Wisconsin Supreme Court Adopts Landlords' position on Eviction Record Retention

NOTE: The below blog post which was posted on June 18, 2024, is reproduced from the Rental Property Association of Wisconsin's blog and was written by Atty. Heiner Giese, attorney for the RPA.

Since the Journal Sentinel and the other local news agencies won't report on this, I thought it was important for people to know.

T

The Wisconsin Supreme Court today [06.18.24] issued it’s long-awaited ruling (Rule Petition 22-03) on how long eviction case records should remain available to public view via online access to court records.

The Court rejected the petition of Legal Action of Wisconsin for only a one-year retention and accepted the proposal of the Rental Property Association of Wisconsin and other landlords: 2 years retention if no money judgment entered and 10 years if a writ of restitution was granted.

The dissent by Justice Hagedorn (joined by CJ Ziegler and J. Rebecca Bradley) says a change to open records should have first been vetted by the Court's own CCAP committee and there should have been more consideration as to how restricting access to eviction filings is going to affect the business practices of landlords -- who are entitled to know the prior rental history of tenant applicants and will pass on the costs of more difficult screening to other tenants (J. Hagedorn does not say it, but an example of this is landlords requiring a double security deposit because they can't be sure if an applicant had prior evictions and is thus not a good risk).

The Order's effective date is delayed for one year to July 1, 2025 but the current law found in Wisconsin statute section 758.20 -- which requires no less than a 2 year retention for evictions where no money judgment was docketed and 10 years if a writ of restitution was issued -- was acknowledged by the Supreme Court and should continue to apply. Legal Action of Wisconsin had urged the court to overrule that statute and make its own rules but the court specifically declined to do so.

By Atty Heiner Giese

ATTENTION LANDLORDS: Wisconsin Court of Appeals case of Koble v. Marquardt Is Now Law

This is a long blog post, and I apologize in advance, but I sincerely hope that you take the time to read it all the way until the end as it is very important that Wisconsin landlords know what they will be facing. This may be one of the biggest, if not the biggest, issues facing landlords in the last 30 years that I have been a practicing attorney, representing many of you.

Koble Investments v. Marquardt (“Koble”) is a District III Wisconsin Court of Appeals case from Marathon County which has now been published and therefore is now the law in the State of Wisconsin. When a Court of Appeals case is published it becomes precedent for all courts that are lower than the Court of Appeals, which means all the state circuit courts in every county in Wisconsin.

The holding in Koble is that if a landlord has a void rental agreement (i.e., the rental agreement contains one of the “10 Deadly Sins” as set forth in Wis. Stat. § 704.44  the remedy for the rental agreement being void and unenforceable is the complete disgorgement of all rent previously paid by the tenant to the landlord. Stated another way, if a landlord has a provision in its rental agreement, which includes any rental documents as they are incorporated into the rental agreement, that violate any of the “10 Deadly Sins,” the landlord must return all rent that it received from the tenant during the tenant’s entire tenancy. Essentially, because of something that may not even have been intentional by the landlord, the tenant will get to live in the landlord’s rental property for free for the tenant’s entire tenancy, even if the tenant was not damaged because of the prohibited language in the rental agreement.

While the landlord in the Koble has petitioned the Supreme Court of Wisconsin to accept and hear this case, the Wisconsin Supreme Court only accepts a limited number of cases each year and is not obligated to take the Koble case.

Additionally, the landlord in Koble failed to raise the argument that under Wisconsin law if a landlord’s lease is determined to be void, it automatically defaults to a month-to-month tenancy per Wis. Stat. § 704.01(2), and thus still requires the tenant to pay rent. How did the landlord fail to raise such an obvious argument? I do not know the answer for certain, but my assumption is that the attorney that represented the landlord was unfortunately not familiar with Wisconsin Landlord-Tenant law.

In May of 2023, in an unpublished District III Wisconsin Court of Appeals case also out of Marathon County entitled Henchey and Blakely v. Wausau Landmark Corp. (“Henchey”) the landlord also failed to raise the argument that a void lease defaults to a month-to-month tenancy and that rent still must be paid. In Henchey, the Wisconsin Court of Appeals from District III also said the sole remedy for having an illegal provision in a lease was the return all rent paid by the tenant during the entire tenancy, thus allowing the tenant to live for free. In Henchey, the tenant was not even a current tenant of the landlord at the time of the lawsuit. The tenant had moved out of the rental property two (2) years earlier before choosing to sue the landlord for the return of its rent. Again, just like in Koble, the tenant was not damaged because of the prohibited provision included in the lease. In Henchey, the Court of Appeals analogized the inclusion of prohibited language in the lease to an auto repair shop failing to obtain prior authority from the customer to make the repair and failing to provide an estimate of the cost of the repair to the customer prior to commencing work on the customer’s car.

Additionally, the landlord in Koble also allegedly failed to sufficiently develop its argument against the remedy of returning all rent received during the entire tenancy back to the tenant. The landlord also failed to advise the court that such a holding would decimate a large part of the residential rental industry in Wisconsin.

Since the above arguments were either not raised or allegedly not sufficiently developed by the landlord in Koble, those arguments are essentially waived and cannot be raised by the landlord before the Wisconsin Supreme Court.

Thus, the burden falls on the various landlord groups throughout the state, such as the Rental Property Association of Wisconsin, Inc. (“RPA”) to take action and make these arguments to the Wisconsin Supreme Court by filing an amicus (“friends of the court”) brief requesting that the Wisconsin Supreme Court accept the Koble case. This is necessary so that the Supreme Court of Wisconsin can prevent an unjust outcome because the applicable law in Wisconsin was ignored.

The publication of Koble is detrimental to all Wisconsin landlords because tenants now have an even greater reason to argue that all rental leases that they have ever entered into with a landlord or property management company are void and contrary to Wis. Stat. § 704.44. Tenants have nothing to lose in making such an argument. If they prevail, they receive a windfall and have been able to live for free. And if they lose, their case is just dismissed and there is no penalty to the tenant.

In the Koble case, the landlord failed to include the required domestic violence notice provisions as required per Wis. Stat. § 704.14. Further, the lease also contained language that allowed the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property. The inclusion of such language coupled with the failure to include the domestic violence language is a clear violation of the 10th Deadly Sin (Wis. Stat. § 704.44(10)).

But the arguments that tenants have been making since Henchey in May of 2023, have not been as clear. In fact, some of the arguments being made stretch both the imagination and common sense. Arguments are being made that if a landlord’s lease states that a “tenant can be evicted if they engage in criminal activity on the premises” that it violates the 9th Deadly Sin (Wis. Stat. § 704.44(9)).

Wis. Stat. § 704.44(9) says that a lease will be void if it “Allows the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property if the tenant, or someone who lawfully resides with the tenant, is a victim, as defined in 950.02(4), of that crime.”

