Tenant Opportunity to Purchase Act (TOPA)

The District of Columbia Department of Housing and Community Development (DHCD) administers innovative programs to assist low-to-moderate income District residents threatened with displacement because of the sale of their building. District law states that tenants in buildings up for sale must be offered the first opportunity to buy the building (DC Law 3-86, the “Rental Housing Conversion and Sale Act of 1980” under which falls the Tenant Opportunity to Purchase Act (TOPA).

What is TOPA?

The Tenant Opportunity to Purchase Act (TOPA) provides legal protections to tenants by helping them avoid being unfairly displaced.

TOPA provides that before an owner may sell, demolish, or discontinue housing use of a rental accommodation, the owner must give tenants an opportunity to purchase and a right of first refusal to match a third party contract. Tenants have the power to assign their opportunity to purchase to any party for any consideration a tenant deems acceptable in her sole discretion.

Below is the process for:

Single Family Dwellings
2 – 4 Unit Buildings
5+ Unit Buildings

Single Family Dwelling

On July 3, 2018, a new law became effective that exempts single family dwellings from TOPA, unless occupied by elderly or disabled tenants.

However, an owner of such an exempted single family is still required to give tenant(s) notice within three calendar days of soliciting or receiving an offer of sale (DHCD Form 1).

Owner may also send notice of intent to sell, demolish, or discontinue use as rental housing. (May be combined with DHCD Form 1).

Tenant(s) has no further TOPA rights if tenant is not elderly or disabled AND signed a written lease on or before March 31, 2018 AND took occupancy on or before April 15, 2018.

Notice is good for one year (unless new tenant(s) have moved in).

Any tenant may make an offer to purchase the property outside of the TOPA context. (The same as any other prospective buyer.)

What is a Single Family Dwelling?

A single family dwelling or a Single Family Accommodation (“SFA”) is a structure (freestanding or attached) that contains room(s) forming single living space and kitchen, intended for living, eating, and sleeping. (ie; house, row home, townhouse, condo)

Single-family house
Single-family house with accessory dwelling unit(s)
Condominiums
Co-ops

What is an Accessory Dwelling Unit?

An Accessory Dwelling Unit (“ADU”) is a rental unit secondary to principle SFA, but has separate kitchen and bath (and maybe entrance) (“ADU”) Rental unit secondary to principle SFA, but has separate kitchen and bath (and maybe entrance). (ie; basement apartment in house)

Significant Provisions of the TOPA Single-Family Home Exemption Amendment Act of 2017

The significant provisions of the TOPA Single-Family Home Exemption Amendment Act of 2017 (Bill 22-0315) are as follows:

Also exempted from TOPA are single family dwellings with an Accessory Dwelling Unit and a single rental unit in a condo, co-op or homeowners’ association.
An owner of exempted units must give tenants notice within three calendar days of receiving an offer of sale.
Elderly and disabled tenants who signed a lease to occupy an exempted unit by March 31, 2018 and took occupancy by April 15, 2018, will have a limited opportunity to purchase or assign their rights. They must provide documentation verifying their status.
DHCD’s Rental Conversion and Sale Division (CASD) will determine an elderly or disabled tenant’s status.

Solicitation Notice (DHCD Form 1)

Within 3 calendar days of soliciting or receiving, in writing, an offer to purchase a SFA, an owner who has intent to sell shall deliver a written notice of the offer to all tenants in the SFA.

Any tenant may make an offer to purchase the property outside of the TOPA context.

Notice is good for one year (unless new tenant(s) have moved in).

Civil damages against owner is only remedy. No lis pendens, TOPA Title V remedies, or other remedies preventing sale.

TOPA Eligibility (Tenant)

After a Notice (DHCD Form 1) is sent, a tenant residing in an SFA has TOPA rights if all of the following are true:

signed a written lease on or before March 31, 2018; AND
took occupancy on or before April 15, 2018; AND
is elderly or has a disability.

Status Inquiry Notice

In order to determine whether tenants claim elderly or disability status, owner may send notice of intent to sell, demolish, or discontinue use as rental housing prior to sending offer of sale. Must be sent to tenant and Office of the Tenant Advocate (“OTA”) on the same day, and may be combined with Solicitation Notice.

