Last year, following a tour of buildings where tenants successfully used the Tenant Opportunity to Purchase Act to improve their housing, At-Large Councilmember Robert White was bullish on the long-standing law.

“It is clear that this tool has been successful at preserving and producing affordable housing for residents in different parts of the city,” White told the Informer in February 2024, adding: “In the coming months, I plan to explore how to strengthen TOPA to both benefit residents and increase affordable housing.” 

He added that he planned to assess how to implement a set of recommendations in a report by the Coalition (formerly the Coalition for Nonprofit Housing and Economic Development).

But by April of this year, as White was standing before a room full of landlords, he was singing a different tune. The chair of the D.C. Council’s Committee on Housing, and former (and likely future) candidate for mayor, aligned himself with the group’s long-held opposition to what has been a cornerstone of tenant rights in D.C.

The Tenant Opportunity to Purchase Act, or TOPA, has been law since 1980. It gives tenants the right of first refusal to purchase their building if their landlord decides to sell, or more commonly, the ability to assign their rights to another party.

The law has been a thorn in the side of D.C. landlords almost since its inception, and now there could be momentum to effectively gut it, driven by anecdotal claims that TOPA hinders investment in multifamily building construction.

Mayor Muriel Bowser’s Rebalancing Expectations for Neighbors, Tenants, and Landlords (RENTAL) Amendment Act would eliminate TOPA rights for broad swaths of market-rate and low-income tenants. It would also exempt ownership transfers involving new limited partners—a maneuver that some property owners exploit for profit, sometimes without tenants’ knowledge.

During his meeting with landlords, White said TOPA is “the biggest issue with investment in D.C. housing,” and that Bowser’s bill doesn’t go far enough. He instead advocated for a blanket 15-year exemption from the law for all new construction or substantial renovations.

The District issued its lowest share of multifamily housing permits in more than a decade, White said in support of his position. “It’s not just the big developers and landlords, it’s folks like the Washington Housing Conservancy, it’s folks like Amazon housing that are doing more affordable housing deals around us than in D.C.,” he said.

But tenant advocates strongly dispute the claims that TOPA is the cause of investor flight or the decrease in new construction, warning that it would be “reckless” to pass these “ambiguous new exemptions” in Bowser’s bill. They argue, broadly, that the proposed changes are based on anecdotal data and “flawed and dangerous” assumptions and would significantly gut tenants rights.

Even Amazon disputes some of White’s assertions.

Amazon spokesperson Maggie Sivon tells City Paper that the retail giant’s Housing Equity Fund has financed more than 3,000 units in D.C. (out of the total of 9,500 it’s created or preserved in the National Capital Region). Amazon has invested in D.C. as recently as April, when it provided an $11.6 million loan for a 90-unit affordable housing project in Shaw.

Near the end of the landlord meeting, White discussed his goal to quickly push the proposals through the legislative process.

“As soon as we get the budget from the mayor, I will propose a hearing date. If they say, ‘No,’ I’m going to come back to you and say, ‘I’m gonna need y’all to help lobby and to make sure we get a hearing.’ But I would like to get this passed before we go on recess,” White said.

Dean Hunter, founder of advocacy group Small Multifamily Owners Association, eagerly responded: “We appreciate you giving us that notice. We’re on notice, guys, we got to get ready.”

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When City Paper requested the data that White is relying on to support his proposed changes to TOPA, his office provided three key sources: a Bisnow article, a report by the Washington DC Economic Partnership, and a 2025 report from the DC Policy Center. (City Paper owner Mark Ein sits on the Policy Center’s board.) Each paints a picture of investor uncertainty and a 79 percent drop in new construction.

“Some people … make programs more sacred than the people the programs are intended to help,” White told the room full of landlords last month. “If we look at the data, these changes to TOPA will not hurt the people who are trying to use TOPA. It will help them.”