Where in the following language -- “tenant can be evicted if they engage in criminal activity on the premises” -- does is say that the landlord can evict a tenant if they are a victim of a crime? Nowhere. It does not state that anywhere and thus it is not a violation of the 9th Deadly Sin. But it is being argued that the above language violates the 9th Deadly Sin unless you also include the following phrase: “unless the tenant, or someone who lawfully resides with the tenant, is a victim, as defined in Wis. Stat. § 950.02(4), of that crime.”

So, with the publication of Koble, I anticipate that landlords will see even more tenants trying to attack their leases arguing that they are void. Wisconsin landlords must ensure they are using rental documents that do not violate any of the 10 Deadly Sins. If you are using the rental documents that I draft that are sold at Wisconsin Legal Blank (“WLB”), you must use the most current version of both the Residential Rental Agreement, Rules and Regulations, Nonstandard Rental Provisions, and the other rental forms that I draft. WLB provides you with a list of the most current rental documents. This is necessary to protect yourself. It doesn’t mean that tenants won’t still try to attack them. They will. They most definitely will. They will continue to attack them as long as there is the possibility for them to obtain that windfall and live for free.

The Koble case could completely wipe out small to mid-size landlords in Wisconsin. If many tenants living in a large rental complex come together to sue a larger landlord seeking reimbursement of all rent paid or if all tenants renting from a large landlord with multiple rental properties in the state, join in a class action lawsuit against that larger landlord seeking the return of all their rent, that landlord could go out of business as well.

If landlords are forced to file bankruptcy and/or give up their rentals, who is prepared to take over their roles? Is the government ready to step in and be a landlord? We need only look so far as the Housing Authority of the City of Milwaukee (“HACM”) to see that the government is not the answer. Who then?

A final note, if you happen to be on the wrong end of one of these lawsuits and the tenant is arguing that your rental documents are void and unenforceable and that you must return all of their rent payments and let them live for free, make sure that you contact the Rental Property Association of Wisconsin, Inc. (RPA) or your local landlord association. Let them know of your situation so they can help.

Additionally, if you have been sued, make sure that you retain an attorney that understands and is knowledgeable about Wisconsin landlord-tenant law as there are legitimate and valid arguments and defenses that can and should be raised in your defense. Don’t’ end up like the landlords in Henchey and Koble.

Thanks for reading until the end.

T

It Is Very Important That Landlords Ensure That They Are Using the Most Current Version of WLB's Landlord Tenant Rental Forms.

It is very important that landlords that are using the landlord-tenant law rental documents/forms that I draft, and which are sold through Wisconsin Legal Blank (WLB), ensure that they are using the most current forms.  To aid you in determining if you are using the most current version, WLB just published the document below on their website, so that you know have one place to go to determine if your rental documents are up to date. 

Please be assured that I don't revise any of the WLB landlord-tenant forms just for the hell of it.  If I revise a rental form, it is for an important reason.  In some situations the law has changed and that necessitates the revision. Other times, a Court may make an adverse ruling against a landlord based on some language in the form, and if that landlord brings this to my attention and I can confirm the ruling, that may be the reason for a revision. Sometimes, I simply have come up with a better way to explain something in the rental document or realized that I should address a new issue or topic that will make the rental document better.  But there is always an important reason that causes me to revise any of the WLB rental documents. So, if you notice that you are not using the most current version of a rental document, take the time to purchase the updated version and begin using it as soon as possible as allowed under Wisconsin Law, so that you are protected as well as possible.

Thanks

T

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Wisconsin Supreme Court Rules on CCAP Eviction Records

Breaking News from the Rental Property Association of Wisconsin's website and Blog:

Wisconsin Supreme Court rules on CCAP eviction records

04/16/2024 11:30 AM

The Wisconsin Supreme Court rejected Legal Action’s bid to make eviction judgments disappear in one year instead of the statutory 10-year retention period.

The industry and good renters owe a large thank you to Attorney Heiner Giese, Rick Van Der Leest of the Green Bay and Appleton Associations, and Chris Mokler of the Wisconsin Apartment Association for making this happen. Rick and Heiner received mention by the Court at the hearing today.

Heiner’s comments:

Follow the statute: if no money judgment is docketed, then the case goes off CCAP after two years; if a writ was issued then the record is searchable for 10 years. Our goal has always been to encourage nonpaying tenants to move voluntarily, so landlords can dismiss a case without the trauma (for both parties) of having the sheriff do a forced moveout.

Add comment

Comments

• 04/17/2024 10:57 AM| Mike Cottrell (Administrator)

  I want to personally thank our legislative team and housing coalition group for the outstanding effort they put into being the watchdog for the industry.
  
  Tim Ballering, Heiner Giese, Joe Murray, Mark Kvetkovskiy,
  Rick Van Der Leest, Gary Goyke, & Chris Mokler.
  
  Mike Cottrell
  RPA | President
  

Spring Landlord Boot Camp Will Be Held on Saturday, April 13th

Spring 2024 Landlord Boot Camp for Rental Property Association of Wisconsin (RPA)

• When:   April 13, 2024
• 8:30 AM - 6:00 PM
• Location - SONESTA HOTEL WEST (10499 W. Innovation Drive, Wauwatosa WI 53226)

Registration

• Non-Member (Early Bird) – $399.00  (Includes 1 Year General Membership to the Rental Property Assoc. of Wisconsin)
• RPA Member (Early Bird) – $249.00
• RPA Member Refresher (Early Bird) – $199.00Available to members who attended an RPA Landlord Boot Camp within the past 2 years

TO REGISTER CLICK HERE

TO REGISTER CLICK HERE        

TO REGISTER CLICK HERE

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TO REGISTER CLICK HERE

TO REGISTER CLICK HERE

Rental Property Association of Wisconsin, Inc. (Formerly AASEW) P.O. Box 4125 Milwaukee, WI 53204-7905 Phone: 414-276-7378

Updated Nonstandard Rental Provisions form Now Available at Wisconsin Legal Blank

Hi Everyone - I hope that you are all well on this rainy Friday afternoon.  I just wanted to alert those of you that use the Landlord-Tenant forms that I draft for Wisconsin Legal Blank, that I recently re-wrote the Nonstandard Rental Provisions (NSRP) form for clarity and legal conformity.  I recommend that you update your NSRP form accordingly to better protect yourself and your rental property.

Thanks

T

Matt Desmond, Author of "Evicted" Has Some Detractors, Including Myself.

I apologize for getting on my soapbox here, but most of you are either landlords or spend more than 40 hours a week representing landlords or working with them. If you don't fall into one of the above categories, you probably will not want to read this blog post.

I recommend that you read this recent article about Matt Desmond, the author of Evicted and now the author of Poverty. It is called "Princeton's Matthew Desmond Gets Everything Wrong About Poverty's Root Causes" authored by Aaron Brown. It points out that Desmond's analysis of statistics is poor, his conclusions are overly simple (for this complex world), and his engaging stories don't always support his conclusions.

I wish the article had also addressed the fact that out of all the landlords that Desmond interviewed for his book, Evicted, he chose to focus on one that wouldn't talk to him and another that failed miserably as a landlord, about which Desmond decided not to mention in his book.

