ON PETITION FOR REHEARING
In Part II of our original opinion, we affirmed dismissal of the landlord’s complaint for possession and affirmed summary judgment for the tenant. We held the trial court did not err in finding that the landlord, by accepting rent for December 1983 without a reservation of rights, “had waived the notice to quit and the alleged breach (overcrowding) pertaining to the rental period expiring November 30.” Habib v. Thurston, 517 A.2d 1, 7 (D.C. Oct. 11, 1985). In Part III, we affirmed the court’s award of attorney’s fees and expenses to the tenant in connection with her motion to compel answers to interrogatories.
In Part IV of our opinion, however, we held that, although the tenant had prevailed, the trial court erred as a matter of law in releasing funds to the tenant which she had paid into the court registry under a protective order, in the amount of the monthly rent, pending the outcome of the landlord’s action. We reversed and remanded “for entry of a judgment in favor of the landlord in the amount of the funds the tenant paid into the registry.” At 14 (footnote omitted).
The tenant seeks rehearing of our Part IV ruling. She contends we erroneously deprived her of the right to a McNeal1 *15hearing on the disbursement of the funds in the registry. She also asserts a constitutional right to a jury at the McNeal hearing, an issue we did not address given our disposition in Part IV. At 14 n. 17. We grant rehearing and rule for the tenant on both issues.
I.
In his complaint, the landlord had alleged a right to possession based both on a notice to quit and on nonpayment of rent. The day before the hearing, however, the parties executed the following praecipe:
[B]y consent of the parties, plaintiff dismisses his claim for possession based upon nonpayment of rent. Defendant dismisses without prejudice her counterclaims. Plaintiffs suit for possession based upon alleged overcrowding and defenses thereto survive this praecipe.
The parties’ clear intention, therefore, was to limit the proceeding to a possessory action based on a notice to quit (commonly called a “notice case”), and thus to limit the tenant to the corresponding defenses.
As a consequence, all the tenant’s defenses and counterclaims premised on proof of housing code violations — commonly called Brown2 and Javins 3 defenses— dropped out pf the case. As we said over a decade ago, “a defense of housing code violations is irrelevant to a possessory action based upon a valid 30-day notice to quit (unless raised in the context of a claim of retaliatory eviction).” McNeal v. Habib, 346 A.2d 508, 514 (D.C.1975); accord Brown v. Young, 364 A.2d 1171, 1173 (D.C. 1976). The retaliatory eviction exception is irrelevant here. Because that defense is based only on a tenant’s complaints about code violations — proof of code violations themselves is not required, at 9 a retaliatory eviction cannot serve as the basis for a rent abatement.
We concluded, therefore, that the tenant “had no pending claim or defense which would have entitled her to an abatement of the rent.” At 12. She had preserved “no claim tending to show that the landlord was entitled to less than the amount paid into the registry. Accordingly, ‘[wjhere, as here, ... no entitlement to an offset is even alleged, the court may properly release the funds in the registry to the landlord without an evidentiary hearing.’ City Wide Learning Center, Inc., 488 A.2d at 1314 (citation omitted)” (footnote omitted). At 13-14.
We added that, because the tenant had dismissed, without prejudice, her counterclaim based on housing code violations, she was “free to pursue it in a separate judicial proceeding.” At 14 (citations omitted).
II.
On petition for rehearing, the tenant faults our analysis in several respects. First, she claims she “had not withdrawn her defenses relating to the condition of the premises but, rather, had withdrawn only her counterclaim based upon housing code violations.” Specifically, she points to her Brown defense, her recoupment defense based on Javins, and her retaliatory eviction defense. Apparently, she believes these defenses survived the praecipe for purposes of the protective order, if not the notice case. We disagree.
As indicated earlier, both the Brown defense 4 and the recoupment defense based *16on Javins5 addressed only the landlord’s claim for nonpayment of rent. Both defenses lapsed with the landlord’s voluntary dismissal of that claim before the trial court heard the parties’ cross-motions for summary judgment on the landlord’s notice case. Moreover, as previously explained, the tenant’s retaliatory eviction defense, while applicable to a notice to quit, provides no basis for a rent abatement.
In any event, because all these defenses were directed only at the period ending with the return date,6 they were not legally relevant to the tenant’s payment of funds into the registry in lieu of rent for the months thereafter or to the eventual disbursement of those funds.7
In sum, if the tenant is entitled to a McNeal hearing at which she can assert Javins defenses, that right must exist independently of her answer to the possessory action.
III.
The tenant does not really dispute the foregoing analysis. After asserting that she had withdrawn only her counterclaim, not her code violation defenses, supra Part II., she shifts her position by acknowledging in the petition for rehearing that Javins defenses are not permitted in a “pure notice case,” which this proceeding had become. See Super.Ct. L & T R. 5(b).8 Implicitly, therefore, she concedes that after the praecipe dismissing the nonpayment claim had been filed, all her allegations about code violations affecting the rent level had, in effect, been stricken.
We thus have strictly a notice case in which the court entered a protective order in the amount of the monthly rent under the lease.9 The tenant prevailed. The question, then, is: whether a tenant whose pleadings do not — and by court rule cannot — invoke code violations as a defense or counterclaim in a notice case is entitled, nonetheless, to a McNeal hearing to contest, on the basis of alleged code violations, the landlord’s right to the sums in the registry representing the rent due under the lease for the period the case was in court.
In Part IV of our original opinion we answered “no”; the landlord is entitled to *17that money — to the contracted rent — as a matter of law. The tenant, on rehearing, says we were wrong. She argues that Part IV in effect requires a tenant, in derogation of Super.Ct. L & T R. 5(b), supra note 8, formally to plead Javins defenses to a complaint based on a notice to quit, in order to preserve the right to a post-trial evidentiary hearing under McNeal. We understand the tenant to mean, more specifically, that Part IV has two implications: either we have (1) legitimated in a notice case — and required — a formally pleaded Javins defense (presumably by an amended answer) directed at the litigation period, in order to receive a McNeal hearing at the end of the proceeding; or we have (2) held, in effect, that Javins defenses are never available to challenge disbursement of registry funds to the landlord in a notice case, and that if a tenant wishes to assure her payments into the registry remain undis-persed to the landlord pending the tenant’s assertion of code violations as an offset, the tenant must file a separate rent abatement claim in the Small Claims Branch or in the Civil Division with the hope of arranging an extension of the protective order until both claims are resolved. We acknowledge that our opinion is susceptible of either interpretation.
