These cases are presented to us in the form of motions for stay of orders of the Landlord and Tenant Branch of the District of Columbia Court of General Sessions and the District of Columbia Court of Appeals. The orders complained of require that before being allowed to go forward with his defense or his appeal the tenant pay rent as it becomes due into the registry of the Court of General Sessions. Similar motions for stay have been presented to us in the recent past.1 Although we have expeditiously decided them on a case-by-case basis, it now appears that the course of judicial economy would be better served by a fuller explanation of our reasoning.

The preliminary pleadings in these cases followed the pattern of the prior cases: respondent-landlord filed in the Landlord and Tenant Branch of the Court of General Sessions a standard complaint for possession based on nonpayment of rent2; petitioner-tenant filed an answer alleging that substantial housing code violations existing at the commencement of the lease rendered the lease unenforceable,3 together with a motion for leave to proceed in forma pauperis and a jury demand.4

Of great consequence in these cases is the distinction between a complaint for possession based on nonpayment of rent and a complaint which seeks both possession and a judgment for rent in arrears.5 One difference is that, when a claim for rent in arrears is added, the tenant will be allowed to assert a counterclaim.6 More importantly, although the summons in a suit for possession may, as a last resort, be served by posting,7 the tenant who is sued for rent in arrears must be served personally.8 Once the suit for possession is filed, a claim for rent may not be subsequently added.9

This was the third complaint within six months for possession of the premises at 464 Neal Place, N. W. based on nonpayment of rent which respondent-landlord Ruppert Real Estate had filed against petitioner-tenant Coates. The realty company had obtained a consent judgment in the first and a default judgment in the second. After petitioner filed his answer to the present complaint, respondent countered with a "Motion to Enter Protective Order by Requiring Defendant to Deposit Rent With Clerk of Court Pending Disposition of This Case." After petitioner's opposition was filed and a hearing was held, the Court of General Sessions entered the following order:

"Motion to pay rent into court granted. Ordered that rent be paid into registry of Court — Motion to proceed in forma pauperis granted on theory that affidavit is true and that tenant has set aside $65 per month — otherwise, affidavit is not true. Tenant admits not having paid rent since November. If rent not put into registry of Court by Feb. 20, 1970, answer to be stricken. Stay not needed, since tenant has to Feb. 20. Case cert'd to Jury Calendar."

The District of Columbia Court of Appeals granted petitioner a temporary stay of that order "until a final determination of the appeal therefrom." However, while the appeal was pending in the form of a motion for summary reversal, the continued proceedings in the Court of General Sessions resulted in summary judgment in favor of respondent-landlord. Petitioner then asked the District of Columbia Court of Appeals for a temporary stay of the order granting summary judgment. Thereupon the District of Columbia Court of Appeals ruled on the two motions before it as follows:

1. The motion for summary reversal of the order requiring that rent be paid into the court registry or that petitioner's answer be stricken was denied as moot.

2. The motion for temporary stay of the effectiveness of the summary judgment was granted on condition that petitioner pay rent from the date of the judgment into the court registry.

Our concern here is only with the latter order; we fully agree with the lower court that the grant of summary judgment eliminated the necessity for deciding the motion for summary reversal of the earlier prepayment order.

This case concerns Apartment 304 at 4030 Livingston Road, S.E. After petitioners' response to the complaint for possession was filed, the court granted respondent's motion that petitioners prepay rent into the registry of the court before being allowed to proceed. The trial court denied petitioners' request for a stay of that order and entered the following order in response to petitioners' motion for leave to proceed in forma pauperis:

"The Court grants the Defendant's motion to proceed in forma pauperis on appeal, provided that the rent now due, or which may hereafter accrue during the pendency of such appeal, shall be deposited into the registry of the Court, provided further, however, that the making of such deposit into the registry of the Court shall not make the question moot or otherwise affect the Defendant's appeal."

On appeal, the District of Columbia Court of Appeals deleted the back rent requirement and affixed the condition as so modified to its grant of the petition to proceed in forma pauperis and to its grant of a stay of the order requiring such prepayment. Thus petitioners in this case are in the position of having been ordered to prepay their rent into the registry of the court and will be granted a stay of the order or allowed to appeal in forma pauperis from the order only by complying with it.