Inner city landlord "Sharena" was one landlord that Desmond focused on in Evicted. What was never mentioned however is that Sharena lost all her inner-city rental properties to the city for failing to pay her real estate taxes PRIOR to Evicted being published. Why omit such an important fact if it came to light prior to your book being published? Probably because the failure of one of Desmond's two main landlords and her inner-city rental empire wouldn't support one of his hypotheses (not to mention a catchy slogan) that “The Hood is Good” (i.e., profitable) for landlords. If the “Hood was so Good” for landlords, why did Sharena end up losing all her rental properties? If the Hood was so Good for landlords, wouldn't Sharena be making so much money that she could pay her real estate taxes? Aaron Brown in the above-linked article addresses this issue and points out that it is not easy owning and managing rental properties in the inner-city and very few landlords are willing to do it for a myriad of reasons, and even fewer succeed. During my 28 years of representing landlords, I have had many a client think that they would strike it rich when they purchased properties in the inner city. Most of them failed and are no longer landlords. The "Hood is Good" is a catchy slogan but it is not accurate. It is very difficult owning and managing rentals in Milwaukee's inner-city.

The second landlord that Desmond chose to focus on in his book, an owner of a mobile home park on the South side, never even spoke to Desmond. Nor did Desmond speak to any of that landlord's employees. The fact that this owner would not speak to Desmond was downplayed in the book. Not being able to talk to this owner apparently made him a perfect landlord to focus on for Desmond. If the landlord won't speak to you then you don't have to worry about the landlord telling you facts or stories that might contradict your hypothesis (or conclusion?)

What about the other 10+ landlords that Desmond interviewed and who were willing to talk to him? Many of you know Tim Ballering who owns Affordable Rentals which owns and manages more than 700 units in the 53204 zip code. Tim is very involved in the Rental Property Association of Wisconsin (RPA) and is extremely involved in the industry. Tim knows more about Wisconsin's landlord-tenant law then I do. Tim has great ideas and sees the big picture and has practical real-world ideas on how to solve the problems that we are facing in the housing industry. He would have been a perfect subject for Desmond to focus on in Evicted. And most importantly, Tim's was willing to talk with Desmond. He was even interviewed by Desmond but was relegated to a footnote. Wouldn’t it have been more prudent (ethical?) to choose to focus on a landlord who would speak with you and provide you with information. My assumption is that Tim's, as well as the other willing landlords', stories, facts, and experiences didn't support Desmond's pre-ordained conclusion that the “Hood Is Good” and that landlords are bad. It’s much easier to talk about and profile a landlord that doesn’t talk and another that likes to brag about herself and her abilities and who failed miserably (but fail to mention that last part).

Please spend the time to read the article linked above.

The Next LANDLORD BOOT CAMP Seminar Will Be Held on Saturday, April 13, 2024.

My next Landlord Boot Camp for the Rental Property Association of Wisconsin, Inc. (formerly known as the AASEW) will be held on Saturday, April 13, 2024. This Boot Camp will be an in-person event.  There will not be a virtual option.  

There have been so many changes in how evictions and other Landlord-Tenant law matters are handled post COVID that I strongly recommend that you attend this Boot Camp to get caught up on all the changes, even if you have attended Boot Camp in the past.

• Attendees will receive a searchable 100 page + PDF Boot Camp manual, making it easier to search and reference items in the future.  You will also have an option to purchase for $50 a printed manual.
• As in prior Boot Camps, the live Q & A session will be part of this event.
• If you attend the Boot Camp lunch will be provided.

Landlord Boot Camp covers everything that you need to know about the CARES Act and residential Landlord Tenant law in Wisconsin, as amended in March 2012 by Act 143, in March 2014 and again in March 2016 with the passage of Act 176, and again in April of 2018 with Act 317 including:

1. How to properly screen prospective tenants.

2. How to draft written screening criteria to assist you in the selection process.

3. How to comply with both federal and state Fair Housing laws including how to comply with “reasonable modification" and “reasonable accommodation" requests.

4. How to legally reject an applicant.

5. What rental documents you should be using.

6. How you should properly be filling out those rental documents.

7. Best practices to avoid violating ATCP 134 and being sued by your tenant for double damages and actual attorney's fees.

8. How to properly draft a security deposit itemization letter.

9. How to avoid DATCP investigations and Civil Investigative Demands (CID's).

10. How to draft a good Notice for Breach so that it will not be defeated in court.

11. Explanation of when you should use a 5-day notice, 14-day notice, 28-day notice, or if it is necessary for you to use a 30-day notice.

12. Does the CARES Act apply to your rental property and if so, what you must do differently.

13. The best way to serve a notice terminating tenancy.

14. How you should be applying your tenants' rental payments to not run afoul of the Administrative Code.

15. Learn the "Ins and Outs" of the judicial eviction process.

16. How to prepare for your eviction trial in court.

17. Whether or not it is worth it to pursue a money judgment against your tenant.

18. Learn about the two types of garnishment actions.

DATE + TIME:

The seminar will be held on Saturday, April 13t, 2024, from 8:30 am - 5 pm followed by a Q+A from 5 pm - 6 pm.

COST:

If you register before April 1st: 

• RPA Members - $249
• Non-Members - $399
• Refresher (you attended Boot Camp within the last 2 years) - $199

To register click here

Can A Landlord Charge an Application Fee To A Prospective Tenant In Wisconsin?

Earlier today a client emailed me and asked whether or not his property management company could charge a rental applicant an application fee, over and above the cost of a consumer credit report, to cover the company's time and energy reviewing and vetting the rental applicant.

Based on my review of Wisconsin law, a landlord may charge an application fee but it must be refundable.  So while a landlord can charge an application fee, its probably not the kind of application fee that the landlord envisioned, because that application fee must either be returned to the tenant or applied to the tenant's rent or security deposit.  

Let me explain.

Wisconsin law only identifies two costs that a landlord can charge a rental applicant.

1. A landlord can charge a rental applicant for the actual cost, up to a maximum of $25, for a consumer credit report in most situations. Wis. Stat. Sec. 704.085(1) and Wis. Admin Code ATCP 134.05(4).
2. A landlord can charge a rental applicant for the actual costs, up to a maximum of $25, for a background report if the applicant lives outside of Wisconsin, in most situations.  Wis. Stat. sec. 704.085(2).

Neither the Wisconsin Statutes (ch. 704) nor the Wisconsin Administrative Code (ATCP 134) specifically address application fees.  However looking at the definition of an "earnest money deposit" sheds some light.

ATCP 134.02 Definitions.

(3) “Earnest money deposit" means the total of any payments or deposits, however denominated or described, given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for having a rental agreement considered by a landlord. “Earnest money deposit" does not include a fee which a landlord charges for a credit check in compliance with s. ATCP 134.05(3). 

An application fee falls under the definition of an earnest money deposit, as an application fee is a "payment" that is "given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for having a rental agreement considered by a landlord."