The tenant suggests that neither alternative is valid. The first, she says, violates Super.Ct. L & T R. 5(b), since a Javins defense may not be formally pleaded in a notice case tried in the Landlord and Tenant Branch. The second alternative, she adds, is too unwieldly, if not altogether unworkable, insofar as it would require the tenant not only to file a separate claim in another branch or division of the court but also to trust that the Landlord and Tenant Branch would continue the protective order to preserve her rights.
The tenant argues that the proper approach, instead, is to recognize (1) that issuance of a protective order reflects “ ‘a separate and distinct equitable proceeding, not part of the underlying possessory action,’ ” Temple v. Thomas D. Walsh, Inc., 485 A.2d 192, 194 (D.C.1984) (quoting Smith v. Interstate General Corp., 462 A.2d 1133, 1134 (D.C.1983)); (2) that this separate proceeding looks prospectively, addressing rights during the litigation period, in contrast with the retrospective analysis applicable to the possessory action itself; (3) that although, under Landlord and Tenant Branch rules, an answer alleging code violations is not permitted in a notice case, those rules do not preclude an oral10 Javins defense to the landlord’s request for disbursement of the funds in the registry attributable to this separate proceeding; and (4) that McNeal itself recognizes the consistency, as well as the constitutional necessity, of such a post-trial hearing on code violations during the litigation period of a notice case, even though a Javins defense is irrelevant to the possessory action itself.
We believe the tenant’s critique, on rehearing, is persuasive; the analysis in Part IV of our original opinion was wrong. In McNeal — exclusively a notice case — this court noted, as we have earlier in this opinion, that the tenant’s code violation defenses were irrelevant because the landlord had not alleged nonpayment of rent. The court added, however, that once a tenant demands a trial on the return date, “future payments of rent (or perhaps more accurately payments for the continued use or occupancy of the premises, since the landlord seeks to remove the tenant) become *18involved.” McNeal, 346 A.2d at 514. Accordingly, while code violations “were irrelevant to the 30-day notice to quit, they may well have significance as to the post-return date payment for the tenant’s continued use and occupancy of the premises pending the conclusion of the proceeding.” Id. Thus, a post-trial, evidentiary hearing on disbursement of funds in the registry under the protective order is required as a matter of due process. Id.
McNeal was a case in which the tenant mooted the possessory action by vacating the premises shortly before trial. Thus, she had remained for some time as a holdover tenant, and the court had a responsibility to calculate the damages awardable to the landlord for the tenant’s continued use and occupancy of the premises. See id.; At 13 n. 16. Theoretically, this could be more or less than the rent due under the lease. McNeal, 346 A.2d at 514; At 13 n. 16. The issue of code violations, therefore, automatically became relevant to the court’s assessment of damages and thus to the parties’ respective rights to the funds in the registry.11
In the present case, however, the tenant prevailed — the lease remained in effect— and thus the payments into the registry, as it turned out, theoretically retained their status as “rent” rather than becoming merely a fund subject to a claim for unliq-uidated damages. See at 13 n. 16. The trial court, therefore, absent an extension of McNeal, would not necessarily have had to consider alleged code violations, since rent was a contracted amount, unlike the damages attributable to a holdover tenant.12 This formalistic difference, however, between the court’s award of unliquidated “damages” or contractual “rent,” depending on the outcome of the landlord’s action, should not determine whether a tenant has a right to assert code violations at a McNeal hearing in a notice case; there is no principled basis for granting the tenant a lesser right in a case where she prevails than in one where she loses.
One other aspect of the McNeal analysis requires comment. Both McNeal and a later notice case which applied its teaching, Goodwin v. Barnes, 456 A.2d 1246, 1247-48 (D.C.1983), placed significance on the tenant’s assertion of code violations in the answer to the possessory action. Because that assertion was irrelevant to the notice case itself, however — and indeed that portion of the answer would have been vulnerable to a motion to strike — it is clear that a tenant need not assert code violations in the answer to the possessory action to preserve the right to that defense at a McNeal hearing. We understand McNeal and Goodwin to mean merely that the tenant has to raise code violations in a way that timely notifies the landlord and the court that a Javins defense will be asserted at the post-trial evi-dentiary hearing on disbursement of registry funds. Since Super.Ct. L & T R. 5(a), supra note 10, does not require a written answer, we deem it sufficient for a tenant orally to notify the landlord and the court about code violations early enough, with sufficient specificity, to afford the landlord a reasonable time within which to prepare for the McNeal hearing. A better practice, of course, would be the timely filing of a written pleading directed at the protective order; we see no violation of Super.Ct. L & *19T R. 5(b) if that is done, since the pleading would not be part of the notice case. See supra note 10. (Moreover, written pleadings will be necessary if the McNeal hearing is to be certified to the Civil Assignment Office for a jury trial. Infra Part IV.D. (2)).
In many cases the tenant will give a Javins notice at the initial hearing on the landlord’s request for a protective order, since tenants commonly seek at that time to pay less than the monthly rent into the registry because of an alleged history of code violations continuing to the time of the complaint and summons. See supra note 12. In other cases, however, the tenant may fail to challenge the level of the protective order on that ground, perhaps because at the time the tenant is proceeding pro se or (in a rare case) because code violations are not discovered until later. Accordingly, in the event that this issue is not raised at the time a protective order is entered, we leave it to the sound discretion of the trial court to determine whether a tenant has given timely, specific notice of an intended Javins defense at the McNeal hearing.
In sum, we conclude that the tenant, upon timely written or oral notice of alleged code violations during the litigation period of a notice case, is entitled to a post-trial, evidentiary McNeal hearing on whether code violations during that period, but not before,13 justify an abatement under Javins of the rent (or portion thereof) paid into the court registry pending resolution of the landlord’s possessory action.14
IV.
