The D.C. Superior Court recently denied residents of a nursing facility protections under the Tenant Opportunity to Purchase Act (“TOPA”) (D.C. Code § 42-3401 to -3405) when the residents sought an injunction to temporarily halt the sale of the facility. Mason v. The Washington Home, Civil No. 4813 B (D.C. Sup. Ct. Oct. 24, 2016). The court reasoned that because existing statutory protections governing the closure of nursing facilities create unique safeguards for facility residents and that conflicts exist between nursing facility statutory protections and TOPA, TOPA cannot be applied to nursing facility residents.
Generally, TOPA requires an owner of a “housing accommodation,” prior to selling such housing accommodation, to provide to its tenants an opportunity to purchase at a price and on such terms that represent a bona fide offer of sale. D.C. Code § 42-3404.02 (2016).
The plaintiffs, composed of residents in a nursing facility, alleged, among other things, that their TOPA rights were violated because they were not provided the opportunity to purchase the facility after the owner of the facility contracted to sell to an adjacent property owner. The court denied the plaintiffs’ motion for preliminary injunction and stated that applying TOPA rights to residents of a nursing facility would ignore distinct differences between TOPA and the protections afforded to nursing facility residents under other D.C. laws.
The court examined differences between the terms “tenant” and “owner” as used in TOPA versus the terms “administrator” and “resident” as used in Title 44, Chapter 10 of the D.C. Code (which establishes certain protections specific to nursing facility residents). The distinctions are significant as the treatment of “tenants” under TOPA varies greatly with the treatment of “residents” under Title 44, Chapter 10 of the D.C. Code. For example, a nursing facility administrator must give residents 90 days advanced written notice prior to the voluntary closure of a facility, and the administrator must offer to assist the residents in securing placement in an alternate facility. D.C. Code § 44-1003.11 (2016). No such protections are provided to tenants under TOPA. To apply TOPA to the sale (and ultimate voluntary closure of a nursing facility) would render certain other protections under Title 44, Chapter 10 moot and would discount the other safeguards for nursing facility residents already in place under D.C. laws.
Thus, because certain laws that apply to the closure of nursing facilities were specifically enacted to protect the residents living in such facilities directly conflict with certain TOPA requirements, TOPA rights are not provided to residents of the facilities when the facilities are to be sold or closed. While the court has determined that TOPA rights are not extended to nursing facility residents, one needs to take note of other, arguably more restrictive, requirements prior to acquiring and closing an existing nursing facility in the District.
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