Owner may not issue Offer of Sale more than 60 days after Status Inquiry Notice.

Claim of elderly or disability status (DHCD Form 2)

Tenants have 20 days from receipt of status inquiry notice to deliver to owner written response claiming elderly or disability status. >> Failure to timely deliver response results in waiver of TOPA rights.
All tenants must go through this process and provide documentation for age or disability, even if they have previously filed for elderly / disability status with the District.

Documentation supporting claim of elderly / disability status (DHCD Form 4)

For elderly status: Passport, birth certificate, D.C. driver’s license or ID, or “other such documentation as the Rental Conversion and Sale Administrator deems sufficient.”

For disability status: Social Security award letter, doctor’s letter, or “other such documentation as the Rental Conversion and Sale Administrator deems sufficient.”

Documentation is due to DHCD (not to owner) within 20 days of receipt of offer of sale.

Offer of Sale (DHCD Form 3)

Owner must send Offer of Sale to all eligible tenants, DHCD, and OTA (on the same day).

Statement of Interest

Tenants have 20 days from receipt of Offer of Sale to deliver written statement of interest to owner and DHCD.

Negotiation Period

Begins when owner receives statement of interest and allows 25 days for the parties to negotiate a contract.

Settlement / Financing Period

Provides tenant 45 days to secure financing. May be extended to 75 days if lender needs additional time for financing.

Assignment of TOPA Rights

The only consideration allowed for assignment of TOPA rights is to continue renting property for another 12 months at the same rental rate. Tenants may not receive financial payments or other compensation for assigning TOPA rights. During the 12-month period:

Tenants may not receive consideration to vacate the unit. (No “cash for keys” agreements).
Tenants may be evicted only for (1) non-payment of rent; (2) breach of lease; and (3) criminal activity.

Assignee of TOPA rights may re-assign them only once, without consideration, and only to a private or nonprofit corporation or partnership of which assignee is an owner, managing member, or officer.

What if you don’t have TOPA rights?

Tenants in SFAs who no longer have TOPA rights remain entitled to all other tenant protections under DC law.

TOPA Notice of Transfer Forms (Single Family Dwelling)

DHCD Form 1

DHCD Form 2

DHCD Form 3

DHCD Form 4

2 – 4 Unit Buildings

This includes duplexes, triplexes and quads only.

Landlord Makes Offer of Sale

Before selling the rental accommodation, the Landlord must provide the Tenant with an Offer of Sale, regardless of whether a Third Party contract is already in place. For an Offer with a Third Party contract, the Landlord must provide the Tenants with a copy of the contract within 7 days of Tenants’ request.

Tenants May Request Information

Upon receiving an Offer of Sale, the Tenants may request certain information, which the Landlord must provide within 7 days of the request, including:

Building floor plan
Itemized list of operating expenses, utility consumption rates, and capital expenditures for the previous 2 years.
Most recent rent roll, list of Tenants, and list of vacant apartments.

Tenants Submit Statement of Interest

To collectively exercise the right of purchase, the Tenants must deliver a written Statement of Interest to both the Landlord and the Mayor (at DHCD’s Rental Conversion and Sale Division). The statement must be sent by certified mail, or delivered in person, within 15 days of receipt of offer of sale by the Tenant or the Mayor, whichever is later.

Note: An official Tenant Organization is not a requirement.

If the Tenants collectively fail to do so, an individual Tenant has an additional 7 days to exercise the right of purchase through a written Statement of Interest on his or her own behalf.

Tenants Collective Statement of Interest Due Date

Documents should be delivered no later than the 15th day after the later of when (a) DHCD received the offer of sale or (b) the Tenants received the offer of sale.

Individual Tenant Right to Purchase

If the Tenants acting together do not submit a written Statement of Interest in the 15 day period, then an individual Tenant has 22 days from receipt of the offer of sale or receipt of the offer of sale by the Rental Conversion and Sale Division, whichever date is later, (i.e. 7 days after the 15-day period for the group of Tenants has expired) to provide a statement of interest to both the Landlord and the Rental Conversion and Sale Division.