We turn now to the tenant’s assertion of the right to a jury trial at a McNeal hearing. She argues that, when a landlord asserts the right to receive the funds paid into the court registry in lieu of rent, this assertion, in effect, is a claim for a money judgment — an action at law — wholly separate in nature and time from the possesso-ry action. Accordingly, she says, the tenant has a right to a jury.
The tenant further argues, however, that the Landlord and Tenant Branch has limited jurisdiction; most notably, it has no authority to conduct jury trials. Moreover, she says, because the proceeding for a protective order, culminating in a McNeal hearing, is typically based on an oral motion and response — there usually are no written pleadings, let alone service of process — the Landlord and Tenant Branch has no practical way, when it grants summary judgment, to certify the matter to the Civil Assignment Office for a jury trial. Accordingly, argues the tenant, the trial court’s only proper course, consistent with its limited jurisdiction and the tenant’s right to a jury, is to release the funds to the prevailing tenant without a McNeal *20hearing and thus to leave it to the landlord to file a separate claim for unpaid rent in the Small Claims Branch or in the Civil Division if the tenant does not promptly tender the rent due for the litigation period.15
A tenant is constitutionally entitled to a jury trial in defending a landlord’s action for possession. Pernell v. Southall Realty, 416 U.S. 363, 370, 383, 94 S.Ct. 1723, 1727, 1733, 40 L.Ed.2d 198 (1974). Thus, a tenant served with a complaint and summons in a summary proceeding for possession, whether based on a notice to quit or on nonpayment of rent, may file a jury demand, pay a fee (unless excused), and submit a verified answer setting forth her defenses. Super.Ct. L & T R. 6. The Landlord and Tenant Branch will certify the case to the Civil Assignment Office, which will then schedule it for a jury trial on an expedited basis. Id, Until the case is called for trial, however, the Landlord and Tenant Branch retains jurisdiction over all motions, see Super.Ct. L & T R. 1, such as those concerning the protective order or requesting summary judgment. Cf. Super.Ct. L & T R. 5(c) (plea of title; certified to Civil Division not Civil Assignment Office; thus, jurisdiction transferred).
Although a case certified to the Civil Assignment Office shall be “scheduled for trial on an expedited basis,” Super.Ct. L & T R. 1, 6, the courts of this jurisdiction have recognized that the inevitable delay between the return date and trial, leaving the tenant in possession, justified creation of an “equitable remedy” — the protective order — to avoid putting the landlord “at a severe disadvantage during the period of litigation.” Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 109, 430 F.2d 474, 482 (1970) (footnote omitted); accord Smith, 462 A.2d at 1134; Davis v. Rental Associates, Inc., 456 A.2d 820, 823 (D.C. 1983) (en banc) (plurality opinion). As we noted in our original opinion, moreover, this device also protects tenants, at least in nonpayment cases, from falling further in arrears and risking forfeiture of the lease. At 12. Such protective orders, of course, are now also commonly entered to cover the period between the summons and a bench trial when the tenant elects to keep a possessory action in the Landlord and Tenant Branch. E.g., Temple, 485 A.2d at 192; Goodwin, 456 A.2d at 1246.
It is helpful to note at this juncture how the trial courts have handled McNeal hearings when a jury has decided the possesso-ry action. When the tenant elects a jury trial in a nonpayment case, and the appropriate branch or division of the court does not grant summary judgment or a directed verdict, we understand that some judges permit the jury not only to decide the merits of the landlord’s complaint, including the tenant’s Javins defenses, but also to decide, under McNeal, how the money es-crowed under the protective order during the litigation period should be apportioned in view of the evidence, if any, of continuing code violations. Cf. District of Columbia v. Daniel, 111 Daily Wash.L.Rptr. 621, 625 (D.C.Super.Ct. Feb. 18, 1983) (constitutional right to jury trial on counterclaim for rent abatement from three years before suit through period of protective order to time of trial) (Salzman, J.); see also Bell, 139 U.S.App.D.C. at 112, 430 F.2d at 485; Javins, 138 U.S.App.D.C. at 381 n. 67, 428 F.2d at 1083 n. 67. (Conceptually, this approach also could be deemed tantamount to a tenant’s amendment of the pleadings to assert a Javins counterclaim for the entire period of the landlord’s complaint through the litigation period, theoretically eclipsing the need for a separate McNeal hearing.)
*21Other judges, however, heeding this court’s characterization of a protective order as an equitable remedy, apparently have resolved the McNeal issue themselves, even in a nonpayment case, once the jury has returned a verdict in the possesso-ry action.16
A bench trial of the possessory action presents a different problem. Judge Schwelb, confronted by a demand for a jury at a McNeal hearing after a bench trial of a nonpayment case in the Landlord and Tenant Branch, ruled that the Seventh Amendment did not entitle the tenant to a jury. Management Partnership, Inc. v. Garris, 109 Daily Wash.L.Rptr. 789, 793-94 (D.C.Super.Ct. Mar. 17, 1981). He reasoned that the McNeal hearing, as an interim equitable proceeding, was not an adjudication of the rent due for the litigation period, especially because the payments under the protective order in that case were less than the monthly rent. Id. at 794. Indeed, Judge Schwelb concluded that “a McNeal hearing does not bring about an adjudication” at all, since “[n]o judgment is sought or entered upon the records of the Superior Court reflecting its outcome.” Id. The McNeal hearing, therefore, is an “interim disposition,” he wrote, and thus the parties are free to bring separate actions to resolve the back rent issue de novo. Id. Implicit in that ruling, of course, was an assumption that a McNeal hearing has no legally preclusive effect.
We therefore note several unresolved questions that may have to be addressed to assure jurisprudentially consistent results in notice and nonpayment cases:
1. Does the Seventh Amendment guarantee the right to a jury trial at a McNeal hearing on a protective order?
2. If so, is there a relationship between a jury demand in the possessory action and a jury demand for the McNeal hearing? Does the answer differ for notice and nonpayment cases?
