From Mayor Muriel Bowser’s perspective, the multitude of renters who made a home in D.C.’s new high-rises deserve less protection than other tenants. At least, that’s what she’s proposing in her Rebalancing Expectations for Neighbors, Tenants, and Landlords (RENTAL) Act.

The bill, introduced in February, would eliminate long-standing rights for more than 34,000 tenants in market-rate buildings, or in buildings that have been substantially renovated, according to one estimate of D.C.’s renter population.

The broad and fluid standard under the RENTAL Act could impact many more tenants. To be exempt, buildings must be built or renovated in the past 25 years, with over 51 percent of units priced at or above 80 percent of the area median income—that’s about $1,900 for a studio unit or $2,030 for a one-bedroom under DHCD’s inclusionary zoning program. This could impact many buildings, including older rent-controlled properties.

Bowser has argued that market-rate (and presumably wealthier) tenants in newer, larger buildings rarely exercise their rights under the Tenant Opportunity to Purchase Act, or TOPA, which allows tenants the right of first refusal if the owner decides to sell their building. By removing those rights, the District can stimulate more new housing construction, Bowser says.

Deputy Mayor for Planning and Economic Development Nina Albert says via email that the bill is intended to modernize the program and ensure that it protects affordable housing and prevents displacement.

“The District’s housing system is facing severe financial distress,” Albert says via email. “Without action, we risk not only our ability to create new housing in the future, but also losing our existing affordable housing and our investments that have made DC a national leader in housing production.”

At-Large Councilmember Robert White has indicated that he supports a blanket 15-year exemption for new construction or substantially rehabilitated properties, potentially wiping out TOPA rights for tenants in neighborhoods like Navy Yard, NoMa, and the Wharf en masse. 

An analysis by local think tank the DC Policy Center shows that newer buildings account for 5.4 percent of TOPA transactions and 3.7 percent of tenant association formations (residents generally must first organize as a TA in order to exercise their TOPA rights). Bowser’s proposed exemptions, the think tank argues, would only affect market-rate buildings “where TOPA is unlikely to effectively create or preserve affordability.”

But tenants and tenant advocates challenge that narrative. While much of the debate around TOPA has focused on affordable housing, interviews with tenants in six large market-rate buildings, representing more than 2,000 units, reveal the benefits of TOPA rights that go beyond simply preserving affordability. 

Tenants who spoke with City Paper view TOPA as a vital tool for improving overall living conditions—including security, timely repairs, and even the ability to have a say in who owns and manages the building. And even if they can afford the higher end of the rent scale in D.C., some tenants who face the threat of steep rent increases and skyrocketing hidden fees have seen the benefits of TOPA. Tenant associations at these buildings have successfully negotiated for limits on rent hikes, greater enforcement of affordability covenants, and improvements to their buildings’ conditions. Just the act of organizing a group of tenants has the benefit of creating greater community and better informing them of their rights.

“TOPA is a fundamental right,” says Kathryn Howell, a professor at the University of Maryland and the director of the school’s National Center for Smart Growth. “It’s like voting. You would never say, ‘Well, your vote really doesn’t impact anything so you don’t need it,’ or ‘You don’t vote so we’re going to go ahead and take it away.’” 

A seat at the table

For Laura De Jaager, the fight over TOPA is deeply personal. The tenant association president at the 266-unit Onyx in Navy Yard, says TOPA has been instrumental in empowering residents in her building. “I’ve lived in my building since 2013, and I don’t want to move,” she says, echoing a sentiment that’s shared by her neighbors, many of whom use vouchers to help pay rent.

The mayor’s office says that task of making exemption determinations for new mixed-income buildings such as the Onyx would fall on the Department of Housing and Community Development, which would review tenant and rent information, along with the building’s age. The exemption certification would be good for one year.

Developers envision buildings for affluent, transient individuals, De Jaager says, so “instead of competing on price, they compete on increasingly absurd amenities, like bowling alleys. … We’re seeing a lot of people now who, when they can’t fill their buildings, they can’t lower the rent because they have to service their debt.”

De Jaager has had multiple experiences using her TOPA rights in the past decade or more; she doesn’t buy the argument that it deters investment in housing.

“I moved here in 2013 when there was nothing around,” she says. “Now when I look out my window, I see many, many buildings that were built with TOPA.”

For tenants of the 603-unit Gale Eckington, formerly a luxury complex on Q Street NE, TOPA enabled them to negotiate critical terms with the prospective buyer, a partnership between the Washington Housing Initiative and Jonathan Rose Companies. 

