Section 45-1561

Citation: Section 45-1561
Parent Document: Habib v. Thurston, 517 A.2d 1 (1986)
Jurisdiction: DC (municipal)
Effective Date: 1986-10-30
Original Source: https://www.courtlistener.com/opinion/1995493/habib-v-thurston/ ↗

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In a notice case, however, code violations are not a defense; they are relevant only to the protective order. On the other hand, a tenant-defendant in a notice case has the right to a jury, Pernell, 416 U.S. at 370, 383, 94 S.Ct. at 1727, 1733, and can ask for certification to the Civil Assignment Office. But there is a practical problem here. Because the Landlord and Tenant Branch retains jurisdiction over a notice case until trial — even when a jury is demanded — the tenant-defendant who elects a jury cannot file a Javins defense or counterclaim in the pleadings to be certified, as the tenant can in a nonpayment case. Super.Ct.L & T R. 2, 5(b). Thus, under present practice, to achieve a jury trial on alleged code violations during a tenancy for which the landlord has served a notice to quit, the tenant must file a separate claim, with a jury demand, in the Small Claims Branch, Super. Ct.Sm. Cl. R. 6 (jury demand), or in the Civil Division, Super.CtCiv.R. 38 (jury demand), in lieu of a counterclaim in the certified notice case. Presumably, however, if the cases went to trial, the tenant could achieve a consolidation, upon motion,20 so that the two could be tried together before a jury in the Civil Division, as are the claim and counterclaim in a nonpayment case. The jury, then, as in a nonpayment case, could consider not only the tenant’s claim for a rent abatement during the period before the possessory action was filed but also her claim for abatement during the McNeal phase.

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