3. How would the right to a jury at a McNeal hearing be implemented if the pos-sessory action itself remains in the Landlord and Tenant Branch?
4. Is the tenant entitled to a jury trial at the McNeal hearing, on remand, in this case?
B.
In addressing the Seventh Amendment question, we begin with the nature of a protective order and its relation to the underlying possessory action. In Smith, we reversed the trial court’s judgment awarding damages for rent in arrears because the landlord’s complaint had sought only possession. We also reversed because the court had included in the same judgment, as additional damages, the amount the tenant had paid into the registry under a protective order:
The trial court also erred in awarding to appellee the $552 in the registry of the court, but its error lay only in making that award part of its final judgment. The distribution of the funds in the registry was the concluding stage of a separate and distinct equitable proceeding, not part of the underlying possessory action. That proceeding was begun by the entry of the protective order, an equitable remedy designed “to avoid placing one party at a severe disadvantage during the period of litigation.” Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 109, 430 F.2d 474, 482 (1970); accord, Davis v. Rental Associates, Inc., 456 A.2d 820, 823-824 (D.C.App.1983) (en banc) (plurality opinion). Disbursement of the money deposited pursuant to that protective order, with or without a hearing, merely completed the parallel but *22discrete equitable proceeding. See Management Partnership, Inc. v. Garris, 109 Daily Wash.L.Rptr. 789 (D.C.Super.Ct. March 17, 1981). The release of those funds should therefore have been effected by a separate order entered in the exercise of the court’s equity power, not as part of the judgment in the underlying legal action. Accordingly, we vacate that portion of the trial court’s judgment awarding to appellee the $552 in the registry of the court and remand this case for entry of a separate order disposing of that money.
462 A.2d at 1134 (footnote omitted).
We have stated more clearly in Smith than in any other case that the landlord’s application for a protective order commences a “discrete equitable proceeding” that “parallel[s]” but is “not part of the underlying possessory action.” Id. This is true whether the landlord seeks possession for nonpayment of rent or for noncompliance with a notice to quit.17
In calling this separate proceeding “equitable,” we have focused only on the nature of the protective order as a fair, interim device to protect the interests of both landlord and tenant pending the outcome of the possessory action. See Davis, 456 A.2d at 823-24; Bell, 139 U.S.App.D.C. at 109, 430 F.2d at 482. That characterization does not foreclose a closer look at whether the true nature of a landlord’s claim to the escrowed amount — the “concluding stage” of the proceeding, Smith, 462 A.2d at 1134—has become a money claim for damages entitling the tenant to a trial by jury. “The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.” Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970) (footnote and citation omitted). “ ‘The court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case — the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.’ ” Carithers v. District of Columbia, 326 A.2d 798, 800 (D.C.1974) (quoting People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 299, 231 P.2d 832, 843-44 (1951) (per curiam)); cf. Dameron v. Capitol House Associates Limited Partnership, 431 A.2d 580, 584 (D.C.1981) (dicta) (tenants not entitled to McNeal hearing on imposition of protective order, permitting monthly release of portion of deposited funds to landlord; such evidentiary hearing “[a]t this early stage in the proceedings,” effecting permanent disposition of property, “would preempt the controversy and might deny a party’s constitutional right to a trial by jury”).
The Seventh Amendment declares that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved_” U.S. Const. amend. VII. Unquestionably, a suit for unpaid rent, or for damages from the use or occupancy of realty by a holdover tenant, is an action at law for which the right to trial by jury must be preserved. Pernell, 416 U.S. at 370, 94 S.Ct. at 1727 (“ ‘where an action is ... for the recovery of a money judgment, the action is one at law’ ” entitling parties to jury) (quoting Whitehead v. Shattuck, 138 U.S. 146, 151, 11 S.Ct. 276, 277, 34 L.Ed. 873 (1891)). The fact that the protective order itself was generated by “a demand for equitable relief in aid of the legal action or during its pendency,” Scott v. Neely, 140 U.S. 106, 110, 11 S.Ct. 712, 714, 35 L.Ed. 358 (1891), therefore, cannot impair that right if a registry disbursement proceeding is truly *23best characterized as an action at law for unpaid rent or for damages from a holdover tenant. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).
By the time of a post-trial McNeal hearing, the court, without doubt, is ruling on a landlord’s supplementary, usually oral complaint for the rent due (or damages from a holdover tenant) during the litigation period, secured by the amount in the registry; and the tenant is defending, typically, with an oral defense of recoupment based on alleged housing code violations during that same period. Therefore, what began as a parallel, “equitable proceeding” effecting “no permanent disposition of property” pending resolution of the possessory action, Dameron, 431 A.2d at 584, has become a money claim — an action at law — for withheld rent (or unliquidated damages), answered by a Javins defense seeking an abatement. By this stage of the proceeding, the matter is perceived and treated, in effect, as a final accounting.18 Each party’s jury right, therefore, must be preserved.
The tenant has paid the money into the registry, while retaining a claim to all or part of it based on Javins. We find no legitimate basis for saying a judge, after final adjudication of the possessory action, can issue an “interim” order that all or part of this money shall be paid to the landlord, as whole or partial payment of back rent or damages, simply because either party can bring a second, wholly separate jury proceeding to undo this temporary disposition. Compare McNeal, 346 A.2d at 515 n. 15, with Management Partnership, Inc., 109 Daily Wash.L.Rptr. at 794. Indeed, the entry of an “interim” order for the payment of money to a landlord, requiring an altogether separate lawsuit to make it “final,” is an anomalous concept in the context of a supposedly final disposition of the escrowed funds. See Dameron, 431 A.2d at 584. If such an order were to be justified on the ground it was not an “adjudication,” that order might deprive the tenant of due process of law, for despite an evi-dentiary hearing manifestly intended to resolve the matter finally, see McNeal, 346 A.2d at 515 n. 15, the tenant would be forced to yield money to the landlord — regardless or the tenant’s own claim to it— without a final court order establishing the parties’ respective rights. On the other hand, if the disbursement order were properly characterized as an adjudication, it would have preclusive effect on both parties in a second proceeding, despite the right to a jury, Restatement (Second) of Judgments § 27 comment d, unless that later proceeding were a guaranteed appeal de novo to a jury on the back rent/damages issue. Capital Traction Co. v. Hof, 174 U.S. 1, 45, 19 S.Ct. 580, 597, 43 L.Ed. 873 (1899); Windholz v. Willis, 1 Kan.App.2d 683, 685, 573 P.2d 1100, 1102 (1977).