So, if an application fee meets the definition of an earnest money deposit, then you must look to the Administrative Code provision that addresses earnest money. 

ATCP 134.05 Earnest money deposits and credit check fees.

(2)  Refunding or crediting an earnest money deposit.

(b) A landlord who receives an earnest money deposit from a rental applicant shall do one of the following if the landlord enters into a rental agreement with that applicant:

1. Apply the earnest money deposit as rent or as a security deposit.

2. Return the earnest money deposit to the tenant.

To summarize, an application fee meets the definition of an “earnest money deposit” and earnest money deposits must be returned to the tenant or applied to the tenant's rent or security deposit. 

So, while a landlord can charge an application fee to a prospective tenant, that fee cannot be kept by a landlord to cover the costs of his/her time and energy to review and vet the applicant's application. If a landlord is not interested in following these two options then it is best not to charge an application fee. 

Another way to look at it, is "no" a landlord cannot charge an application fee to a prospective tenant under the general understanding of what an application fee is (i.e., a fee that the landlord can keep to cover its costs to review and vet the applicant).

If you are charging an application fee and not refunding it or crediting it as set forth in ATCP 134.05(2) then you are violating that provision of the Administrative Code and the applicant could sue you seeking double their damages and their actual attorney's fees or you could be investigated by the Department of Trade & Consumer Protection (DATCP) and DATCP can issue a temporary or permanent injunction ordering you to stop your practice, order you to restore the applicant for any monetary loss suffered, or fined $25 - $5,000 per offense, or serve one year in jail, or both.   Wis. Stats sec. 100.20(6), 100.26(3) and (6).

A Summary of Landlord-Tenant Bills That Some In Madison Are Hoping to Get Passed in 2024

Below is a summary of the many Landlord-Tenant law bills that were drafted in late 2023 and are hoping to move forward in 2024.  You will note that many of these bills are trying to undue the many laws that were passed between 2012-2018 (i.e., Act 143, Act 76, Act 176, and Act 317).  Whether or not these bills have any real possibility to become law now, it is clear that there has been a lot of work behind the scenes and that these bills represent what some in Madison are hoping to get passed sometime in the future. 

If these are not the type of laws that you want passed then I suggest you get involved, join the Rental Property Association of Wisconsin, and start talking to your elected officials in Madison.

SB 655/AB 712: Rental Assistance

SB 655 proposes a substantial extension to the notice period, with tenants having a minimum of 30 days to pay rent or vacate. Moreover, landlords must apply for and be denied emergency rental assistance under a local, state, or federal assistance program, or be ineligible for such assistance before moving forward with the eviction process. In addition, SB 655 mandates that a court must stay eviction proceedings until the landlord files proof of applying for and being denied emergency rental assistance, or, in case where the landlord is ineligible for assistance, until mediation between landlord and tenant occurs. If either party has been approved for emergency rental assistance, the eviction proceedings must also be stayed. Finally, landlords receiving emergency rental assistance are prohibited from raising rent for 12 months, except to recover property tax increases for the tenant’s rental unit.

SB 656/AB 704: Defense of Waiver in Eviction Actions

If a landlord has accepted late rent payments in the past (a waiver), the tenant can now use this as a “waiver” argument to negate a termination notice that insists on strict performance of the rental agreement terms.

SB 657/AB 705: Extending Emergency Assistance Stay

When a tenant is facing eviction, Wisconsin currently only allows a judicial stay period of 10 days if the tenant applies for emergency assistance under the Wisconsin Works program. SB 657 would eliminate the 10-day time limit for tenants to get approved for state emergency rental assistance, even if a writ of restitution has been issued.

SB 658/AB 698: Tenant Right to Counsel

Residential tenants are granted the right to legal counsel at taxpayer expense. Rental agreements must inform tenants of their right to counsel in eviction cases. If the tenant doesn’t waive counsel, the court is compelled to appoint an attorney and halt proceedings. The stay remains in effect until counsel is appointed, and the tenant retains possession of the premises throughout this process.

SB 659/AB 701: Evicting Tenants for Failure to Pay Rent

Currently, landlords can terminate a tenancy by giving tenants a 5-day notice to pay rent or vacate. This bill extends this grace period significantly to 30 days. Current law also says accepting payment from a tenant after initiating an eviction action doesn’t necessarily lead to the dismissal of the case. SB 659 alters this by requiring the dismissal of an eviction action if the tenant pays all rent owed, along with any other payment mandated by the court.

SB 660/AB 699: CCAP Information

Under current law, the director of state courts is prohibited from removing case management information for eviction actions from CCAP for extended periods (10 or 2 years), whether or not the action results in a money judgement or a writ of restitution. This bill eliminates the prohibition related to dismissed actions, meaning that even if an eviction action is dismissed without a money judgement, the defendant names will be promptly redacted.

SB 661/ AB 703: Eviction Stipulations

Currently, a landlord and tenant in a small claim’s eviction can settle and stipulate to a judgement of dismissal. Under SB 661, if a stipulation is entered, the court may now vacate the stipulated judgement only if prior written notice is provided to the noncomplying party. Additionally, the court is prohibited from entering judgement against the noncomplying party unless specific conditions are met, including the application by the complying party, filing proof of noncompliance, and conducting an evidentiary hearing. Current law does not require notice to the noncomplying party before a motion to vacate the stipulation.

SB 662/ AB 700: Tenant Property Disposition

This bill repeals the current law that property left behind by an evicted tenant is presumed abandoned. Instead, if a tenant gives any indication that the property has not been abandoned, the property must either be stored or the tenant given a 30-day notice of disposal, per the previous statues from 2009. Tenants could be charged for storage, disposal of, or sale of property, but these charges would be limited to a “reasonable rate” set by DATCP.

SB 663/AB 702: Allowing small claims to Hear Illegal Lockout Cases

Illegal lockouts occur when a tenant is forced out of a residence without proper court process, by means such as removal of doors, locks, or windows, making the residence uninhabitable. These are known as extrajudicial or “self-help evictions.” SB 663 extends the purview of small claims court to include actions initiated by tenants seeking relief from extrajudicial evictions. The bill also empowers the court to grant a temporary injunction against a landlord or their agent if they have removed or attempted to remove the tenant or their belongings from the process as part of an extrajudicial eviction.

SB 664/AB 713: Eviction Notices

Currently, if a landlord provides notice of termination of a tenant’s tenancy due to failure to pay rent or other amounts due under the rental agreement, and the notice contains an incorrect amount due, the notice remains valid unless the notice is intentionally incorrect, or the tenant paid an amount they believe is due. SB 664 repeals this provision. Further, this bill changes the official notification date from the second day after the eviction notice is mailed to the 5^th day after the notice is mailed. Finally, SB 664 repeals the provision that allows landlords to provide proof of certified mailing instead of an affidavit of service when filing a complaint in small claims court or in an eviction action.

