The 10 Deadly Sins: 10 Provisions That Landlords Cannot Include in Their Wisconsin Residential Rental Agreements

With the passage of Act 143 (2012) and Act 76 (2014) the legislature has created several new provisions that a Residential Landlord cannot include in his Rental Agreement. There are currently 10 items, which I affectionately refer to as the "10 Deadly Sins" that if they are included in your Wisconsin residential rental agreement will render the agreement void and unenforceable.

In my representation of landlords over the past 20 years, the two most frequent situations in which I have found an illegal provision in a rental agreement were because: (1) the landlord decided to draft his/her own rental agreement and didn't know that Wisconsin law prohibited him/her from including certain language, and (2) the landlord used a rental agreement that s/he found on the internet that was not drafted by a person knowledgeable about Wisconsin landlord-tenant law.

Section 704.44 of the Wisconsin Statutes sets forth the prohibited provisions.

You cannot include a provision in your Wisconsin residential rental agreement that:

1. Allows a landlord to do any of the following because the tenant has contacted an entity for law enforcement services, health services, or safety services:

a. Increase rent

b. Decrease services

c. Bring an action for possession of the premises (i.e. eviction lawsuit)

d. Refuse to renew a rental agreement

e. Threaten to take any action in (a) - (d)

This prohibition is pretty self-explanatory. You cannot have a rental agreement provision that allows a landlord to retaliate against a tenant in any way just because the tenant has called the police, the municipal building inspection department, or other agency to complain about something that the landlord did (when they shouldn't have) or something the landlord didn't do (when they should have).

2. Authorizes the eviction of a tenant from the property other than by the judicial eviction process set forth in the Wisconsin Statutes.

Essentially this means that you cannot put any language in your rental agreement that states that if the tenant refuses to vacate at the end of a lease or after committing a breach, that the landlord is able to engage in self-help eviction. Your rental agreement cannot state that the landlord can change the locks so that the tenant is locked out. Your rental agreement cannot state that the landlord can remove the door to the apartment. The rental agreement cannot state that the landlord can turn off the heat or electricity to the unit. Nor can your rental agreement state that the landlord can remove the tenant's belongings and put them on the curb or in a storage facility.

If a tenant refuses to leave your property, the only legal way to have them removed is to file an eviction action against them, obtain a judgment of eviction, and if necessary involve the Sheriff's Department to physically remove the tenant. Because this is the only legal way to remove a tenant, it is illegal to include some other procedure to remove a tenant in your Wisconsin residential rental agreement.

3. Provides for the acceleration of rent payments if the tenant defaults or breaches the rental agreement or otherwise waives the landlord's obligation to mitigate damages as required in section 704.29, Wis. Stats.

Some commercial leases include an "acceleration of rents" clause but such clauses are prohibited in Wisconsin residential leases. So if a tenant breaches their rental agreement the landlord cannot require that the tenant immediately pay all future rent through the end of the term. According to sec. 704.29 of the Wisconsin Statutes, the landlord must attempt to mitigate the tenant's damages by trying to re-rent the unit. If the landlord is able to re-rent the unit then the breaching tenant will no longer be responsible for the rent once the new tenant moves in and begins paying rent. If the landlord is unable to re-rent the unit then the breaching tenant will be responsible for all of the rent through the end of the term, however since the landlord is unable to determine if that will be the case at the time of the breach, the landlord cannot include language in the rental agreement that the tenant must pay all future rent immediately upon a breach. It is illegal for a landlord to avoid his duty to mitigate the breaching tenant's damages (i.e. make effort to re-rent the unit) by putting such language in the rental agreement.

4. Requires the tenant to pay the landlord's attorney's fees or costs that are incurred in any legal action or dispute arising under the rental agreement.

This is the illegal provision that I see the most often when reviewing rental agreements. The lease agreements that are sold at OfficeMax and Office Depot contain this prohibited language. This is also the illegal language that was included in the rental agreement at issue in the seminal prohibited rental provision case of Baierl v. McTaggart.

In a commercial lease it is acceptable to include language that requires a tenant to pay for the landlord's attorney's fees and costs however it is not allowed in the residential context. A landlord who prevails in court and has a tenant properly evicted will still be responsible for paying his/her own attorney's fees. If you are interested in learning more about the Wisconsin Supreme Court's reasoning you should read the Baierlcase.

5. Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

A Wisconsin residential rental agreement is prohibited from including a clause that says that the tenant authorizes the landlord to automatically take a judgment against the tenant and that the tenant has no right to defend against it.

6. Relieves the landlord from liability for property damage or personal injuries caused by the landlord's negligent acts or omissions.

To put it simply, if the landlord causes damage or injury to a tenant then the landlord will be responsible for it. A landlord cannot remove his/her liability by having a tenant sign a rental agreement waiving that responsibility. For example, if a landlord is aware that the railing on his rental property's second floor porch is loose and the landlord has not gotten around to repairing it for several weeks, the landlord could be responsible for the tenant's injuries should he fall off the porch, regardless of what the rental agreement says.

7. Imposes liability on a tenant for any of the following:

(a) Personal injury arising from causes clearly beyond the tenant's control.

(b) Property damage caused by natural disasters or by persons other than the tenant's the tenant's guests or invitees.

This Deadly Sin is even broader in scope than the 6th Deadly Sin. Essentially, the rental agreement cannot state that a landlord can hold a tenant responsible for personal injuries that were caused by something beyond a tenant's control. So if a massive snowstorm injures someone or if an electrician hired by the landlord improperly wires the rental unit and their negligence causes injury to someone, a landlord cannot state that the tenant is liable for those injuries as they were out of the tenant's control.

Similarly, if that massive snowstorm or the faulty wiring by the electrician hired by the landlord results in property damage, a rental agreement cannot state that the tenant in liable for that damage as the damage was caused by a natural disaster and/or a person other than the tenant or the tenant's guests or invitees.

However, it is legal and enforceable for a rental agreement to state that a tenant will be responsible for personal injuries and/or property damage if the injuries or damage were caused by the tenant, the tenant's guests, or the tenant's invitees.

8. Waives any other statutory or legal obligation of the landlord to deliver the unit in a fit or habitable condition or maintain the unit during the tenancy.

A landlord has a responsibility to provide the tenant with an rental unit that is liveable and safe. A landlord also has the responsibility to repair and maintain the property to insure that it remains safe and livable. A landlord cannot avoid this responsibility even if the tenant agrees to allow him/her to do so in the rental agreement.

9. 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 of that crime.

Simply stated, your rental agreement cannot state that the tenant or a legal occupant is the victim of a crime.

10. Allows the landlord to terminate a tenant's tenancy for a crime committed in relation to the rental property and the rental agreement does not include the notice of domestic violence protections required under sec. 704.14, Wis. Stats.

Most good rental agreements contain some language along the lines of "Tenant shall not engage in or allow others to engage in any criminal activity on the property." You definitely want to have such language in your rental agreement. Sec. 704.14 requires that all residential rental agreements in Wisconsin must contain the language set forth in the statute verbatim (i.e. word for word - no summaries allowed). If you have failed to include the domestic abuse protections language then your rental agreement will be void if the agreement also includes language allowing you to terminate a tenant's tenancy if the tenant or their guest have engaged in criminal activity. So the key here is to make sure that your rental agreement contains the mandatory notice of domestic abuse protections set forth in sec. 704.14.

Wisconsin residential landlords need to make sure that their rental agreements do not contain any of the aforementioned "10 Deadly Sins." Failure to remove such illegal provisions will result in your rental agreement being declared void and unenforceable and may even expose you to a lawsuit for double damages and attorney's fees by the tenant.

JUST ANNOUNCED: AASEW's Next Landlord Boot Camp - Saturday, March 8, 2014

Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands.

The Apartment Association of Southeastern Wisconsin's 9th “Landlord Boot Camp" can help you navigate these treacherous waters and learn how to run your properties with greater profit and less hassles.

Who: Taught by Attorney Tristan Pettit, who drafts the landlord tenant forms for Wisconsin Legal Blank

When: March 8th, 2014 Saturday 8:30 AM – 5:30 PM Registration opens at 7:00 AM

Where: Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included: 100 plus page manual to help you put what you learn into practice.

Price: Members $159. Non-Members $249

Specials: Not a member? Pay just $1 more than the non member price and receive both the Boot Camp and an AASEW membership for the remainer of 2014 including member discounts at Home Depot, Sherwin Williams and more.