It often will be true, as in Management Partnership, Inc., that the amount of money in the registry is not necessarily the amount to which the landlord is ultimately entitled for rent/damages during the litigation period; the landlord may be entitled to more, or less. But a *24court in most cases cannot rationally make a final disbursement decision at a McNeal hearing (unless the parties agree a portion is uncontroverted) without initially determining that underlying issue, for which the right to a jury trial must be preserved. A disbursement order after the conclusion of a possessory action is not like a summary possession order, based on “some rent” in an unadjudicated amount being due. See Tutt v. Doby, 148 U.S.App.D.C. 171, 459 F.2d 1195 (1972). While the right to possession does not depend on an adjudication of exactly how much rent is overdue, the right to money under a final disbursement order presupposes resolution — indeed, an adjudication — of the parties’ respective allegations as to the amount of rent/damages, if any, due the landlord for the litigation period.19
Implicit in this analysis, therefore, is the obligation of the fact-finder at a McNeal hearing to determine the entire amount due, if any, for the litigation period and to enter a judgment accordingly. This is necessary to preserve the landlord’s rights in the event the funds in the registry are insufficient to cover the tenant’s obligation, as well as to preserve the tenant’s rights in the event funds paid to the landlord from the registry pending resolution of the pos-sessory action, supra note 19, exceed what the landlord is due. Otherwise, res judica-ta might bar a landlord’s or a tenant’s later claim for a deficiency.
In sum, we conclude that a tenant or a landlord is entitled to a jury trial, upon timely request, to determine the parties’ respective rights in the fund deposited by the tenant in the court registry pursuant to a protective order covering the period while a landlord’s action for possession is pending. That, however, does not end the mat-, ter.
C.
Next, we consider two questions: how the right to a jury at a McNeal hearing relates to the right to a jury in the posses-sory action itself, and whether the nature of that action — notice or nonpayment— makes any difference.
In most instances where a tenant will elect to assert a Javins defense as to disbursements from the registry, the code violations allegedly will have existed for some time before the landlord filed suit for possession. Rarely will the tenant’s concern about code violations be limited to the period after the return date. Accordingly, if this were a nonpayment case, a tenant who desired a jury trial on a Javins defense and/or counterclaim presumably would file a jury demand at the time of the answer so that the possessory action itself, not merely the disbursements under a protective order, would be certified to the Civil Assignment Office for trial. Except for the rare case in which code violations occur for the first time during the litigation period, we anticipate few cases in which a tenant in a nonpayment case would want a bench trial for the possessory action but a jury trial for the protective order disbursement proceeding. This is especially so since code violations during the period of alleged nonpayment, if proved, typically are reasserted for the litigation period and, purely as a practical matter, are likely to be proved more easily in light of the demonstrated violations earlier.
Obviously, code violations can occur, be corrected, and recur. We do not mean to *25suggest that there is a consistent pattern in how Javins defenses fare in the preliti-gation and litigation periods, respectively. We are simply suggesting that, in our view, tenants who assert Javins defenses and/or counterclaims in nonpayment cases typically will want to assert them before a jury in both the possessory action and in the related protective order disbursement proceeding, which in practice are often consolidated at trial before the jury.
In a notice case, however, code violations are not a defense; they are relevant only to the protective order. On the other hand, a tenant-defendant in a notice case has the right to a jury, Pernell, 416 U.S. at 370, 383, 94 S.Ct. at 1727, 1733, and can ask for certification to the Civil Assignment Office. But there is a practical problem here. Because the Landlord and Tenant Branch retains jurisdiction over a notice case until trial — even when a jury is demanded — the tenant-defendant who elects a jury cannot file a Javins defense or counterclaim in the pleadings to be certified, as the tenant can in a nonpayment case. Super.Ct.L & T R. 2, 5(b). Thus, under present practice, to achieve a jury trial on alleged code violations during a tenancy for which the landlord has served a notice to quit, the tenant must file a separate claim, with a jury demand, in the Small Claims Branch, Super. Ct.Sm. Cl. R. 6 (jury demand), or in the Civil Division, Super.CtCiv.R. 38 (jury demand), in lieu of a counterclaim in the certified notice case. Presumably, however, if the cases went to trial, the tenant could achieve a consolidation, upon motion,20 so that the two could be tried together before a jury in the Civil Division, as are the claim and counterclaim in a nonpayment case. The jury, then, as in a nonpayment case, could consider not only the tenant’s claim for a rent abatement during the period before the possessory action was filed but also her claim for abatement during the McNeal phase.
We surmise that in many if not most cases, a tenant who wants a jury for a McNeal hearing in a notice case will want a jury for the possessory action itself. Moreover, as we have noted, such consolidation is feasible. We anticipate the possibility, however, that a tenant may be satisfied with a bench trial for the possessory action based on a notice to quit while electing a jury trial for the McNeal phase. Conceivably, though perhaps less likely, a tenant in a nonpayment case may want a jury trial only for the McNeal hearing. In either case, we perceive no reason why these alternatives should not be available. Accordingly, although a tenant, in anticipation of a protective order, may file a jury demand for both the possessory action and an anticipated McNeal hearing when the tenant files her answer to the complaint for possession, see Super.Ct. L & T R. 6, we conclude that the tenant may treat the two proceedings separately and file a jury demand for the McNeal hearing alone.21
*26The Superior Court presumably will want to adopt rules governing the preparation and timing of pleadings, including the jury demand, when a tenant who accepts a bench trial for the possessory action elects a jury for the McNeal hearing. Such rules will also have to cover the situation when the Landlord and Tenant Branch grants either party’s motion to dismiss or for summary judgment, as well as a landlord’s motion to strike the tenant’s pleadings for failure to comply with the protective order. For the time being, however, we must outline the procedures to be followed.