SB 665/AB 709: Short-term Rental Restrictions

Under current law, municipalities may limit the total number of days that a residential dwelling may be rented to no fewer than 180 days. SB 665 limits the total number of days that a residential dwelling may be rented to no more than 90 days.

SB 666/AB 694: Tenant Organizing Rights

Creates a right to organize and engage in various activities aimed at aiding tenants. Landlords and their agents are prohibited from interfering with organizer activities or discriminating or retaliating. Penalties include a $10,000 forfeiture for each violation.

SB 677/AB 706: Rent Abatement and Retaliatory Conduct

Under current law, tenants can only partially withhold rent when their rental is in disrepair, affecting health, safety, or use and occupancy. SB 677 would create a rent abatement schedule and allow tenants to abate rent fully. Any action taken by landlord, such as a rent increase or eviction action, is presumed to be retaliatory if the tenant has complained about defects in the past 12 months.

SB 673/AB 708: Repeal State Prohibition on Local Inspection Regulations

Current law limits the authority of municipalities to require inspection of rental properties. Inspections must be initiated by a complaint or a special inspection warrant, or be performed under a schedule of inspections that meets a number of requirements specified in the statutes. SB 673 repeals these restrictions and gives local governments the ability to reinstate their own rental inspection programs.

SB 670/AB 707: Repeal Local Government Eviction Moratorium

Wisconsin municipalities are currently prohibited from enacting or enforcing an eviction moratorium ordinance. SB 670 repeals this statutory prohibition. This would apply to residential or commercial property.

SB 634/AB 714: Housing Discrimination and Prior Evictions

Under LRB 3918, it would be considered discrimination under Wisconsin’s open housing law to ask about evictions that occurred more than 5+ years prior. This bill would also consider refusal to rent or treat a renter unequally based on an eviction that is 5+ years old as discrimination and allow the individual to bring a civil action.

LRB 0431/AB : Legal Services Grants

Under LRB 0431, the DOA is required to establish a statewide grant program to provide funds for attorneys to provide legal services for low-income tenants in eviction actions in which the tenant alleges they were wrongfully evicted. These grants would be available to a tenant whose family income is at or below 200 percent of the federal poverty line.

LRB 0427/AB : Housing Discrimination

Under current law, discrimination in housing based on sex, race, color, sexual orientation, disability, religion, national origin, marital status, and family status is illegal. This bill adds citizenship and immigration status to the list of characteristics on which it is unlawful to discriminate in housing.

SB 726/AB 696: Rent Abatement

Current law allows tenants to abate rent when the rented property is damaged or has a condition that is hazardous to their health or safety. This bill allows DATCP to dictate the specific items for which a tenant can demand rent abatement and determine the amount of that abatement.

LRB 3889/AB : Residential Leases

This bill prohibits the termination of a lease or a refusal to renew a lease without good cause. Second, it requires 60 day notice if a lease will not be renewed. If also requires renewal leases to cover the same period as the expiring leases. Finally, if a tenant originally signed a lease of less than one year, LRB 3889 allows tenants to continue renting month-to-month but only if they are offered a renewed lease for the same period of the expired lease.

SB 821/AB : Rent control and Inclusionary Zoning

Current law prohibits municipalities from regulating the amount of rent or fees charged for residential property and from imposing inclusionary zoning requirements. This bill eliminates these prohibitions.

How Does A Tenant's Bankruptcy Interfere with Your Eviction?

By Atty. Gary D. Koch of Petrie + Pettit S.C.

A tenant's filing of a bankruptcy, whether it is a Chapter 7 or a Chapter 13, stops your eviction cold under most circumstances!

Evictions are typically matters handled exclusively through the state court system, in whichever county the property is located. Every now and then, though, we have to make a trip to federal court to assist a landlord. This most frequently arises when a tenant files for bankruptcy protection.

Bankruptcy is authorized by the United States Constitution and is codified in Title 11 of the United States Code. There are 15 “chapters” of code, but the most common of those in this context are Chapter 7 and Chapter 13. The bankruptcy protections provided by filing under either chapter are extremely powerful, and can stop an eviction in its tracks.

Chapter 7 bankruptcies are relatively short-lived. The filing of a Chapter 7 bankruptcy creates an automatic stay of any action to collect on a debt, including past-due rent, or to continue any action to recover an interest of the “bankruptcy estate”, which includes the tenant’s right to continued occupancy of the rented premises. Chapter 7 bankruptcies are typically open for four to six months before the case is closed. If the case results in a “discharge,” most debts which existed at the time of the filing are wiped out. Rent incurred before the case was filed is generally discharged in a Chapter 7 bankruptcy.

Chapter 13 bankruptcies usually run for a much longer duration. These bankruptcies may repay some amount of the existing debt to creditors, but do so over a 3 to 5 year period. The filing of a Chapter 13 bankruptcy also creates an automatic stay against collection or recovery.

There are a few exceptions to the automatic stay. Most relevant to a landlord, is that if a judgment of eviction is entered by the state court before the bankruptcy is filed, the landlord can still execute the writ and remove the tenant from the property. Be aware, however, that there is an exception to this exception, so there are limited circumstances when even a previously granted judgment of eviction is halted by a bankruptcy filing!

In all other circumstances, whether a Chapter 7 or a Chapter 13 is filed, in order to move forward with an eviction action, including serving a notice terminating the tenancy, the landlord will need permission from the Bankruptcy Court to do so. We obtain this permission by filing a Motion to Lift the Automatic Stay.

For Chapter 7 bankruptcies, the process of obtaining a lift of the stay requires a specific basis to file and may take as long as the life of the bankruptcy itself, so doing so may be an exercise in futility. Once the Chapter 7 discharges, dismisses or closes, the landlord can proceed against the tenant for any debt incurred after the date the Chapter 7 case was filed. Lifting the stay may allow the landlord to begin the process a few weeks earlier than the end of the bankruptcy.

For Chapter 13 bankruptcies, though, given their much longer duration, lifting the automatic stay is a viable option for the landlord. There need to be grounds for the motion, such as failure of the tenant to pay rent after the filing of the bankruptcy. The Bankruptcy Court will also likely give the tenant a “second chance” with the first motion, and order that any rental arrears incurred after the date the case was filed be included in the repayment plan, but may also order that any future missed rent payments will result in an immediate lifting of the stay.

Evictions are complicated enough, but when you add in a bankruptcy as well, navigating both the state AND federal courts becomes a minefield. 

By Atty. Gary D. Koch of Petrie + Pettit S.C.

I Think I Discovered a Fraudulent Tenant, What Can I do?

Drafted by Attorney Jennifer Hayden of Petrie + Pettit S.C. 

Identity theft or fraud for the purposes of renting an apartment is growing issue. We have heard there are social media pages dedicated to selling fraudulent identities to individuals specifically to rent apartments as well as sites that will produce fake paystubs, bank account information, credit reports and checks or money orders, along with the more traditional methods such as friends and family members posing as a current employer or former landlord to give a good reference.