Wisconsin landlord-tenant laws are constantly changing. To help keep you up to date we offer prior attendees a $50 discount.

What you will learn at the Apartment Association's 2014 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, as amended in March 2012 by Act 143 and again in March 2013 with the passage of Act 76, 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 and why.
6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
8. When you are legally allowed to enter your tenant's apartment.
9. How to properly draft an eviction summons and complaint.
10. What to do to keep the commissioner from dismissing your eviction suit.
11. What you can legally deduct from a security deposit.
12. How to properly draft a security deposit transmittal ("21 Day") letter
13. How to handle pet damage.
14. What to do with a tenant's abandoned property and how this may affect whether or not you file an eviction suit.
15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).
16. An ample question and answer period. This alone is worth the admission. . . . and much more.

You get all this for less than you would pay for an hour of an attorney's time.

Last year's AASEW Landlord Boot Camp was filled to capacity. So call early to reserve your spot.

The easiest way to register is to do so online at www.LandlordBootCamp2014.com or you can call the Association at (414) 276-7378 or email them membership@apartmentassoc.org today to reserve your spot.

Hope to see many of you there.

T

ACT 76 - Wisconsin's New Landlord-Tenant Law - Part 1: Background and Overview

Senate Bill 179, which is commonly referred to as the "Landlord-Tenant Law Bill," is on its way to becoming law in the near future. For many of us it has been a long wait.

After initially being introduced in the Wisconsin Senante on May 8, 2013, the Senante concurred to some changes made to SB 179 by the Assembly on October 16, 2013. It is expected that Governor Walker will sign this bill into law prior to the end of the year.

The new law is 8 pages long and will make sweeping changes to Wisconsin's landlord-tenant laws as we currently know them. This new law will benefit landlords and "good" tenants. "Bad" tenants (i.e. those that don't pay rent on time, cause damage to the rental property, ignore the rights of their neighbors and fellow tenants etc. etc.) will not like this new law.

This new law was initially created to fix many of the unintended consequences from last year's Landlord's Omnibus law -- Act 143. Act 143 was unfortunately rushed through the legislative process in a little over a month. Rushed legislation is never good. As a result of the speed with which Act 143 was created, coupled with the fact that those of us that spend most of our days dealing with landlord-tenant issues were not consulted, there were some serious flaws in Act 143. SB 179 will repair those flaws.

Fortunately, SB 179 was not rushed like its predecessor. Work on SB 179 began even prior to Act 143 becoming law -- once the problems were recognized. Many of us involved in the process worked on SB 179 since April of 2013. SB 179 was officially introduced in the Senate on May 8, 2013, and as mentioned previosly, it was finalized in mid-October. So from start to finish it took approximately 6 months not including the time for the Governor to sign it.

I have been asked by many over the past few weeks, when will this new law become effective. Well, the answer to that depends in part on when the Governor signs it. SB 179 states that most componants of the new law will become effective on the 1st day of the 3rd month following its publication. So it would become effective February 1, 2014 or March 1, 2014 depending on when it is signed into law.

By my count, the new law repaired/corrected 6 sections of Act 143 and introduced or amended an additional 13 other sections that will affectlandlord-tenant law in Wisconsin.

In future blog posts during I will summarize and discuss all 19 componants of the new law.

Why I Am So Excited About This Saturday's AASEW Landlord Boot Camp

I am really excited about this Saturday's AASEW Landlord Boot Camp. Why you ask? Well let me tell you.

Just last week the Senate in Madison passed SB 179 which is a very large and sweeping revision to much of landlord-tenant law in Wisconsin. This bill not only cleans up the unintended consequences of last years Act 143, it also makes some major changes such as:

- Applies the new streamlined abandoned property law to evictions

- Allows the towing of vehicles on private property without the need for a citation to be issued first

- Prevents municipalities from requiring landlords to distribute information or report information to the government that is not required by state or federal law

- Allows non-lawyers to appear in court to represent their LLC's in eviction and other small claims actions

- It speeds up the eviction process - requiring the court to hear and complete an eviction trial within 20 days of the return date

- Allows property management companies or another agent of the owner to file evictions on behalf of their clients/owners

- Clears up the confusion regarding evicting a tenant that was involved in criminal activity

This bill has not yet been signed into law, but barring a veto from Governor Walker -- which is not anticipated -- it will become law very soon. SB 179 will help landlords and good law-abiding tenants alike.