These separate sets of facts present for our consideration the question whether and under what circumstances the Landlord and Tenant Branch of the Court of General Sessions may issue orders of the type designed to protect landlords during the period of litigation. We conclude that, although the court may, in the exercise of its equitable jurisdiction, order that future rent be paid into the registry of the court as it becomes due during the pendency of the litigation, such prepayment is not favored and should be ordered only in limited circumstances, only on motion of the landlord, and only after notice and opportunity for a hearing on such a motion.

Certainly such a protective order represents a noticeable break with the ordinary processes of civil litigation, in which, as a general rule, the plaintiff has no advance assurance of the solvency of the defendant.10

Moreover, imposing on litigants who are eligible to proceed in forma pauperis the requirement that a defense may be maintained only upon payment of a given sum of money — whether this sum is characterized as a rental prepayment or an appeal bond — seems incongruous. Recent decisions of this court, which have enhanced the opportunities for indigents to participate meaningfully in the judicial process, highlight this incongruity. In Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891 (1970), we held that an indigent must be furnished a free transcript in civil cases raising a substantial question the resolution of which requires a transcript. That decision, grounded in the concept of equal protection, traced the evolution in criminal cases of the constitutional requirement that the state act affirmatively to equalize the conditions of the adversary system for the poor; we discerned a pattern of extending that process of equalization to matters arising in civil litigation: "[T]he constitutional mandate that there be no invidious discrimination between indigent and rich litigants is being recognized in civil cases as well." 137 U.S.App.D.C. at 413, 424 F.2d at 901.

In Harris v. Harris, 137 U.S.App.D.C. 318, 424 F.2d 806 (1970), we reversed the trial court's determination that Mrs. Harris was not sufficiently poor to prosecute in forma pauperis her action for absolute divorce on the ground of voluntary separation. In so doing, we explicitly adhered to the Supreme Court decision in Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948), construing the federal in forma pauperis statute11:

"* * * We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty `pay or give security for the costs . . . and still be able to provide' himself and dependents `with the necessities of life.' * * *"

More importantly, we recognized that "[t]he obvious intent of the indigency statute is to make available to the indigent, in common with his fellow citizen, the full range of civil remedies contrived by court or legislature * * *." Harris v. Harris, supra, 137 U.S.App.D.C. at 322-323, 424 F.2d at 810-811.

McKelton v. Bruno, 138 U.S.App.D.C. ___, 428 F.2d 718 (1970), similarly involved the right to proceed in forma pauperis. We endorsed an approach even more flexible than that of Harris v. Harris, warning:

"Finally, in assessing a litigant's ability to bear the costs of a lawsuit, the courts must pay some attention to the nature of the particular litigation. In many General Sessions cases there is not a large amount of money at stake. This is especially so in landlord-tenant actions, where the issue being litigated, the tenant's right to remain in his home, will often be of great personal, but of little monetary, value. Although he has a valid defense to the landlord's action, a tenant who is barely able to make ends meet, and for whom a victory would not bring a large monetary judgment, might well decide not to defend or appeal if he were forced to pay all court costs. All courts must be careful lest the financial burdens of litigation preclude the poor from litigating meritorious issues."

McKelton v. Bruno, supra, 138 U.S.App. D.C. at ___, 428 F.2d at 720. (Footnote omitted.)

The thrust of these cases has been to protect, under a variety of circumstances, the extent to which an indigent may have access to and participate in the judicial system. The requirement that an indigent tenant meet current rental payments in order to maintain his defense, whether or not such a requirement is explicitly labeled as a condition on the right to proceed in forma pauperis, has the effect of restricting access to and participation in the judicial system. We have good reason for concern when a meritorious defense cannot be litigated because a monetary barrier has been erected; not only does the individual defendant lose, but the purposes of the adversary system as a whole are frustrated.