On or before the 22nd day, the individual Tenant must provide his written statement to both the Landlord and the Rental Conversion and Sale Division either by sending the statement by certified mail or by hand delivery. This means that the Tenant must hand deliver the acceptance letter by the 22nd day or mail the acceptance letter by certified mail no later than the 22nd day.

Tenants Negotiate with Landlord

The law allows a minimum 90 day negotiation period after the current Landlord receives the Tenants’ Statement of Interest.

The 90 days can be extended one day for each day the Landlord fails to deliver information required by TOPA.
The 90 days can also be extended by 15 days if the Landlord enters into a contract with a Third Party before or during the negotiation period. This is called a right of first refusal period.
An individual Tenant may extend the negotiation period 30 days upon failure of the collective Tenants to reach an agreement.

The Landlord and the Tenants must negotiate in good faith. While the statute does not define good faith, it does give examples of bad faith:

Landlord’s failure to offer the Tenants a price or term at least as favorable as that offered to a Third Party, within the negotiation period, without a reasonable justification for so doing;
Landlord’s failure to contract with Tenants with terms which substantially conform with the price and terms of a Third Party contract without a reasonable justification for so doing; or
Intentional failure of the Tenants or the Landlord to comply with the TOPA statute.

Right of First Refusal: Tenants have the right to match the material terms of any contract for sale between the Landlord and a Third Party. The law gives the Tenants 15 days to match the contract. If the Landlord gives the Tenants the contract during or before the negotiation period discussed above, 15 days are added to the end of the negotiation period.

The Landlord may not require the Tenants to prove financial ability to purchase as a condition to entering into a contract, and the Landlord may not require the Tenants to pay the purchase price in installments unless the Landlord provides financing on terms reasonably acceptable to the Tenants.

The Landlord, however, may require the Tenants to pay a deposit of up to 5% of the contract sales price in order to make a contract. The deposit is refundable in the event of a good faith failure of the Tenants to perform under the contract.

Instead of purchasing the building outright, Tenants can assign or sell their rights to other groups. Using this right, Tenants can use their rights to negotiate better building conditions, limit rent increases or for other benefits.

Tenants & Landlord Reach Settlement

Tenant will have not less than 90 days from the date of contracting to secure financing and financial assistance. If the lending institution states in writing that a decision regarding financing will be made within 120 days after contracting, the Landlord is required to grant that extension.

Start-Over Period

If the Landlord has not entered into a sales contract within 240 days of the Offer of Sale, the TOPA process must start over with a new Offer of Sale.

TOPA Offer of Sale and Right of First Refusal Forms (2 – 4 units)

Offer of Sale With a Third Party Contract – 2-4 Rental Units

Offer of Sale Without a Third Party Contract – 2-4 Rental Units

Right of First Refusal – 2-4 Rental Units

Five Or More Unit Buildings (5+ units)

Keep in mind, if the building contains more than four rental units, TOPA makes it clear that only a valid tenant association has the right to take advantage of the law when this property is sold.

Landlord Makes Offer of Sale

Before selling the rental property, the Landlord must provide the Tenants with an Offer of Sale, regardless of whether a Third Party contract is already in place. For an Offer with a Third Party contract, the Landlord must provide the Tenants with a copy of the contract within 7 days of Tenants’ request.

Tenant May Request Information

Upon receiving an Offer of Sale, the Tenants may request certain information, which the Landlord must provide within 7 days of the request, including:

Building floor plan
Itemized list of operating expenses, utility consumption rates, and capital expenditures for the previous 2 years.
Most recent rent roll, list of Tenants, and list of vacant apartments.

Tenant Organization Required for Tenant Purchase

Only an incorporated Tenant Organization may exercise the right to purchase an accommodation with 5 or more units. Thus, Tenants must form and incorporate a Tenant Organization if such an organization does not already exist.

Tenant Organization Submits Statement of Interest

If a Tenant Organization does not already exist, the newly created Tenant Organization must deliver a Statement of Interest and Application for Registration within 45 days of receipt of the Offer of Sale by the Tenants or the Mayor, whichever date is later.

If an incorporated Tenant Organization already exists, the existing Tenant Organization must deliver the same documents within 30 days of receipt of the Offer of Sale by the Tenants or the Mayor, whichever date is later.