D.
Before addressing the procedures to elect a jury for a McNeal hearing, we should resolve a threshold question that could affect the volume of jury proceedings.
(1)
We have rejected the analysis in our original opinion that required the trial court as a matter of law, given the pleadings in this case, to disburse the registry funds to the landlord. We should reconsider, however, whether Temple — which precludes automatic release of those funds to a prevailing tenant — nonetheless permits discretionary release to such a tenant without a McNeal hearing, thereby obviating the need for a jury trial in some cases.
The answer has to be no, for three reasons. First, on the assumption that a protective order in a notice case was appropriately entered, there is no basis for assuming that a tenant who has asserted code violations during the litigation period would tender, upon release, the full sum to the landlord; a controversy would immediately ensue. McNeal itself rejected the suggestion in Bell, 139 U.S.App.D.C. at 112, 430 F.2d at 485, that, when a notice case is mooted by the tenant’s vacation of the premises, the money in the registry should be returned to the tenant “unless the landlord promptly goes to court to seek a money judgment for rent actually due” during the litigation period (and the protective order is accordingly extended). McNeal reasoned that, because “[t]he parties and the money are before the court[,] it would be pointless to call for instituting a new proceeding as a means of concluding the existing one.” 346 A.2d at 515 n. 15. Although the equities in McNeal, where the tenant mooted the case, more clearly favored the landlord than the equities do here, where the landlord lost his claim for possession, the fact remains that the tenant in this case has announced a code violation defense for the litigation period. This makes it imperative, as in McNeal, that a known controversy over which the court already has jurisdiction should not be ignored by an act of disbursement which itself is likely to generate another law suit.22 It would no more be fair to permit release of the funds to the tenant than to the landlord without a final adjudication.
Second, the only other basis for disbursing the registry funds to the tenant, without a McNeal hearing, would be her assertion that the Landlord and Tenant Branch *27is not equipped to certify an informally pleaded protective order to the Civil Assignment Office for a jury trial. We have outlined above, however, that this can be done. Accordingly, there is no practical impediment that would force a release of funds to the tenant without an evidentiary hearing.
Finally, on the premise, see Temple, that rights to the accumulated funds should depend on the merits of the landlord’s claim for rent/damages during the litigation period, not on who prevailed in the possessory action, McNeal makes clear that due process requires an evidentiary hearing. Moreover, we have now held that the McNeal hearing must finally adjudicate the rent/damages issue as the predicate for disbursement. Accordingly, there is no principled basis for a discretionary award of the funds to either party until such a hearing and adjudication takes place.
While the foregoing analysis is applicable to most cases, it is not intended to foreclose the partial distribution of funds in the registry to either party in the event a portion is uncontested. Furthermore, there will be cases in which the protective order itself authorizes a partial disbursement of the funds to the landlord each month pending resolution of the possessory action. See supra note 19. During the period between conclusion of the possessory action and the decision at a McNeal hearing, the protective order will remain in effect. Thus, the tenant will continue to make payments and, if the order so provides, the landlord will continue to receive partial payouts — subject to the trial court’s sound discretion.
(2)
Given that the Landlord and Tenant Branch cannot order final disbursement of funds from the court registry without an evidentiary hearing when the tenant timely has asserted a Javins defense, and further given the right to a jury at that McNeal hearing, we face an inescapable conclusion. We hold that, if the tenant or the landlord makes a timely jury demand, the Constitution requires that the disbursement proceeding must either (1) be certified to the Civil Assignment Office for an expedited jury trial, see Super.Ct. L & T R. 1, 6, or (2) be tried initially in the Landlord and Tenant Branch, while preserving the tenant’s or landlord’s right to appeal the court’s ruling to the Civil Division for a jury trial de novo, Capital Traction, 174 U.S. at 45, 19 S.Ct. at 597, with the protective order still in effect pending Civil Division resolution. We leave it to the Superior Court to decide which alternative is preferable.
Until Superior Court rules provide otherwise, we conclude that when a McNeal hearing alone is to be certified to the Civil Assignment Office, a jury demand must be filed no later than the day of trial of the possessory action in the Landlord and Tenant Branch or, if there is a motion to dismiss or for summary judgment — or a motion to strike the pleadings for failure to comply with the protective order, see Davis, 456 A.2d at 827-29— no later than the date the party demanding a jury files the motion or opposition, as the case may be. The trial court may extend the time for filing for good cause shown. In all other respects the requirements of Super.Ct. L & T R. 6 shall be satisfied, including certification for trial on an expedited basis.
In addition, the parties must expeditiously prepare pleadings for the trial court to review and certify. Because the court already has jurisdiction of the parties, they may serve these pleadings on one another as if the action already has been commenced; the formality of a separate service of process to institute the proceeding will not be necessary. As a practical matter in a nonpayment case, the existing pleadings presumably can be amended with dispatch to cover the litigation period, since the landlord will have pleaded the rental agreement and in virtually all instances the tenant will have recited the alleged code violations in the answer. In a notice case, however, the pleadings will not contain allegations germane to the McNeal hearing (unless, as in this case, code violations were *28originally alleged in response to a nonpayment count). In either case, however, as a way of minimizing delay, the party demanding a jury shall file an amended or supplemental pleading with the jury demand, and a written response shall be due within five days (calculated pursuant to Superior Court rules). In this way, an appropriate package of pleadings will be ready for certification at the time of summary disposition or within a few days after trial.
E.
We turn, finally, to the question whether the tenant in this case has preserved her right to a jury at the McNeal hearing on remand.
After summary judgment in her favor, the tenant did not ask the trial court for a jury at a McNeal hearing. Instead, although she had filed a jury demand in the possessory action, she understandably relied on pre-Temple precedent in the trial court supporting her argument that, as the prevailing party, she was entitled automatically to the funds she had deposited into the court registry. Board of Trustees, Northminster Presbyterian Church v. Roy, 109 Daily Wash.L.Rptr. 2509 (D.C.Super.Ct. Nov. 16, 1981) (Salzman, J.).- Consistent with that approach, she has argued on appeal not that she wants a McNeal hearing with a jury if the case is remanded, but that the trial court properly released the registry funds to her, the prevailing party, as the only way to avoid an assertedly impractical certification of a McNeal hearing to the Civil Assignment Office for a jury trial.