In the context of a landlord's summary suit for possession, the prepayment requirement seems peculiarly inappropriate. Although a default in rent confers on the landlord a legally sufficient reason for instituting a suit for possession, such a suit will not and cannot legally eventuate in a judgment for rent. We have previously viewed the struggle between tenants and landlords as involving "a variety of closely balanced legal and tactical approaches"12 and have been wary of tipping that balance in favor of the landlord by authorizing a rent collection procedure outside the scope of the "panoply of legal remedies" provided him by the District of Columbia Code.13 We note also that, in the normal operation of the Landlord and Tenant Branch of the Court of General Sessions, the landlord demonstrates little need for a protective order. The vast majority of suits for possession instituted in that court result in default judgments for the landlords; in thousands of others, the tenant simply confesses judgment.14

Thus all these factors — that such a prepayment requirement is extraordinary in the course of civil litigation, that it has a tendency indirectly to constrict the tenant's right to proceed in forma pauperis, a right which equal protection considerations have recently led us to defend, that it carries with it, especially in the context of landlord-tenant litigation, a substantial risk of precluding litigation of meritorious defenses, that it also carries a substantial risk of upsetting the precarious balance of tactics in landlord-tenant litigation — lead us to examine with great care these factors underlying imposition of the prepayment requirement.

Our examination discloses, however, that there can be equally compelling considerations favoring imposition of such a requirement. The action for possession has traditionally been characterized as a summary proceeding,15 the landlord foregoing the past due rent in order to recover possession and effect a substitution of tenants. Recent practice has, however, altered the summary nature of such actions: a tenant may, upon timely request and a statement of facts underlying his defense, proceed to a jury trial16 with the inevitable delay in the ultimate disposition of the case17; a tenant may interpose the defense that no rent was owed either because the landlord breached his contractual obligations to the tenant, or because the lease was illegal and void ab initio.18 The tenant, of course, remains in possession during the pendency of a suit for possession.

In short, the landlord has lost the advantage of the summary proceeding and is instead exposed to a prolonged period of litigation without rental income. And, realistically, the likelihood of this occurring cannot be ignored when the tenant has been allowed to proceed in forma pauperis.19

We have little doubt that the Landlord and Tenant Branch of the Court of General Sessions may fashion an equitable remedy to avoid placing one party at a severe disadvantage during the period of litigation.20 Moreover, we foresee that, normally, the burden of such a prepayment order on the tenant will be neither heavy nor unexpected: to require that the tenant meet current rental payments during the litigation period is to require only that he fulfill an obligation which he voluntarily assumed at an earlier date when he entered into the lease. As long as the tenant remains in possession and no finding of a substantial housing code violation has been made, we are unwilling to absolve the tenant completely of his obligation under the rental contract.

Thus, in recognition of the emerging non-summary nature of the suit for possession, the concomitant severe disadvantage in which the landlord has been placed during such litigation, and the potential for dilatory tactics which judicial innovation in this area has bred, we conclude that the prepayment of rent requirement as a method of protecting the landlord may be employed in limited fashion. Indeed, we have already endorsed prepayment of rent pending disposition of landlord-tenant litigation involving the breach of warranty defense.21

However, not all litigation in which the tenant requests a jury or asserts a defense based on violation of the Housing Regulations will be equally appropriate for imposition of the protective order, and it is not our intent to promulgate so inflexible a rule. Indeed, we promulgate no rule at all, believing that the preferable course is to leave the decision on a case-by-case basis to the discretion of the trial judge. We advance the following to guide that decision, although not intending it as an exhaustive discussion.

The primary distinction to be made is between the preliminary and appellate stages of the litigation. Certainly if the landlord has been accorded a summary judgment, as in No. 24,147, or other judgment on the merits, the case for requiring prepayment of rent is strengthened.22 Of course, if the appeals court is of the opinion that the grant of summary or other judgment is erroneous on its face, it may dissolve the prepayment order or its equivalent on a motion for summary reversal or stay or other seasonable motion.23 And, similarly, if the tenant prevails at the trial level, any prepayment order will be discontinued.

The crux of the issue, however, is under what circumstances prepayment of rent may be imposed prior to a decision on the merits, and it is in this situation that the trial court will be faced with closely balanced equities.

We favor the approach of the court in these cases in granting a protective order only when the tenant has either asked for a jury trial or asserted a defense based on violations of the housing code, and only upon motion of the landlord and after notice24 and opportunity for oral argument by both parties. We feel the protective purpose of the rent payment requirement ordinarily will be well served simply by requiring only future payments falling due after the date the order is issued to be paid into the court registry. Any inclusion of back rent alleged to be due would depart from this protective purpose, since the landlord cannot recover back rent in a suit for possession, and would be in the nature of a penalty on the tenant. In light of our previous discussion, the protective order will be adjudged independently of the right to a jury trial and the right to proceed in forma pauperis: it may issue only when the landlord has demonstrated an obvious need for such protection.