So the reason I am so excited about this Saturday's Boot Camp is because it will be the 1st opportunity I have to teach landlords and property managers about the new changes.

SB 179 is a very comprehensive law. I just completed my outline this past weekend and boy there is a lot of information to cover.

If you are interested in learning about this new bill as well as the 7 other large topics that I will be teaching (including: the judicial eviction process, causes for eviction, security deposit issues, screening applicants, rental documents and much much more) at this Fall's Boot Camp -- please go to www.landlordbootcamp2013.com and sign up as there are still a few spots left!

I hope to see many of you there.

T

SB 179 ("Landlord-Tenant Bill") Is On It's Way To Governor Walker To Be Signed Into Law

At about 6:40 pm on October 16, 2013, SB 179 (commonly referred to as the Landlord-Tenant Bill) was concurred by the state Senate after a minor amendment was made in the state Assembly earlier. The bill passed 18-15 despite attempts to delay the bill via a motion to non-concur. The bill now goes to the Governor who has 30 days to "call" for the bill and sign it.

If you would like to watch the hearing you can do so by clicking here. The portion of the hearing dealing with SB 179 starts at approximately 2:58.

This bill which will hopefully become law -- absent a veto by the Governor -- will makes some major changes to Wisconsin Landlord Tenant law and the small claims eviction procedure. It also cleans up several of the unintended consequences of Act 143, which also dealt with landlord-tenant law, which became law back on March 31, 2012.

I will be devoting a segment of the AASEW's upcoming Landlord Boot Camp on October 26, 2013, to discussing SB 179 and its effect on the landlord-tenant landscape. For more information on the upcoming Boot Camp, including a summary of other topics that will be covered, prior attendees' testimonials, and how to register to attend, please go to www.LandlordBootCamp2013.com.

Assuming the Governor signs SB 179 into law, I will most likley be posting on this topic again in the near future and offerring my own analysis of the law, but for now I have reproduced for the Wisconsin Legislative Council's October 14, 2013 memo which summarizes current law in Wisconsin and then summarizes how SB 179 will affect/change current law.

This memorandum describes Senate Substitute Amendment 1 to 2013 Senate Bill 179, as amended by Senate Amendments 17 and 18, relating to landlord-tenant law, small claims actions, and towing of vehicles. In addition, this Memo describes Assembly Amendment 1 to 2013 Senate Bill 179, as passed by the Senate. The section numbers in brackets refer to the sections of Senate Bill 179 that are described under each heading, below.

RESTRICTIONS ON LOCAL ORDINANCES [Sections 1-4]

Under current law, a city, village, town, or county (municipality) is prohibited from enacting or enforcing certain ordinances relating to landlords and tenants, such as an ordinance imposing a moratorium on eviction actions or an ordinance that places certain limitations on what information a landlord may obtain and use concerning a prospective tenant. [ss. 66.0104 and 66.1010, Stats.]

Senate Bill 179 additionally prohibits a municipality from enacting or enforcing an ordinance that does any of the following:

• Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
• Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
• Requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.
• Requires a landlord to communicate to the municipality any information concerning the landlord unless the information is required under federal or state law or is required of all residential real property owners.

Senate Substitute Amendment 1 authorizes a municipality to enact or enforce an ordinance that requires a landlord to communicate to the municipality any information concerning the landlord ifthe information is solely information that will enable a person to contact the owner or, at the option of the owner, an agent of the owner.

Senate Amendment 17 to Senate Substitute Amendment 1 authorizes a municipality to enact or create an ordinance that requires a landlord to communicate information to tenants that is not required to be communicated to tenants under federal or state law if the ordinance has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

Assembly Amendment 1 to Senate Bill 179, as passed by the Senate (i.e., as amended by Senate Substitute Amendment 1 and Senate Amendments 17 and 18) modifies the provision described above that generally prohibits a municipality from enacting or enforcing an ordinance requiring a landlord to communicate to the municipality any information concerning the landlord, unless an exception applies. Assembly Amendment 1 provides that the general prohibition relates to communication to the municipality of any information concerning the landlord or a tenant, unless an exception applies.