We have concluded, of course, that such certification is both required and feasible. Moreover, the tenant’s argument on appeal implicitly contains, as a fallback position, the claim of right to a jury at a McNeal hearing on remand; she has presented a complete Seventh Amendment analysis in her briefs. Finally, the tenant cannot be faulted for failing to ask the trial court for a McNeal hearing with a jury. Given the Superior Court precedent on which she relied, in contrast with our decision in Temple, which was issued after she had prevailed, there was no reason to proffer the Seventh Amendment argument until she had to contend with Temple on appeal in a supplemental brief, following submission of her original brief.
We conclude, accordingly, that given the tenant’s timely jury demand, as well as our Temple decision after the trial court proceedings had concluded, she has done all that could be expected to preserve her right to a jury on remand for a McNeal hearing.
Accordingly, after rehearing Part IV of our original opinion, we reverse and remand for a McNeal hearing. The tenant shall have the right to a jury, in accordance with the procedures authorized by this opinion, on the rent due the landlord for the litigation period — and thus on the landlord’s and tenant’s respective claims to funds originally deposited by the tenant into the court’s registry.
So ordered.
. McNeal v. Habib, 346 A.2d 508 (D.C.1975).
. Brown v. Southall Realty Co., 237 A.2d 834, 836-37 (D.C.1968) (lease void as matter of law, and thus claim for rent arrearage fails, because landlord knew at inception of tenancy there were housing code violations).
. Javins v. First National Realty Corp., 138 U.S. App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970) (housing code violations arising during tenancy breach warranty of habitability and thus may serve as defense to possessory action for nonpayment of rent and provide basis for abatement of rent claimed due).
.Brown, supra note 2, which nullified rent ar-rearages under a void lease, is irrelevant as a defense to a notice to quit for alleged overcrowding of the premises under a lease the tenant seeks to affirm and enforce.
. The tenant directed her recoupment defense at "the total amount of rent found to be due and owing herein.” This defense therefore refers only to abatement of the December 1983 rent claimed due. Because it is a Javins defense to alleged nonpayment of rent, supra note 3, it is irrelevant to an action for possession based on a notice to quit for alleged overcrowding.
. According to the docket entries, the answer was filed on the return date and the protective order was entered immediately thereafter on the same day.
. There is no record evidence that the tenant, on the basis of code violations listed in her answer, sought to make payments into the registry in an amount less than the rent due under the lease.
As a matter of law, moreover, all payments under a protective order pertain only to months of the litigation period; even when a landlord claims nonpayment of rent, payments into the registry are not obtainable for, or allocable to, back rent. Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 110, 430 F.2d 474, 483 (1970).
. Super.Ct. L & T R. 5(b) provides:
Counterclaims. In actions in this Branch for recovery of possession of property in which the basis of recovery is nonpayment of rent or in which there is joined a claim for recovery of rent in arrears, the defendant may assert an equitable defense of recoupment or set-off or a counterclaim for a money judgment based on the payment of rent or on expenditures claimed as credits against rent or for equitable relief related to the premises. No other counterclaims, whether based on personal injury or otherwise, may be filed in this Branch. This exclusion shall be without prejudice to the prosecution of such claims in other Branches of the Court.
. In Cunningham v. Phoenix Management, Inc., No. 85-1037, appeal pending, the trial court entered a protective order in a landlord’s action for possession based solely on a notice to cure or quit. There was no allegation that the tenant was behind in her rent. Cunningham presents the question whether the court, in a strictly notice case, lawfully can order a tenant to make payments into the registry in lieu of rent while the case is pending, since allegedly there can be no showing of "obvious need” for a protective order when nonpayment of rent is not an issue. Bell, 139 U.S.App.D.C. at 111, 430 F.2d at 484; see id. at 106, 430 F.2d at 479.
. Super.Ct. L & T R. 5(a) provides:
In general In this Branch it shall not be necessary for the defendant to file any answer, plea, affidavit, or other defense in writing except as provided in Landlord and Tenant Rules 6 [jury demand] and 13(b) [summary judgment].
We see no reason why the tenant’s argument should preclude a timely written answer asserting a Javins defense in the separate, protective order proceeding, since the landlord’s claim for disbursement is essentially a claim against a fund representing withheld rent. Presumably, the tenant stresses that an oral answer will do because she did not file a written answer for this separate proceeding.
. "Also relevant would be any representations to the effect that the tenant has frustrated the landlord’s good faith efforts to correct housing code violations," as well as "the length of the period during which the tenant’s continued occupancy precluded any other productive use of the premises by the landlord.” McNeal, 346 A.2d at 514.
. The monthly payments into the registry were equal to the rental payments under the lease; indeed, the issue of code violations had not been raised at the time the protective order was entered. In a case where code violations serve as the basis for ordering payments into the registry in an amount less than the monthly rent, see Bell, 139 U.S.App.D.C. at 111, 430 F.2d at 484, that issue is necessarily in the case at the time of the disbursement proceeding, just as it is when the court confronts a holdover tenant.
. Any Javins claim for the period before the litigation commenced would have to be filed separately in the Small Claims Branch or in the Civil Division, since Super.Ct. L & T R. 5(b) precludes its assertion in a notice case. See McNeal, 346 A.2d at 514.