Will Rich, co-author of the WDCEP report, acknowledges that the report doesn’t connect the decline in new construction to TOPA. Rich, who testified in support of the proposed bill, says in an email, “It’s industry knowledge that it takes longer to sell a building in DC compared to VA or MD because of TOPA. The report does not state the TOPA is the decline of construction starts.” 

The DC Policy Center report, which was based on an analysis of housing records, sales data, tenant association formations, and interviews with 13 “key stakeholders,” notes a significant challenge in evaluating TOPA’s effectiveness due to the lack of reliable data. Still, the report concluded that TOPA, while effective in smaller, older rent-controlled buildings, deters investment in newer, large multifamily housing due to delays, increased costs, and litigation risks. Those costs discourage long-term investment, leading to less new housing and rehabilitation.

The DC Policy Center’s report, “supported” in part by the Developer Roundtable, an unofficial developer advocacy group that has been long-standing proponents of the conclusions and recommendations that the report now makes. 

A 2023 draft of recommendations on a D.C. “comeback plan,” which was shared with City Paper, includes input from Erika Wadlington, vice president of policy and strategic affairs at the DC Building Industry Association, and Richard Lake, former chair of the Developer Roundtable and former president of DCBIA. The draft argues that newer buildings and those with affordability covenants are “inappropriately brought into” or “ensnared” in the TOPA process.

Liz DeBarros, CEO of DCBIA and former DC Policy Center director, has also advocated for targeting TOPA according to the type of building, noting in an October 2023 letter that “40% of transfer tax revenue comes from newer buildings while only 5% of TOPA transactions involve them.” 

The stakeholders interviewed for the final version of the Policy Center’s report include housing providers, investors, brokers, attorneys, and title agents, according to DC Policy Center Director of Policy and Research Emilia Calma. No tenant advocates were interviewed for the report, Calma has said.

The 13 interviewees were asked “if they were not investing in DC due to TOPA,” Calma says in an email to City Paper, and their responses support the conclusion that TOPA is causing investors to leave D.C.

Despite the claims that developers are disinvesting in D.C., the report’s results leave open another possibility: Some developers simply can’t compete in the D.C. market.

“Many affordable developers we talked to said that they were unable to match market rate offers, in particular the cash offers being made to tenants,” Calma says via email.

But those cash buyout offers have “very little to do with TOPA,” according to housing attorney Eric Rome, who testified during a recent Council hearing that those payments are primarily related to enticing tenants to vacate for renovations—a practice that would occur regardless of TOPA.

Missing from the list of resources that White’s office provided to City Paper is the 2023 Council-funded report from the Coalition. (His office did not respond to questions about why the study wasn’t listed as a source of data.) 

The Coalition report found that TOPA was successful in preserving affordable housing and empowering tenants, including the preservation of more than 16,000 affordable housing units and the formation of more than 425 tenant associations.

The researchers compiled a database of TOPA transactions from 2006 to 2020 using public reports, the Department of Housing and Community Development’s internal database, and records from the Coalition’s partners; they also gathered quantitative data on properties, sales, funding, and affordability covenants. The report also draws from 45 interviewees including developers, tenants, and legal services providers who have experience working with TOPA.

The study recommended increasing and expanding funding opportunities for tenants, strengthening tenants rights, rooting out bad actors, improving accessibility to information, enhancing data collection, and establishing a TOPA Improvement Task Force.

“The data set was incredibly comprehensive and overwhelmingly supportive of the idea that TOPA has been a really effective right that has met the goals of the legislation,” says Kathryn Howell, a prominent researcher on affordable housing and one of the contributors of the study.

Howell notes that while some high-profile individuals may have had negative experiences with TOPA, making policy decisions based on a few anecdotal experiences is problematic. 

“None of these developers would make a decision without good data, and so we can’t make decisions based on a few people’s experiences with TOPA,” she says. “We would never listen to a couple of tenants and say, ‘Oh, well, that’s true.’ … So I think that it’s really dangerous to make policy based on a couple of people’s experiences. Nobody in good policymaking, nobody in good business, makes a decision like that.”

