apartments were rent because conditioning for a sub- and air hot water Fol- summer of part of the stantial trial, awarded court nonjury lowing a commensurate reductions the tenants rent air water hot the deficiencies with The court period. conditioning during imposition conditioned tenants relief giv- had been credit arrearages after rental land- appeal the On reductions. en find- court’s the trial challenges: lord were tenant-defendants all of the ing that of hot water deprived trial involved, (2) the period ten- portions suspension court’s deficient obligations for rental ants’ cross-appeals, conditioning. On amount an increase seek ants place May at which man- ing of air con- took upon the lack based rent setoffs complaints agement promised pursue the trial a reversal of ditioning and tenants. in and be back in touch with the alleged deficiencies finding that other taken, steps apart- Apparently no corrective individual areas and the common *3 tenants, July, again through and the enough to war- not substantial ments were another let- Wright, the landlord Mrs. sent rent reductions. rant further ter, complaining chiefly hot about a lack of questions presents two related This case conditioning. water and air Attached a land- impression: (1) whether of first that letter were reduced rent checks for habitable obligation to maintain lord’s the July. month of The landlord refused premises1 obligation the breach is the sole checks, accept returned and twice suspend a tenant’s operate of which will rejecting them to the tenants. After rent; pay and whether obligation to time, the second reduced checks habitability coin- implied warranty of filed landlord actions. exclusively requirements with the cides Regulations the District of Housing trial, Wright was the At Mrs. Columbia, not e., deficiencies whether i. tes principal witness for the tenants. She an housing can render covered code kept daily tified that records of she apartment legally con- uninhabitable. We days during she and other tenants may be relieved of clude that the tenant were hot and without water only obligation his full contractual rental testi conditioning.2 Three other tenants implied his when the landlord breaches kept fied that charts of they also informal warranty habitability, the land- and that apartments the extent to which warranty are lord’s duties under such a supplied with hot water and air condition discharged complied has with the when he ing, agreed with and that their records applicable standards set forth in the Hous- Wright’s. manager of Mrs. The resident accordingly ing Regulations. reverse We witness, building, admit as it autho- trial court’s order insofar throughout particular ted that that sum rized rent setoffs for deficient condi- mer, the as often as water was cold almost circumstance, tioning, that in our since prop it was hot. The landlord’s assistant view, provision violated no erty manager, of the build also resident code. affirm the trial order We court’s frequency ing, testified both to the respects. all other lack of hot water and to the fact that building by the same entire was serviced apartment Winchester-Underwood building light evi comprised is boilers. In of this apartments of 80 dence, ten finding trial that all approximately years April 15 old. In 1973, adequate hot Wright, Frances ant-defendants were without president Mrs. days water for in the summer of 1973 69 Winchester-Underwood tenants’ asso- ciation, plainly wrong evi was neither nor without management wrote to the com- support Finding that the ten plaining dence it.3 building conditions in the supply of ants were a continuous requesting meeting without manage- between Housing ment hot representatives. and tenant water violation A meet- 1973, 17-305, Realty Corp., to" § Javins v. First us National 3.D.C.Code authorizes 138 U.S.App.D.C. 369, 1071, both the facts and the law when review 428 F.2d cert. de However, nied, jury. 925, 186, 400 91 case has been tried without U.S. S.Ct. L.Ed.2d judgment set is not to he the trial court’s plainly wrong evi- aside unless it is or without representatives report 2. Floor would to Mrs. support dence to it. Wright particular whether the tenants on a floor were serviced with hot water or air conditioning. The entries on her records reflect their consensus. tion of law into leases.”6 do not now properly went Regulations,4 the trial court holding. stray expand upon nor ten portions of the on to determine what obligations should be abated ants’ rental warranty.5 of the landlord’s
for this breach mutuality our view the Corp., Realty See Javins v. First National relationship contractual tenant and between U.S.App.D.C. F.2d cert. properly seen as the denied, 27 L. U.S. S.Ct. exchange providing for the Ed.2d 185 maintaining dwelling.7 livable récognized as Javins court much when however, not, sustain the doWe legitimately ex “may stated that the tenant obli finding that the tenants’ trial court’s pect hab apartment will be fit for suspended by the gations pay rent were it is period itation for the for which time *4 conditioning failure of the intermittent rented”, precisely and that is such ex “[i]t that the The trial court found equipment. pectations recognizes the that law now conditioning provide air agreed to formal, protection.”8 deserving legal of portion significant to its and that a tenants Therefore, liability for since the tenant’s paid in consideration of the rent was receipt predicated upon the rent is of service, that but. it does not follow breach, only housing, habitable entitled finding that that the tenants were in