. In Part IV of our original opinion, we relied on Temple v. Thomas D. Walsh, Inc., 485 A.2d 192 (1984), which had rejected the argument that, when a tenant prevails in a notice case, the trial court is foreclosed from awarding to the landlord any of the funds the tenant had deposited in the registry under a protective order. In Temple, the trial court had held a McNeal hearing but ordered release of all the deposited funds to the landlord because the tenant had received the benefit of housing but offered no "evidence which would warrant a reduction in the amount due under her lease.” Id. at 194. We affirmed this exercise of discretion. In our original opinion in the present case, we implicitly extended Temple in two respects. We held that in a notice case, where Javins defenses are withdrawn or irrelevant, a tenant is not entitled to a McNeal hearing since "she had asserted no claim tending to show that the landlord is entitled to less than the amount paid into the registry." At 13 (footnote omitted). We also held that, "absent an issue of abatement," the court did not have discretion to order the money in the registry returned to the tenant. Id. at 14.
As elaborated in the text above, however, we were wrong in ruling that a tenant in a notice case is not entitled to a McNeal hearing at which evidence of code violations during the litigation period may be proffered. We conclude, on rehearing, that the tenant is so entitled if the tenant’s proffer is timely.
. To be consistent, the tenant would have to make the same argument if the landlord had prevailed. Properly interpreted, therefore, the tenant is arguing that, when summary judgment is granted in a notice case, a tenant who has made a timely jury demand for the McNeal hearing always must get back the funds she deposited into the registry, however the posses-sory action turns out. This argument suggests that a protective order would be useless to the landlord, if not altogether inappropriate, in a notice case.
. We are not aware that any trial judge, except for Daniel’s disposition of a Javins counterclaim at a jury trial in a nonpayment case, has held the tenant is constitutionally entitled to a jury for the McNeal disbursement proceeding. That is simply a common practice because the jury has had to resolve the Javins defense and/or counterclaim in the possessory action, the code violations are often continuing, and thus the jury is in a position to evaluate the evidence with respect to both the pre-litigation and litigation periods.
. In a nonpayment case, the landlord may seek possession without claiming arrearages, and, even when arrearages are sought, the money escrowed by the tenant during the litigation period does not, and legally cannot, include sums alleged due in the landlord’s complaint. Bell, 139 U.S.App.D.C. at 110, 430 F.2d at 483. Thus, even when nonpayment is alleged as the basis for a possessory action, the McNeal hearing addresses only the rent claimed due after the return date, during the litigation period. Similarly, funds deposited under a protective order in a notice case have no legal relationship whatsoever to the possessory action.
. We recognize that the matter is legally complex. The tenant’s payments into the registry— as in this case — may conform exactly to the monthly rent payable under the lease. In other instances, however, the payments may be less because the tenant has convinced the court, at the time the protective order was entered or thereafter, that there were code violations justifying smaller payments for the time being. Accordingly, in a case where the fund in the registry does not correspond to the rent due for the litigation period under the terms of the lease, there is a nice question whether a McNeal hearing on disbursement of that fund must resolve the ultimate question of the landlord’s right to a particular amount of rent for the litigation period (or, in the case of a holdover tenant, of the landlord’s right to damages for the tenant’s continued use and occupancy of the premises). See Management Partnership, Inc. v. Garris, 109 Daily Wash.L. Rptr. 789, 793-94 (D.C.Super.Ct. Mar. 17, 1981). The answer, as elaborated below, has to be "yes."
. This is especially clear from the fact that there may be cases where the court has permitted a partial release of funds from the registry to the landlord during the pendency of the protective order, based on estimates of the landlord’s need to meet mortgage and other expenses, see Bell, 139 U.S.App.D.C. at 111-12, 430 F.2d at 484-85, weighed against the tenant’s need for retention of an amount sufficient to secure her Javins defenses. See Dameron, 431 A.2d at 582. These payouts “effect [ ] no permanent disposition of property," id. at 582, and thus are subject to review at the McNeal hearing. There is a special responsibility at a McNeal hearing, therefore, to be sure that the final distribution is precisely in accord with the parties' respective rights and obligations for rent/damages over the entire litigation period, including any necessary judgment for a deficiency awardable to either party.
. Superior Court rules do not make clear what judge should rule on the motion to consolidate. Until cases certified to the Civil Assignment Office by the Landlord and Tenant Branch and the Small Claims Branch are actually called for a jury trial, those respective branches of the Civil Division retain jurisdiction. See Super.Ct. L & T R. 1; Super.Ct.Sm.Cl.R. 1. Thus, unless the rent abatement claim is filed in the Civil Division, no judge assigned to that division, as such, will yet have a clear responsibility, before trial, to rule on a motion to consolidate. The judges of the two branches, however, are technically sitting in the Civil Division; arguably, therefore, either a small claims judge or a landlord and tenant judge has divisional authority to rule on such a motion. Or, under the circumstances, perhaps the civil motions/calendar control judge is a logical choice. In any event, we are satisfied that the question of selecting the proper judge within the Civil Division to rule on a motion to consolidate under these circumstances can easily be resolved administratively and, eventually, be announced by court rule.
. If a landlord in a notice case wants to prevent a jury trial for the McNeal phase, the landlord can forego a protective order. If we focus on strictly notice cases, it is difficult to understand why there would be a need for a protective order in any event, since presumably nonpayment of rent is not an issue. Moreover, as we pointed out in Part II of our original opinion, a landlord who sends a notice to quit may reserve the right to continue to receive rent *26without waiving the notice. At 7. In that way, the landlord would be better off financially than he or she would be if the money were paid into court.
While this reasoning may be theoretically correct, the landlord may have a different approach. A landlord with a notice claim may wish to obtain a protective order, instead of continuing to receive rent directly, in anticipation that the tenant may default on the payments into the registry. If that were to happen, the landlord could move to strike the tenant’s pleadings in the notice case with the hope of prevailing without trial of the notice issue. See Davis v. Rental Associates, Inc., 456 A.2d 820 (D.C.1983) (en banc) (plurality opinion). The landlord's motion to strike could not be granted summarily, however; the trial court must carefully scrutinize the reasons for the tenant’s default and may under the circumstances, deny the motion. See Battle v. Nash, 470 A.2d 1252 (D.C.1983); Davis, 456 A.2d at 831, 832-34 (Ferren, J., concurring in result).
. If a tenant who prevails in a notice case has not timely asserted code violations with respect to the litigation period, we believe — as we said in our original opinion — that Temple mandates disbursement of the funds in the registry to the landlord.