The definition works on the building, not the unit
§42-3131.05 defines a vacant building as real property improved by a building that is not lawfully occupied on a regular or habitual basis by the owner, a tenant, or another person with the owner's permission. The object of the sentence is the building. One lawful resident living there regularly makes the building occupied, and the statute has no category for mostly vacant, no percentage test, and no count of empty units. The same section defines occupied for a dwelling unit as the use of one's residence on a regular or habitual basis, and says in so many words that storage, occasional visits, social gatherings or maintenance alone do not count. So the test for the one unit that matters is whether a person actually lives in it, and the test for the building is whether at least one such unit exists.
Two limits. Condominium units are separately assessed lots, so a condo building is really a stack of separate properties and an empty unit in a full building can be designated on its own; the condo article covers that case. And the word is lawfully. A person who broke in does not count, which the squatter article explains.
The rowhouse with a basement tenant
This is the most common partly occupied building in the District and the one owners mishandle most often. The owner is renovating the upper floors, the English basement has a tenant on a lease, and a permit is taped in the front window. The building is occupied. It needs no exemption, uses none of the 5 in 12 cap, and owes Class 1. The mistake is filing for the construction exemption out of caution. Doing so tells DOB the owner agrees the building is vacant, spends exemption years the property may need later, and puts the building on the register for the life of the project. If a notice arrives because an inspector saw scaffolding and papered windows, the response is occupied, with the lease, the tenant's utility bill and a short statement from the tenant attached. The occupancy evidence article ranks what carries weight.
The mixed use building with an empty storefront
Apartments above, a retail space below that has been dark since the last tenant left. The building is lawfully occupied because people live upstairs, and the dark storefront does not change that. What the storefront does change is the sidewalk view. Papered glass, a stack of mail behind the door and a faded for lease sign are three of the eight factors at eye level, and an inspector who never looks up will write the building as vacant. Expect the notice, answer it with the residential leases, and keep the retail glass clean and the mail collected while the space is marketed.
The reverse case: an open shop under empty apartments
Here the commercial unit rule matters. §42-3131.05 defines occupied for a commercial unit differently from a dwelling: use consistent with the zoning regulations, a current valid certificate of occupancy, and either paid utility receipts for the period, executed leases or sales tax returns, or other evidence the Mayor requires by rule. A shop that is open, zoned for its use and holding a certificate of occupancy makes the building occupied even if every apartment upstairs is empty. A shop operating without a certificate of occupancy fails the definition, and if the apartments are empty too the building has no lawful occupant at all. Owners who lease a ground floor to a tenant who never pulled a certificate of occupancy discover this when the designation notice arrives for a building they thought was full.
The unlicensed tenant question
Owners also ask whether a residential tenant counts if the owner never obtained a basic business license for the rental. The definition names a tenant or a person with the owner's permission and the factors in §42-3131.05b ask whether people live in the building; neither says an unlicensed tenancy is vacancy. Treat the license as a separate problem on a separate track and fix it, because it blocks the for rent exemption the day the unit turns over, as the license article explains. Do not concede a designation on a building with a resident in it because the paperwork is behind.
What to send when the notice arrives anyway
- A unit list for the building: each unit, whether it is occupied, the resident's name and lease dates, and the move in date.
- Utility evidence for the occupied units. A separately metered account showing consumption is best; a master metered building needs the usage history plus the leases.
- Dated photographs of the occupied units furnished and in use, plus the mailbox labels.
- For a commercial unit, the certificate of occupancy and the lease or sales tax returns the definition asks for.
- A one page letter stating that the building is lawfully occupied on a regular basis under §42-3131.05 and asking that the designation be withdrawn, sent inside the 15 day window the timeline article describes.
Planning a renovation around the last resident
The cheapest vacant building strategy in the District is to never have one. An owner who can keep one unit lawfully occupied through a project keeps the building at Class 1, keeps the cap untouched and stays off the register, which also keeps the $350 initial and $500 renewal fees in the owner's pocket. The trade is a tenant living through construction, which has its own rules outside this article. Where the last resident must leave, the construction exemption should be granted before the unit empties, not after, so the halves line up. The turnover article covers the gap between tenants in a building that does empty out.
If a partly occupied building of yours has been billed at $5.00 per $100 under §47-813, send us the address and the unit list. We read the DOB record and the OTR account at no charge and tell you which halves can be corrected. Correction work is a flat $1,500 per tax period corrected, paid up front, and refunded in full for any period OTR does not correct.