part, whole or of the landlord’s covenant the air to withhold rent when provide housing abrogates habitable failed, assert such or that the tenants could responsibility tenant’s hold for rent. To possessory action as a in a failures defense potentially devas otherwise could have the rent. of tating depriving of effect of the landlord the rental income needed to maintain urged, trial court The tenants and the premises any condi and correct defective decision, adoped, the view that Javins complain. tions about which the tenants of urban supra, by declaring that “leases habitable as those We define interpreted and dwelling units should be dwelling substantially comply units which contract”, por- any construed like Housing with the standards detailed in the interdependence of the ob- tended a mutual Regulations. that are satisfied We any pay rent and ligation of the tenant to represents legislative housing code written, the landlord obligation, oral or of requirements of the of habitabil- evaluation so not read Javins to the tenant. doWe ity, requirements set forth and that broadly, it be wise nor do we think would comprehensive. therein are both strict warranty “a of to do so. Javins held that Moreover, they provide accessible and set habitability, by the standards measured objective by judge the criteria which to Housing Regulations for the out warranty. of his landlord’s satisfaction Columbia, opera- implied by District Realty Corp., Javins v. First National Housing 6. Regulations 4. the District supra, 370-71, at at 428 F.2d 1072-73. Columbia, 2402 § reciprocal agree these two that courts Other involved contained 5. All but four of the leases comprise land essence exculpating provision commitments lia landlord from King relationship. See contractual bility lord-tenant hot water. due to the discontinuance (Mo.App. 65, Moorehead, 75 argue attempt v. 495 S.W.2d that did not The landlord Heming Authority Housing v. ; 1973) Boston under its duties such clauses released it from 831, 184, way, 842 N.E.2d 293 realizing Mass. housing code, presumably 363 54, Warthen, ; (1973) Minn. v. Fritz “may or shifted such duties not be waived Wyman, ; Foisy v. Realty agreement.” N.W.2d First National Javins v. 22, 27, P.2d Corp., supra, 379-80, 83 Wash.2d at 1081- at 428 F.2d Island-Car Council Tiber See Tenants Realty Corp., DeFranceaux, National First rollsburg Square 8. Javins 305 F. supra, at 1079. (D.D.C.1969). 428 F.2d Supp. at all, conditioning at do to air expressed by tions not refer views share the Justice to mechanical ventilation.11 Supreme but rather Court Quirico of Judicial every habita- Regulations Massachusetts: me- shall have either natural ble room is not ... present situation re- ventilation, forth the and set chanical reference of a void in the law with one openings, air necessary quirements for dwelling units to required to what recirculation, quality.12 The hous- and air human habitation” “fitness for constitute maintenance ing not mandate the code does had considerable . . have [W]e prereq- conditioning system a of an air attention legislative and administrative Rather, requires habitability. uisite of ... subject. and action on this provided with some that all rooms be short, occupied, been the field has ventilation, the land- and where means of void, any, if has It re- been filled. in lieu provides ventilation lord mechanical only mains for the courts accommo- ventilation, keep it in he must of natural date their rules of common law to enable working order to insure continuous landlords tenants to enforce dwelling. habitability The record detailed, mandatory, precise these tenants were at this case reveals that the standards easily minimum understandable functioning windows possessed all times dwelling units for human fitness permit the ventilation of natural occupation, rather than to create a new *5 depend apartments, they did not implied obligation and undefined which pri- or conditioning system air as their sole years develop require litgation of will explicit mary no source of air. With and define.9 making housing direction from the code use of cool air in the summer to the vital Indeed, it desire to be was a consistent apartments, these we would be (or any) policy of re- legislative with the announced proper exceeding the limits of our authori- living space which led the quiring habitable ty provision. to read in a such habitability imply warranty of courts to Thus, rather than into the modern lease.10 today re Our decision does nor the tenant and leaving to the whim of pudiate right the tenants’ to seek redress deter- the discretion of the trial court to provide the for the landlord’s failure to mine does and does not constitute what during promised conditioning service dwelling purposes of the habitable system periods those in which the was not legis- warranty, we defer to merely functioning. hold that such re of habit- judgments lative on the standards sought by of an may dress not be means ability. posses equitable defense to an action for rent, sion for of for such de- be decided whether the It remains to justify grievance is insufficient conditioning of which the ficient air rent and a landlord’s withholding of defeat complained a violation of constituted ants possessory action.13 Housing Regula- housing code. The Regulations Housing of Housing Authority District Hemingway, of v. 9. Boston Columbia, concurring supra (Quirico, J., 2203 and 2408 §§ at note dissenting part part). in in 12. Id. § 2203. Realty Corp., v. First 10. See Javins National 5(b) governs as- 1076-77; Super.Ct.L supra, 374-75, & T R. at Pines at 428 F.2d in such Perssion, counterclaims of defenses 111 N.W.2d sertion v. Wis.2d provides: Little, possessory (1961) ; Spring, It v. 50 Ill. actions. Jack Inc. King (b) in this (1972) ; In actions v. Counterclaims. 