Former tenant association president Jonathan Gold says he and his neighbors were motivated to engage in the TOPA process because they were unsatisfied with the property management from the previous owner, JBG Smith, whom the buyer initially intended to retain. The tenant association also negotiated an agreement granting a permanent 3 percent rent increase cap for existing tenants; the agreement also gives tenants direct legal standing to enforce the owner’s promise to maintain the majority of the property as affordable.

Unlike projects funded directly by government programs, which often have extensive public reporting requirements, private affordability agreements—such as the one between the buyer and its lender at Gale Eckington—typically lack public transparency and are only subject to private oversight. The negotiated agreement ensured tenants had a vital seat at the table.

After using TOPA to support affordable housing for more than half of the units, the Gale Eckington tenants still face losing their TOPA rights under the RENTAL Act, which also exempts buildings with affordability covenants because, Bowser has argued, they no longer require protection.

According to the mayor’s office, a new market-rate building that converts over half its units to affordable housing would be exempt from the law since it’s no longer market rate.

“Renters are outmatched against developers,” Gold says. The loss of TOPA rights “would put renters in an extremely perilous position of being at the whims of a new owner and without a say in the future of their home.”

Maintaining community and affordability 

Tara Kohli, tenant association president of the 212-unit Loree Grand, doesn’t want to lose the community she’s built with her neighbors.

“This was a community of people who had been living here for a long time,” she says. “We have the same interests in finding a stable place to live.”

Kohli highlights her personal connection to the area: She knows where the bike lanes and grocery stores are, she has relatively easy access to her dog’s vet, and she is particularly fond of the NoMa neighborhood.

“The District has a lot of character in its neighborhoods, and people choose where they want to live based on the character of those neighborhoods,” she adds.

Andrew Frenkel lives in the 132-unit AVA on H. “I could give a fuck who owns this building,” he says. “As long as my ability to live affordably and safely is protected. That’s really what I care about.”

His building is currently going through the TOPA process, and rent caps are at the top of tenants’ list of demands, Frenkel says. 

“I don’t know a single person who doesn’t care about affordability, whether they’re rich or poor,” he says. “Nowadays, having to spend almost $200 on groceries almost every single week limits your ability to find a place to live.”

The buyer has so far resisted putting caps on rent increases, but they have shown willingness to negotiate on other points, such as security enhancements, according to tenant association president Brian Marshall. 

Marshall highlights the board’s dedication to affordability, noting that low-income tenants are guaranteed a seat at the table with nearly half of the board seats permanently dedicated to voucher holders.

While the potential buyer for AVA on H has so far rejected the terms that would put a cap on rent increases, the buyer did offer tenants $1,000 payments in exchange for assigning their TOPA rights.

Tenants who spoke to City Paper about similar cash offers say that they are driven by the buyers, rather than requested by the tenants. And some buyers demand confidentiality agreements, which allows developers to make claims that tenants are demanding excessive buyouts without fear of rebuttal.

According to the DC Policy Center’s analysis, TOPA buyout payments can cost housing investors up to $100,000 per unit before the sale can proceed. But tenants in large buildings who spoke with City Paper say the payments are far lower—ranging from about $1,000 to $5,000 per tenant.

At the AVA on H, where the purchase price is $36 million, according to DHCD’s TOPA report, $1,000 per tenant comes to less than half a percent of the total transaction.

TOPA has limits

While TOPA offers significant protections, it is not without limitations. A building that goes into bankruptcy, for example, can be sold without triggering tenants’ TOPA rights.

Last December, the Onyx’s owner filed for bankruptcy, blaming “the combined impacts of the COVID-19 pandemic and Washington DC voucher program” for the “devastating impact on the successful operation of the Property,” according to a court filing. 

Under new ownership, De Jaager’s building is now managed by RPM Living, a company with a history of Better Business Bureau complaints and allegations of illegal price-fixing. 

De Jaager is already witnessing the challenges. The building’s new management has directed tenants to send rent payments to a P.O. box in Florida instead of the on-site office, which she fears will burden her older, low-income neighbors.

“Some of these new policies might be targeted at making it even more difficult for people who are voucher holders to continue to live here,” De Jaager says.Despite this setback, De Jaager remains optimistic.

She recounts how recent management signs posted in the building demanding a 10 percent late fee for rent paid after the third of the month were immediately recognized as unlawful by her neighbors. “I was so proud,” De Jaager recalls. “Now my tenants can look at a sign like that and say, ‘That’s illegal!’”