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In late May, about a month after White’s meeting with the group of landlords, he held a marathon 13-hour hearing covering a slew of bills, including Bowser’s proposed changes to TOPA.

Specifically, the mayor wants to carve out an exemption for buildings with existing affordability covenants and market-rate buildings that are newly constructed or were substantially renovated within the past 25 years. But there is significant confusion, based in part on the way the bill is drafted, over how landlords will show that their buildings qualify for the exemption.

(Ward 1 Councilmember Brianne Nadeau has introduced a competing bill that calls for a three-year exemption for newly constructed buildings and seeks to add tenant protections recommended by the Council-funded study, including accountability for bad actors and a transparency portal to track outcomes.)

At the hearing, developers argued that TOPA creates excessive delays, costs, and legal uncertainties in the building and sale of rental buildings, deterring investment and hindering new construction and preservation. They claimed TOPA’s unpredictability has caused investors to look outside of D.C. for more predictable markets.

Howell observes that the “talking points were very similar” in 1980 when TOPA was first implemented. The bigger threat to affordable housing construction, more broadly, she says, is that D.C. has reached its bond cap, the federal limit on the total dollar amount of certain tax-exempt bonds that a state or local government can issue. 

After the District reached its limit in 2023, affordable housing developers, who rely on the bonds to access crucial 4 percent low-income housing tax credits, were unable to obtain financing. The lack of federal funding “brought numerous shovel-ready affordable housing projects to a sudden, abrupt halt,” according to Cheryl Cort, policy director for the Coalition for Smarter Growth.

Cort stated in written testimony to White’s committee last year that “we should all be alarmed that little to no new rental housing projects are being financed as of August 2023—for an indefinite period. … Now dozens of affordable housing projects—that we and thousands of DC residents and tenant associations fought for—are being sold off, defaulting, or stranded in an untenable limbo.” 

James Campbell, principal at Somerset Development, says while the bond crisis has been catastrophic for affordable housing construction, TOPA has no connection. 

Campbell, whose recent experience with TOPA would be considered a negative outcome by the DC Policy Report, does not agree that tenants should forfeit their TOPA rights just because a developer lost out on a deal.

“Tenants have the right to make their own choice on what’s best for them,” says Campbell, whose firm lost its ownership of the Urban Village, a property it had owned for more than two decades, after tenants opted to assign their TOPA rights to another developer. (Somerset aimed to expand the property under a new ownership structure, which triggered tenants’ TOPA rights.) 

Campbell believes some TOPA reform is required to attract private investment back into the District. But he believes investors are pulling away from the District not because of the law itself, but due to the tolling of TOPA during the pandemic, which temporarily suspended the legal deadlines for tenants to exercise their rights. By pausing the clock, lawmakers intended to protect tenants from losing their rights if they were unable to organize or secure financing during the public health emergency. 

But the pause lasted into 2022 and “just killed the appetite for those Wall Street funds and private investment funds” that typically have five- to seven-year life horizons, Campbell says.

Campbell says the lack of government funding in the District prompted Somerset to make a strategic, and, he hopes, temporary pivot to Maryland, where accessible tax-exempt bonds, 4 percent tax credits, energy funding, and philanthropic support made deals feasible. 

While White and the DC Policy Center report have minimized the impact of these proposed amendments on tenants, the vagueness and fluidity in Bowser’s bill that spells out how a building would qualify for the 25-year exemption has some housing advocates worried that it will completely erase TOPA’s protections.

By the end of the hearing, even some councilmembers were confused. 

Ward 3 Councilmember Matthew Frumin raised concerns about landlords who might attempt to raise rents in order to qualify as “market rate” under the parameters laid out in the law. When he asked DHCD Director Colleen Green how the administration will determine whether a building qualifies at market rate, and is therefore exempt from TOPA, she was unable to provide a definitive answer.

“I don’t think there’s one path to getting to what the requirement is,” she said.

Frumin was unsatisfied and suggested that he would like a clearer explanation in writing. “I’m more confused now than I thought I was earlier today,” he said.