In making a determination of need, the trial court may properly consider the amount of rent alleged to be due, the number of months the landlord has not received even a partial rental payment, the reasonableness of the rent for the premises, the amount of the landlord's monthly obligations for the premises, whether the tenant has been allowed to proceed in forma pauperis, and whether the landlord faces a substantial threat of foreclosure.

Even if the landlord has adequately demonstrated his need for a protective order, the trial judge must compare that need with the apparent merits of the defense based on housing code violations. Relevant considerations would be whether the housing code violations alleged are de minimis or substantial, whether the landlord has been notified of the existence of the defects and, if so, his response to that notice, and the date, if known, of the last repair or renovation relating to the alleged defect.

We express the view that, in the ordinary course of events, if prepayment of rent is required, the tenant will be called upon to pay into the court registry each month the amount which he originally contracted to pay as rent. However, there are circumstances likely to arise which, in our judgment, require that the trial court consider imposition of a lesser amount. Certainly a lesser amount would be desirable when the tenant makes a very strong showing that the condition of the dwelling is in violation of Housing Regulations norms. For example, he may adduce in support of his defense a finding of violation of an order to repair which the District of Columbia issued to the landlord and which the landlord has not acted upon within a reasonable time.25 Similarly, he may demonstrate that some portion of his potential payment of rent was instead expended on repairs to the premises.26 We are concerned also that a change in the tenant's financial condition may render the original burden so heavy as to preclude litigation of meritorious defenses. Again, we suggest that in such a case the court investigate the possibility of providing the landlord the protection of reasonable interim rent short of the agreed upon rent.27 For instance, with mortgaged property the court may impose a payment requirement less than the agreed upon rent but equivalent in amount to the cost of the premises to the landlord of principal, interest, taxes, and whatever proportion of the utilities payments the landlord has assumed, or make every effort to find some mutually tolerable amount.

If such prepayment of rent is required, the question arises as to the disbursement of the fund after the conclusion of the litigation. It is proper practice for the trial court to specifically find the amount of rent in arrears, even when the suit is one for possession and not one for back rent.28 One possible finding, of course, is that the entire amount cited by the landlord is in arrears because no housing code violations or only de minimis violations existed during the period at issue. Even in this event, we would be unwilling to have the prepayment fund applied directly against the unpaid rent; we have noted that a suit for possession cannot, by its very nature, eventuate in a judgment for back rent, and we hesitate, at least in the absence of personal service, to so commingle the landlord's remedies as to confer an undue benefit.

However, if the landlord is exonerated of all substantial housing code violations, we would allow the fund to be paid to the landlord as rental for the litigation period, indulging the assumption that, absent proof from the tenant, the condition of the premises during the period at issue continued unchanged throughout the litigation period and that no substantial housing defects have come into existence. Conversely, if the finder of fact determines that the housing code violations have nullified the obligation of the tenant to pay any rent for the period at issue, the tenant may recover the escrow fund on the assumption that, absent convincing proof from the landlord, housing code violations sufficient to nullify the obligation to pay rent have continued. If the trial results in a determination that a portion of the rent is owing the landlord, that same proportion will be applied in dividing the escrowed funds between the landlord and the tenant. If either party seeks to show that the condition of the premises changed during the litigation period, the procedures set out in Javins v. First National Realty Corp., 138 U.S.App.D.C. ___, ___ n. 67, 428 F.2d 1071, 1083 n. 67, (1970) must be followed:

"* * * To insure fair apportionment, however, we think either party should be permitted to amend its complaint or answer at any time before trial, to allege a change in the condition of the apartment. In this event, the finder of fact should make a separate finding as to the condition of the apartment at the time at which the amendment was filed. This new finding will have no effect upon the original action; it will only affect the distribution of the escrowed rent paid after the filing of the amendment."

Finally, if the tenant abandons the premises before the case goes to trial,29 the landlord will have obtained possession — the relief he sought in court — without a judicial resolution of (1) the condition of the apartment and (2) the amount of rent actually due. In such a case, any money paid into court by the tenant should be returned to the tenant unless the landlord promptly goes to court to seek a money judgment for rent actually due during the period rent was being paid into court.

These cases are remanded to the District of Columbia Court of Appeals for reconsideration in the light of this opinion.

So ordered.