Once registered, the Tenant Organization will be the sole representative of the Tenants and the offer of sale is an offer to the Tenant Organization.

The Tenant Organization must send by certified mail or deliver in person a Statement of Interest and Application for Registration to both the Landlord and the Mayor (at DHCD’s Rental Conversion and Sale Division) located at:

District of Columbia Department of Housing and Community Development
Rental Conversion and Sale Division
1800 Martin Luther King, Jr. Avenue, S.E.
Washington, D.C. 20020

Telephone (202) 442-4407 | www.dhcd.dc.gov

A Tenant Organization Registration Application includes:

Names and contact information for Tenant Organization officers and the Tenant Organization’s attorney (if any);
Copies of the certificate of incorporation, the articles of incorporation and bylaws; and
Documentation that the Tenant Organization represents at least a majority of the occupied units at the time of registration. ——————– Note: When determining if the Tenant Organization represents a majority, Tenants who have worked for the Landlord in the last 120 days or have lived in the housing accommodation less than 90 days are not counted toward the majority. Such individuals can, however, join the Tenant Organization.

Remember, that the Tenant Organization should also include a letter indicating interest in purchasing the housing accommodation.

Tenant Organization Negotiates with Landlord

The law allows a minimum 120 day negotiation period after the current Landlord receives the Tenant’s Statement of Interest.

The 120 days can be extended one day for each day the Landlord fails to deliver information required by TOPA.
The 120 days can also be extended by 15 days if the Landlord enters into a contract with a Third Party before or during the negotiation period. This is called a right of first refusal period.

Landlord and the Tenant Organization must negotiate in good faith. While the statute does not define good faith, it does give examples of bad faith:

Landlord’s failure to offer the Tenant Organization a price or term at least as favorable as that offered to a Third Party, within the negotiation period, without a reasonable justification for so doing;
Landlord’s failure to contract with Tenant Organization with terms which substantially conform with the price and terms of a Third Party contract without a reasonable justification for so doing; or
Intentional failure of a Tenant Organization or a Landlord to comply with the TOPA statute.

Right of First Refusal

Tenant Organization has the right to match the material terms of any contract for sale between the Landlord and a Third Party. The law gives the Tenants 15 days to match the contract. If the Landlord gives the Tenant the contract during or before the negotiation period discussed above, 15 days are added to the end of the negotiation period.

The Landlord may not require the Tenant Organization to prove financial ability to purchase as a condition to entering into a contract, and the Landlord may not require the Tenant Organization to pay the purchase price in installments unless the Landlord provides financing on terms reasonably acceptable to the Tenant.

The Landlord, however, may require the Tenant Organization to pay a deposit of up to 5% of the contract sales price in order to make a contract. The deposit is refundable in the event of a good faith failure of the Tenant to perform under the contract.

Instead of purchasing the building outright, a Tenant Organization can assign or sell it’s rights to other groups. Using this right, a Tenant Organization can use his/her rights to negotiate better building conditions, limit rent increases or for other benefits.

Tenant Organization & Landlord Reach Settlement

Typically the Tenant Organization will have 120 days after the date of contracting to secure financing and financial assistance. There are also extension provisions to this rule, particularly if a lending institution estimates in writing that a decision with respect to financing or financial assistance will be made within 240 days after the date of contracting, the Landlord shall afford an extension of time consistent with that written estimate.

Start-Over Period

If the Landlord has not entered into a sales contract within 360 days of the Offer of Sale, the TOPA process must start over with a new Offer of Sale.

TOPA Offer of Sale and Right of First Refusal Forms (5+ units)

Offer of Sale with Third Party Contract, 5 or More Units – The Offer of Sale Form is used when an owner gives the tenants an opportunity to purchase after the owner has accepted (ratified) a third party sale contract for the housing accommodation.

Offer of Sale without Third Party Contract, 5 or More Units – The Offer of Sale is used when an owner gives the tenants an opportunity to purchase before the owner has accepted (ratified) a third party sale contract for the housing accommodation.