With all of the available options, it is likely that at some point you may believe you have a tenant who used one or several of these methods to pass your screening criteria, enter into a written rental agreement and take possession of an apartment.

Frequently, the potential for fraud comes to light because of other issues with the tenancy. In most cases, there will be a corresponding failure to pay rent, bounced payments or non-rent breaches occurring some amount of time after the tenant has been residing in the apartment. Unfortunately, once the tenant has been residing in the apartment, it is likely that you will need to issue notice and proceed with filing an eviction action as it is unlikely the police will take any action to remove the tenant, though you can certainly file a police report if you have a sufficient basis to do so. In certain circumstances, the police may be able to provide the actual identity of the person residing in the apartment, which can be helpful in proceeding.

If your rental agreement contains a provision regarding providing accurate and complete information in the application and rental documents as the basis for an eviction action, you could issue notice and, if necessary, file an eviction action based on that provision. You will have to be prepared to prove what information was provided by the tenant and what was fraudulent or inaccurate. We do not believe that this is the type of criminal activity which threatens the health, safety or peaceful enjoyment of other tenants or immediate neighbors such that a Non-Curable Notice for Criminal Activity could be used but, particularly if there is a police report, you may be able to allege that criminal activity provisions of your lease have been breached by the fraud.

Alternatively, if you do not have sufficient evidence of the fraud or rental agreement provisions to proceed on that basis, you can wait until the tenant fails to pay rent or “bounces” a rent payment and serve notice and file an eviction action based on the non-payment. You will want to do so promptly, as collecting charges for any unpaid rent or physical damage to the apartment in these cases is obviously next to impossible.

If the tenant happens to be paying rent, you can wait until there are non-rent breaches such as noise complaints, fights with other tenants, or other activities for which you would normally issue a Notice to Quit or Vacate. You would issue the notice and then file an eviction action on that basis, if the tenant fails to cure or vacate after the notice period.

It is relatively common in these instances that tenants tend to stay in the apartment as long as possible, fail to appear in court but frequently seem to have largely vacated by the time the Sheriff executes the writ. We cannot, of course, guarantee what any particular tenant will do, so, as in all instances, you must proceed as though the matter will be contested in court and it will be necessary to proceed through the eviction case and having the sheriff execute the writ of restitution.

Drafted by Attorney Jennifer Hayden of Petrie + Pettit S.C. 

Just A Few Days Left to Sign Up for Landlord Boot Camp this Saturday

There are only a few days left to sign up for Landlord Boot Camp which will take place this Saturday, November 4th from 8:30 am - 6 pm

I will be covering everything that you need to know about residential landlord-tenant law in Wisconsin.  We will be covering the all important basics like:

• Screening and Qualifying the Prospective Applicant and Fair Housing Issues
• Rental Documents
• ATCP 134: Residential Rental Practice Rules and Security Deposits
• Causes for Evictions
• Notices Terminating Tenancy
• The Judicial Eviction Process, and
• Collection of Your Money Judgement

Post pandemic a lot of new issues have popped up which we will also be covering like:

• The ARES Act and whether your rental property is a "covered property" under the Act and what you must do differently as a result.
• The new focus at both the federal and state level on "fees" that landlords are charging tenants and how that can cause trouble for landlords.
• The newer debt collection form that must be used if you are collecting a debt for another
• The rise in tenant's appearing in court with attorneys and how that is impacting the court process.
• The issue of sealing (redacting of a tenant's name) in eviction actions, and much more.

There will also be time for Q+A from 5 pm - 6 pm

You will also receive a PDF of my seminar outline and exhibits that is over 100+ pages and which prior attendees have stated is worth the price of admission alone.

I hope that you can spend the day with me this Saturday.

Please note that Landlord Boot Camp is only being offered as an in-person event.  There is no option to attend virtually. 

To learn more and to register for Landlord Boot Camp please go to the Rental Property Association of Wisconsin's web page. 

Now Available for Pre-Order - "THE LANDLORD'S COMPANION: A Comprehensive Handbook on Residential Landlord-Tenant Law in Wisconsin" by Atty. Tristan R. Pettit

Proposed Anti-Landlord Legislation Being Shopped Around Seeking Co-Sponsors

Yesterday was a busy day for those legislators that are not fans of landlords or what we do as a profession.  As if the rampant sealing of eviction records that is prevalent in Milwaukee County was not bad enough (so that future landlords will not be aware that an applicant had a recent eviction), below is a list of proposed legislation from Madison that is being passed around by the authors trying to get co-sponsors.

If this isn't a reason to become a member of the Rental Property Association of Wisconsin (RPA) which was formally known as the Apartment Association of Southeastern Wisconsin (AASEW), I don't know what is. 

LRB-3892 Memo CCAP Information (Clancy, Ryan) Information contained in the Consolidated Court Automation Programs Internet site related to dismissed eviction actions. Deadline: Wednesday, November 1, 5 pm

LRB-3893 Memo Rent Abatement (Madison, Darrin) Rent abatement and retaliatory conduct and granting rule-making authority. Deadline: Wednesday, November 1, 5 pm

LRB-4677 Memo Rental Inspections (Madison, Darrin) Local inspections of rental properties. Deadline: Wednesday, November 1, 5 pm

LRB-4544 Memo Eviction Moratoriums (Madison, Darrin) Repealing the prohibition against local governments enacting or enforcing an eviction moratorium on a landlord. Deadline: Wednesday, November 1, 5 pm

LRB-2077 Memo Tenant Right to Counsel (Clancy, Ryan) A residential tenant's right to counsel in an eviction action and making an appropriation. Deadline: Wednesday, November 1, 5 pm

LRB-3918 Memo Housing Discrimination (Ratcliff, Melissa) Discrimination in housing based on prior eviction and providing a penalty. Deadline: Wednesday, November 1, 5 pm

LRB-0431 Memo Legal Services Grants (Anderson, Jimmy) Grants to provide legal services to tenants in eviction actions, granting rule-making authority, and making an appropriation. Deadline: Wednesday, November 1, Noon

LRB-2760 Memo Tenant Organizing Rights (Anderson, Jimmy) Rights of tenants to organize and engage in certain activities and providing a penalty. Deadline: Wednesday, November 1, Noon

LRB-0427 Memo Housing Discrimination (Anderson, Jimmy) Discrimination in housing based on citizenship or immigration status. Deadline: Wednesday, November 1, 5 pm

LRB-0430 Memo Rent Abatement (Anderson, Jimmy) Rent abatement for tenants and granting rule-making authority. Deadline: Wednesday, November 1, 5 pm

LRB-3894 Memo Tenant Property Disposition (Clancy, Ryan) Disposition of property left behind by a tenant and granting rule-making authority. Deadline: Wednesday, November 1, 5 pm

LRB-3895 Memo Tenant Evictions (Clancy, Ryan) Evicting tenants for failure to pay rent. Deadline: Wednesday, November 1, 5 pm

LRB-3896 Memo Evictions (Clancy, Ryan) Actions for relief from extrajudicial eviction in small claims court. Deadline: Wednesday, November 1, 5 pm