2d N.E.2d 208 prop- recovery Foisy Wyman, supra 7; Moorehead, branch for note recovery erty non- supra the basis of in which note 7. they The tenants’ answers to the equiva- landlord’s which asserted to have been attempt in complaints did not to counterclaim lent value to their loss of air condition- damages, merely ing, they properly asserted money longer but could no assert a money damages defense of a breach counterclaim for for that the affirmative Javins habitability sums, implied warranty paid amount. Had the tenants those violations, through pursuant obligation, to their rental rather based on code them, nonpay- than they sought justify withhold a counterclaim for money upon damages payment the Landlord based 5(b) ment of rent. Rule such might in the assertion of have been available to them the and Tenant Rules allows only any money (The actions. merits of judgment counterclaim for a possible independent payment against of rent or on actions when based on the expenditures against stemming landlord for claimed credits breach contract as However, unjusti- the tenants breakdowns need when rent. fiably portions here.)14 not be withheld those considered joined propriety possessory relief, payment there is for a tenant of rent or which arrears, any recovery is not entitled to rent based on of rent withhold a claim for may equitable de- other asserted breach of contract. defendant assert an dissenting colleague recoupment reader or a counter- Our directs the or set-off fense money judgment which authorize the trial court based on those cases claim for expenditures to determine the amount of rent arrears rent or on claimed However, purely possessory equitable in a even action. credits rent or clear, premises. cited make de “[t]his No other the cases relief related to the counterclaims, personal termination ... is but incidental whether based on (cid:127) basically may primary injury otherwise, in this claim which remains be filed essentially possession.” George one for This exclusion shall without branch. Worthington Management Corp. prosecution prejudice claims Y. & Son of such to the Levy, D.C.App., 204 A.2d branches of the court. purpose determining in ar the rent only. procedural 5(b) It neither Rule rears is to allow the tenant to avoid eviction legi- nor confers substantive defenses *6 new by paying procedure the rent due. This was Thus, by a in the tenant. timizes default by followed the trial court in the instant permits interposition of the rule the while However, power the case. the to assess setoff, recoupment is silent
claims of or summary posses- in rent owed a amount of sory respect of the claims with to the nature expanded give action does not rise to an cognizable. which thus are simultaneously adjudicate authority all to con recoupment equitable The defenses of flicting ten claims between the landlord and may setoff are counterdemands which reduce See, g., Doby, U.S.App. e. Tutt v. ant. 148 plaintiff’s or defeat a claim. No affirmative 1195, 171, 174-75, F.2d 1198-99 D.C. recovery See is allowed on such defenses. 3 Moore’s Federal Practice 13.02 note ¶ multiplicity a where, here, the avoidance of While land- Thus it the follows that goal, salutary judicial obviously possessory is an actions sole is a one based lord’s action objec- well-recognized equally upon nonpayment rent, only germane valid and prompt an the possessory recoupment settlement of the tive is disputes. set- defenses in the nature of or 56, Normet, Lindsey sufficient, 405 U.S. See in off are those which would be ; 862, D.C. part defeat, L.Ed.2d 36 S.Ct. in landlord’s whole or to the 16-1501-1503, 45-910; Super. unjustifiably §§ to Code claim that pay the tenants failed further defeat owed, decline to & T R. 1. We Ct.L rent is landlord rent. Unless the possessory summary However, action possession. nature of a a the by is not entitled to sanctioning right therein of addi- the resolution in the tenant to withhold rent is rec- might ognized only seek the tenant claims which tional where there has been a breach of perceive interpose. warranty habitability bur- no unwarranted the a the result of holding resulting Through from our the tenant existence of den on code violations. opposite outweigh interposed basis, an the effect a defense a tenant would on that which holding already-impeded prove can would have seek to that no because rent is owed pro- possessory summary justified. unique his overburdened default was In the con- and ceedings. disadvantage summary posses- at which text The of a landlord’s suit for litigation during sion, premised upon such a finds himself defense a landlord failure perform recognized. obligations Bell v. Tsintolas the inappropriate. See landlord to is has been other U.S.App.D.C. Realty Co., part a Such failure on the assessing is irrelevant in F.2d Finally, we find no in recoupment error the trial equitable defense of or set- conclusions deficien- equitable off ... or for relief re- complained (in cies premises. common . . . [Empha- areas lated and in particular apartments) certain sis supplied.] either insubstantial had been remedied majority have amended rule since and, therefore, did not call for further rent they require tenant to seek relief for a reductions. in another action in an- contractual breach