Right of First Refusal, 5 or More Units – The Right of First Refusal notifies the registered tenant organization after the owner has accepted (ratified) a third party sale contract for the housing accommodation. This Right of First Refusal is used only when the owner has issued an Offer of Sale Without a Third Party Sale Contract (Form B) and the tenants formed a tenant organization and filed a tenant organization registration application.

Tenant Organization Registration Package Application

DOPA Notification Form for Housing Accommodations with Five (5) or More Rental Units

“Accessory dwelling unit” means a rental unit that is secondary to the principal single-family dwelling in terms of gross floor area, intensity of use, and physical character, but which has kitchen and bath facilities separate from the principal dwelling, and may have a separate entrance.”

“Affordable Rental Unit” means a Rental Unit for which the Monthly Rent, plus Utilities, at the time the Mayor received the Offer of Sale, was equal to or less than the Maximum Rent for a Rental Unit at the fifty percent (50%) MFI Level.

“Agency” means the District of Columbia Department of Housing and Community Development or other District agency to which the Mayor delegates authority to administer the Act. “Household” means all persons living in a Rental Unit, which may include a single family, one (1) person living along, two (2) or more families living together, or any other group of related or unrelated persons who occupy a single Rental Unit.

“Homeowners association” means a mandatory membership association of owners of residential real property created and formed pursuant to a recorded instrument including a declaration of covenants, limitations, and conditions, which subjects property within the homeowners association to certain restrictive covenants.

“Housing Accommodation” means a structure in the District of Columbia consisting of one (1) or more Rental Units and the appurtenant land.

“Maximum Rent” means the highest amount chargeable for a particular Rental Unit such that a Household of the Rental Unit’s imputed Household size that earns the applicable MFI Level will expend no more than thirty percent (30%) of its annual income on Monthly Rent and Utilities, as set forth in the Rent and Income Schedule. For purposes of this paragraph, the imputed Household size applicable to a unit is: (i) in the case of a unit which does not have a separate bedroom, one (1) individual; and (ii) in the case of a unit which has one (1) or more separate bedrooms, one and one-half (1.5) individuals for each separate bedroom.

“Median Family Income (MFI)” means the area median income for the Washington Metropolitan Statistical Area as set forth by the United States Department of Housing and Urban Development, adjusted for Household size, without regard to any adjustments made by the United States Department of Housing and Urban Development for the purposes of the programs it administers. Adjustments of area median income for Household size shall be made as prescribed in Section 2(1) of the Housing Production Trust Fund Act, effective March 16, 1989 (D.C. Law 7-202; D.C. Official Code § 42-2801(1)).

“MFI Level” means a specified percentage of MFI.

“Monthly Rent” means the entire amount of money, money’s worth, benefit, bonus, or gratuity demanded, received, or charged by a housing provider as a condition of occupancy or use of a Rental Unit, its related services, and its related facilities, in accordance with Section 103(28) of the Rental Housing Act (D.C. Official Code § 42-3501.03(28)).

“Rent and Income Schedule” means a document published in the D.C. Register pursuant to Chapter 24, Title 14 DCMR.

“Rental Unit” means a subset of a Housing Accommodation which is vacant, rented, or offered for rent for residential occupancy, including but not limited to an apartment, efficiency apartment, room, suite of rooms, and its appurtenant land.

“Single-family accommodation” means: (A) A housing accommodation, whether freestanding or attached, and the appurtenant land that contains: (i) One single-family dwelling; or (ii) One single-family dwelling with one accessory dwelling unit OR (B) A single rental unit in a condominium, cooperative, or homeowners association, as that term is defined in D.C. Official Code § 47-871(2).

“Single-family dwelling” means a structure, whether freestanding or attached, that contains a room or group of rooms forming a single living space, which includes a kitchen, that is used or intended to be used for living, eating, and sleeping, and the structure’s appurtenant land.”

“Tenant Organization” means an organization registered with the Agency in accordance with Section 411 of the Act (D.C. Official Code § 42-3404.11) or its assignee.

“Utilities” means water, sewer, electricity, natural gas, trash, and any other fees required by the owner, property manager, or condominium or homeowners’ association in order to occupy the unit, including but not limited to mandatory condominium, homeowners’ association, amenity or administrative fees.

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