LRB-3899 Memo Evictions (Clancy, Ryan) The defense of waiver in eviction actions.Deadline: Wednesday, November 1, 5 pm

LRB-3898 Memo Evictions (Clancy, Ryan) Procedures in eviction actions for noncompliance with stipulated judgments of dismissal. Deadline: Wednesday, November 1, 5 pm

LRB-3901 Memo Eviction Stay (Clancy, Ryan) The mandatory stay of eviction proceedings against a tenant who has applied for emergency assistance. Deadline: Wednesday, November 1, 5 pm

LRB-3902 Memo Eviction Notices (Jacobson, Jenna) Eviction notices. Deadline: Wednesday, November 1, 5 pm

LRB-4143 Memo Rental Assistance (Hong, Francesca) Requiring landlords or tenants to apply for emergency rental assistance and participate in mediation prior to eviction and prohibiting certain rent increases. Deadline: Wednesday, November 1, 5 pm

LRB-3889 Memo Residential Leases (Palmeri, Lori) Certain requirements for residential leases. Deadline: Wednesday, November 1, 5 pm

FAQ Regarding The Recent Decision on the Sealing of Eviction Records by the Wisconsin Supreme Court

This FAQ blog post was written by Atty. Heiner Giese who is the attorney for the Rental Property Association of Wisconsin, Inc. (RPA) formally known as the Apartment Association of Southeastern Wisconsin (AASEW)

The Wisconsin Supreme Court held an open administrative conference on October 9, 2023, to consider a petition (No. 22-03) filed by Legal Action of Wisconsin (LAW) concerning the retention of court records in eviction cases. Evictions are heard in small claims courts throughout the state. LAW’s petition asked the court to shorten court record retention rules so that cases where no money judgment was entered against a tenant would be deleted from the state CCAP filing system after one year. LAW’s petition did not seek to change the current rule that eviction cases with a money judgment remain public for 20 years.

1. So what exactly did the seven justices decide at their October 9 conference?

Exactly what they decided is not yet certain. While they took a 4-3 vote in favor of changing the record retention rules this has to be put in writing and formally issued as an order by the court. There may then be separate opinions by justices supporting or opposing the changes.

Contrary to the impression from some media coverage, any eviction where a landlord gets a judgment for back rent or even just a judgment for court costs if the tenant moves out WILL NOT “go away” after two years. Those eviction cases remain public for 20 YEARS.

2. Reporting by the media says the court “sided with tenant advocates.” Is that what happened?

The media might be interpreting the 4-3 vote as the majority siding with tenant advocates and the minority siding with landlord advocates. But while we don’t yet have a written order the majority vote clearly rejected LAW’s request for a one year record retention and declared that dismissed evictions would remain public for two years. Numerous tenant advocates and social agencies had filed comments in support of the one year rule. The media failed to look at the comment submitted by major Wisconsin rental property owner groups which opposed a one-year rule but suggested the court adopt a two-year rule. So this 4-3 decision actually sided with the landlords.

3. Are Wisconsin landlords generally in favor of a rule whereby dismissed evictions aren’t searchable anymore after two years?

Many owners would probably prefer a longer look-back period than two years. Some larger owners have policies whereby they want to know of any evictions filed against a prospective tenant for a time period of between three and seven years. Credit histories are generally maintained for seven years by credit reporting agencies, for example.

4. So why did the landlord groups propose a two-year rule?

For two reasons. First the existing Supreme Court Rule SCR 72.01(8) which governs all small claims cases including evictions already operates to remove many eviction records on CCAP two years after the case is closed. For example, of the 1,101 evictions filed in Milwaukee County in December 2019, 517 are not viewable by landlords using CCAP to screen tenants. Secondly, landlord groups supported a statute favorable to tenants passed in 2018. Section 258.20(2)(b) gives the Director of State Courts the authority to remove eviction cases after two years if no money judgment has been docketed. The statute also cuts the retention period to ten years from twenty years for cases where a writ of restitution was issued against the tenant.

5. Why were three justices opposed to the two-year rule if there wasn’t any strong opposition to it by any of the interested parties?

We’ll have to see what any dissenting opinions might say but of course this issue on eviction records doesn’t just involve tenants and landlords as interested parties. The public also has a strong interest in open records. Just because a current landlord and tenant might agree that an eviction record should be effectively sealed doesn’t mean that future landlords or other credit providers don’t have the right to see whether someone has a track record of not paying rent. Even private parties: if you are a person looking for a roommate to share an apartment you’d want to know if someone didn’t pay their rent three years ago, even if the eviction filed against them was dismissed because they moved out just before the court hearing.

6. At the oral hearing on the petition on September 7, 2023, tenant advocates proposed that the Wisconsin Supreme Court and not the Wisconsin Legislature should have ultimate authority over court record retention rules. Has that question been decided?

That legal question may not be covered when the court issues its written order. But it was revealing that Justice Rebecca Dallet, who voted with the majority, said that the court was not contravening an act of the legislature. She pointed out the two-year provision in section 758.20 and stated that the legislature “had the right to do that and we are implementing their policy.”

*******

This FAQ has been prepared by Atty Heiner Giese on behalf of the Rental Property Association of Wisconsin, Inc. (formerly AASEW) and other interested rental property owners and associations.

Next LANDLORD BOOT CAMP will be November 4, 2023

My next Landlord Boot Camp for the Rental Property Association of Wisconsin, Inc. (formerly known as the AASEW) will be held on Saturday November 4, 2023. This Boot Camp will be in-person and streamed virtually. You choose the format that best serves you.

There have been so many changes in how evictions and other Landlord-Tenant law matters are handled post COVID that I strongly recommend that you attend this Boot Camp to get caught up on all the changes. 

• Attendees will receive a searchable 100 page + PDF Boot Camp manual, making it easier to search and reference items in the future.
• A recording will be available to attendees for 14 days after the event to re-watch portions that you want a deeper understanding of.
• As in prior Boot Camps, the live Q & A session will be part of this event.
• If you attend the Boot Camp in person, lunch will be provided.

Landlord Boot Camp covers everything that you need to know about the CARES Act and residential Landlord Tenant law in Wisconsin, as amended in March 2012 by Act 143, in March 2014 and again in March 2016 with the passage of Act 176, and again in April of 2018 with Act 317 including:

1. How to properly screen prospective tenants.

2. How to draft written screening criteria to assist you in the selection process.

3. How to comply with both federal and state Fair Housing laws including how to comply with “reasonable modifications" and “reasonable accommodations" requests.

4. How to legally reject an applicant.

5. What rental documents you should be using.

6. Best practices to avoid violating ATCP 134 and being sued by your tenant for double damages and actual attorney's fees.