We affirm the trial court’s order of rent other branch of the trial court. ma- water, setoffs for lack of hot jority reverse the concede that if the tenants had not granted setoffs for lack of air conditioning portion a rent for withheld lack of service, and remand cases might further conditioning, for the tenants have proceedings opinion. consistent with this right 5(b) (or under to counterclaim Rule assert set-off) action. part, reversed in part, and
Affirmed remanded. effect, majority that a In hold ant, 5(b), in order invoke Rule must not FICKLING, Judge (dissenting Associate non-housing rent for code viola- withhold part): Payment rent is not a condition tions. asserting a set-off under Rule precedent to The majority contravene both the ex- authority majori- cited No is 5(b). press language Super.Ct. L 5(b) & T R. ty requirement, such such for a novel jurisdiction established case law this holding nothing legislating more than an when they (at p. 191) state that: Superior Court Rule 5(b), amendment to Our today does repudiate decision not authority to we no do. have right tenants’ to seek for the redress departure justify their seeking provide prom- failure to 5(b), of Rule dictate clear ised air conditioning service during those majority argue that a failure periods system in which the not was conditioning is not Javins promised merely functioning. holdWe that such agree that the breach Although I defense. may sought by redress not means provide air the covenant to an equitable defense to an action housing code viola- not constitute a does rent, certainly does not de- tion, this conclusion such grievance justify insufficient to the value of right tenant’s to set-off feat a the withholding of rent and defeat 5(b) does unprovided service. Rule *7 action. right of set-off to attempt limit the to not I dissent holding from this and would af- involving code viola- the Javins situation firm the trial judgment court’s allowing tions. set-off for failure to air condi- tioning provided as in agree- the rental attempt majority’s to en- Moreover, the ment. right set- to a graft such limitation law case in of established flies the face off Rule clearly 5(b) a allows as- tenant to Worthing Y. jurisdiction. George in this sert equitable of defense in an set-off Corp. v. D. Levy Management ton & Son action recovery possession for of for non- Seidenberg C.App., (1964); 204 A.2d provides of rent. 5(b) Rule in A.2d 499 Burka, D.C.Mun.App., 106 v. pertinent part: Buchanon, D.C.Mun. (1954); Zindler v. In v. Lalekos actions in App., (1948); this branch recovery for A.2d possession of Manset, A.2d property D.C.Mun.App., in which the basis brought recovery is landlord nonpayment Lalekos, In a rent of rent nonpayment may possession defendant for assert an for suit if situation a different defendant. would have building to of an entire leased possession had filed suit for the landlord had leased all three Although the tenant nonpayment of a other than building, upper floors for reason two floors of the Moreover, dealing not with we are by party. rent. occupied another a counterclaim unoccupied the tenants filed possession case where took of the one ant money damages in of the rent excess partial for pay offered to rent. floor and circumstances, may such brought owed. Under refused these tenders and pur- required to that a tenant should be trial reversing In possession. suit for remedy in anoth- sue his in another action directed verdict in favor er branch of the trial court. Under landlord, this at 620: court stated case, however, 5(b) facts of this Rule jurisdiction, it is well estab- the set-off clearly allows a tenant to assert possession possession lished a tenant sued for for defense the action non-payment property of rent nonpayment of real for for of rent.
may by equitable an defense suf- defend case, requirement present In the ficient to defeat the landlord’s claim independent suit in an- an the tenants file part, may in rent whole or in or defend unjustified. of the court branch other par- by way recoupment for a total or by disputes requires resolution This tial failure in of consideration order encouraging than route rather circuitous . avoid . . circuity action. [Foot- disputes litigate all of parties to note omitted.] therefore, contrary to is, one action More- 5(b). policy Rule reflected Moreover, requiring tenants to might well have over, requirement such a pursue bringing a the circuitous route of wishing to assert chilling upon one effect action, separate majority an overlook rights. his procedure juris long-standing in this It is that in a diction. well settled suit reasons, I the above Accordingly, for rent, dissent. required finding trial court is to make a rent, any, to the amount of if owed George Worthington Y. Son
tenant. &
Management Corp. supra Levy, at 336.
This is required a tenant because has
right pay any anytime back rent owed stay
before or judgment after order to Petitioner, judgment BARBER, enforcement of restitution. Mary House, Inc., D.C.App., Molyneaux v. Town 195 A.2d In order to de DEPARTMENT DISTRICT OF COLUMBIA termine the amount owed to avoid RESOURCES, Respondent. HUMAN OF forfeiture, permits 5(b) Rule the tenant No. 9180. recoup, set-off the rent owed any equitable prem defense related Appeals. *8 District of Columbia Court ises. Since the trial court found that the Argued 9, 1975. Oct. agreed significant portion and that .a of the rent Aug. 3, 1976. Decided paid inwas consideration for that air con ditioning service, isit clear that under Rule
5(b) the tenants should be allowed to set-
off the rent owed the of air cost
conditioning service which the landlord provide.
failed to