7. How to properly draft a security deposit itemization letter.

8. How to avoid DATCP investigations and Civil Investigative Demands (CID's).

9. How to draft a good Notice for Breach so that it will not be defeated in court.

10. When you should use a 5 day notice, 14 day notice, 28 day notice.

11.  Does the CARES Act apply to your rental property and if so, what you must do differently.

12. The best way to serve a notice terminating tenancy.

13. Learn the "Ins and Outs" of the judicial eviction process.

14. How to prepare for your eviction trial in court.

15. Whether or not it is worth it to pursue a money judgment against your tenant.

16. Learn about the two types of garnishment actions.

DATE + TIME:

The seminar will be from 8:30 am - 5 pm followed by a Q+A from 5 pm - 6 pm.

COST:

• AASEW Members $229
• Non-Members $379

To register click here

If you have questions you can contact the AASEW at (262) 893-8691 or admin@aasew.org

Governor Evers Signs Bipartisan Package of Affordable Housing Legislation

State of Wisconsin sent this bulletin at 06/22/2023 09:46 AM CDT

FOR IMMEDIATE RELEASE: June 22, 2023

Contact: GovPress@wisconsin.gov

Gov. Evers Signs Bipartisan Package of Affordable Housing Legislation

MADISON — Gov. Tony Evers today signed five bipartisan bills to help expand access to safe, affordable housing for working families, a critical effort to help support the state’s workforce and maintain the state’s economic momentum. “Access to safe, reliable, and affordable housing statewide is an absolutely critical part of addressing Wisconsin’s long-standing workforce challenges,” said Gov. Evers. “But even beyond that, making sure we have safe, reliable, affordable housing statewide is about more than ensuring folks have a roof over their head a night. Housing ensures our kids have the stability to bring their best, full selves to the classroom, that hardworking folks can live in the communities they work in, which is important for the long-term strength of our economy, that individuals working to overcome substance use disorder have a safe place to focus on recovery, and that folks reentering our communities can do so safely.” A list of the five bills signed is available below Assembly Bill 264, now 2023 Wisconsin Act 14: Creates a residential housing infrastructure revolving loan fund program, allowing a residential housing developer to apply to the Wisconsin Housing and Economic Development Authority (WHEDA) for a loan to cover the costs of installing, replacing, upgrading, or improving public infrastructure related to workforce housing or senior housing. Assembly Bill 265, now 2023 Wisconsin Act 15: Creates a main street housing rehabilitation revolving loan funding program, allowing an owner of rental housing to apply to WHEDA for a loan to cover the costs of an improvement to workforce housing to maintain it in a decent, safe, and sanitary condition or to restore it to that condition. Assembly Bill 266, now 2023 Wisconsin Act 16: Establishes a new procedure for certiorari review of local land use decisions regarding residential development, providing that the new procedure for certiorari review is the only review available for a decision of a political subdivision regarding an application for approval, such as a permit or authorization for building, zoning, driveway, stormwater, or other activity related to residential development. Assembly Bill 267, now 2023 Wisconsin Act 17: Makes various modifications to the Workforce Housing Rehabilitation Loan Program administered by WHEDA, including but not limited to: Specifying the home must be a single-family residence that the applicant occupies as the applicant’s primary residence and that was constructed at least 40 years prior to the date of the loan application; Allowing eligible rehabilitation to include the removal of lead paint, asbestos, mold, or other environmental contamination; Allowing eligible rehabilitation to include repairing or replacing flooring or an interior wall or ceiling, or an internal plumbing system; and Requiring WHEDA to establish policies and procedures to administer the loan program and the policies and procedures must, to the extent practicable, address credit underwriting guidelines and loan repayment requirements. Assembly Bill 268, now 2023 Wisconsin Act 18: Creates a commercial-to-residential conversation revolving loan fund program under WHEDA, allowing a developer to apply to WHEDA for a loan to cover the costs of converting a vacant commercial building to workforce housing or senior housing; and Requires the housing associated with a conversion loan must be new residential housing for rent or for sale and must consist of 16 or more dwelling units.

Attempt to Add Source of Income and Veteran Status As New Federal Protected Classes

Two U.S. Senators recently introduced a new federal bill that is being referred to as the "Fair Housing Improvement Act" (FHIA).  The FHIA introduces two additional protected classes to the seven protected classes under the Fair Housing Act of 1968.  

The first proposal would make veterans of wars a new federal protected class.

The second, would make "source of income" a new federal protected class.  If "source of income" becomes a federal protected class then landlords would be unable to deny a rental applicant solely because they receive a Section 8 Rent Assistance Voucher.  "Source of income" would also include HUD-Veterans Affairs Supportive Housing (HUD-VASH) vouchers, benefits received through Social Security, income received by a court order, payment from a trust or guardian, or any other lawful source of income.

Currently many states and municipalities already have "source of income" protection laws.  Milwaukee County added the class of "receipt of rental or housing assistance" as a protected class in 2018.  The argument being made is that the states and municipalities enforcement or "source of income" discrimination varies widely, and as such "source of income" must become a federal protected class.

Beware of Clauses Requiring More than 28-Days’ Notice to Terminate Month-to-Month Tenancies

By Atty. Gary D. Koch

Clauses requiring tenants to provide 60-Day Notice to terminate a month-to-month tenancy are popular – we see them a lot in rental agreements. Recently, though, we have seen the Wisconsin Department of Agriculture, Trade and Consumer Protection take issue with such clauses in rental agreements in month-to-month tenancies that require the tenant to give anything more than a 28-Day Notice to terminate the tenancy.

These DATCP challenges can end one of two ways: the landlord can fight the Department, or, more likely, the landlord concedes and removes the clause from its rental agreements, potentially paying a fine for the pleasure of doing so.

We have not yet had a client want to fight DATCP on this issue, but we believe that there may be statutory grounds to do so.

The DATCP’s argument is found in Wisconsin Administrative Code § 134.06(3)(a)(2), prohibiting withholding from the security deposit for any charges other than for “Unpaid rent for which the tenant is legallyresponsible, subject to s. 704.29, Stats.” (Emphasis added). The Department believes that any notice period more than 28 days is illegal.

Wisconsin Statute § 704.19 discusses what notices are necessary to terminate periodic tenancies, such as month-to-month tenancies. Pursuant to Wis. Stat. § 704.19(3), “At least 28 days’ notice must be given” to terminate a month-to-month tenancy (emphasis added). It seems pretty straightforward that “at least” does not mean “exactly”.

Elsewhere in the same statute, we find that a month-to-month tenancy can be terminated “only by giving to the other party written notice complying with this section, unless any of the following conditions is met: (1) [t]he parties have agreed expressly upon anther method of termination and the parties’ agreement is established by clear and convincing proof.” (Emphasis added). Again, it seems pretty straightforward that a clause in the lease calling for a 60-Day Notice to terminate the month-to-month tenancy would be clear and convincing proof that the parties have expressly agreed upon another method of termination.

Nevertheless, the Department takes the position that landlords can ONLY require a 28-Day Notice to terminate the tenant’s month-to-month tenancy.

Do these arguments win? That remains to be seen. It might be a serious undertaking to find out the answer, but Petrie + Pettit is certainly ready to take on that challenge with you!