NOTIFICATION TO A PROSPECTIVE TENANT OF BUILDING CODE OR HOUSING CODE VIOLATIONS [Section 11]

Under current law, if a landlord has actual knowledgeof any uncorrected building code or housing code violation in the dwelling unit or a common area that presents a significant threat to the prospective tenant’s health or safety, the landlord must disclose the violation to a prospective tenant before entering into a rental agreement or accepting any earnest money or security deposit. [s. 704.07 (2) (bm), Stats.]

Under Senate Bill 179, the landlord must disclose the types of violations described above only if he or she has received written notice of the violation from a local housing code enforcement agency.

Senate Substitute Amendment 1 deletes this provision from the bill.

COMMISSION OF CRIMES ON RENTAL PROPERTY [Section 18]

Under current law, if a lease contains any of a list of prohibited provisions, the lease is void and unenforceable. Among the prohibited provisions is a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime. [s. 704.44 (9), Stats.]

Senate Bill 179 repeals the provision of current law describe above.

Senate Substitute Amendment 1 replaces the current law provision described above with a provision that states that the lease is void and unenforceable if it contains a provision that allows the landlord to terminate a 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 the victim of that crime. Victim is defined by reference to s. 950.02 (4), which generally provides that “victim” means a person against whom a crime has been committed, unless he or she is the person charged with or alleged to have committed the crime.

In addition, the substitute amendment requires a lease to include a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats. The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking. The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premises.

The substitute amendment also provides that a lease is void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for criminal activity in relation to the property and the lease does not include the notice regarding domestic abuse protections described above.

Senate Amendment 18 to Senate Substitute Amendment 1 modifies the language required under the notice of domestic abuse protections. Under Senate Amendment 18, the notice provides that a tenant has a defense to an eviction action under the circumstances provided in s. 106.50 (5m) (dm), Stats., instead of providing that a tenant may be able to stop an eviction action under such circumstances.

TERMINATION OF TENANCY IN MOBILE OR MANUFACTURED HOME COMMUNITIES FOR THREAT OF SERIOUS HARM [No provision in Bill]

Under current law, a landlord may terminate the tenancy of a tenant if the tenant commits one or more acts, including verbal threats, that cause another tenant, or a child of that other tenant, who occupies a dwelling unit in the same single-family rental unit, multi-unit dwelling, or apartment complex as the offending tenant, to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises. [s. 704.16 (3), Stats.]

Senate Substitute Amendment 1 authorizes a landlord to terminate the tenancy of the tenant of a mobile or manufactured home community who threatens another tenant, or child of another tenant, of the mobile or manufactured home community under the same circumstances, described above.

TIMING OF RETURN OF SECURITY DEPOSIT [Section 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first. [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, if a tenant is evicted, the landlord must return the security deposit to the tenant within 21 days after the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant's rental agreement terminates, the date on which the new tenant’s tenancy begins.

Senate Substitute Amendment 1 provides that the timing of the return of the security deposit depends on whether the tenant is evicted before or after the termination date of the lease. If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins. If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction.

SERVICE OF SUMMONS IN EVICTION ACTION [Section 22]

Under current law, under most circumstances, the summons in an eviction action must be personally served upon the defendant (the tenant), unless this cannot be achieved with “reasonable diligence.” In this case, the summons may be served by leaving a copy of the summons at the defendant’s usual place of abode in the presence of either: (1) a competent member of the family who is at least 14 years old; or (2) a competent adult who resides in the abode of the defendant. The person serving the summons must inform the family member or other person of the contents of the summons. [s. 801.11 (1) (b), Stats.]

Under Senate Bill 179, a court may, by rule, authorize the summons in an eviction to be served by regular mail.

Senate Substitute Amendment 1 provides that use of certified mail shall be required for all eviction cases for which service by mail is authorized by a court.

TIMING OF APPEARANCE AND TRIAL IN EVICTION ACTIONS [Sections 20, 23 and 24]

Under current law, the summons in an eviction action specifies the date that the defendant must appear in court. That appearance date must be set at not less than five days or more than 30 days after the summons is issued. [s. 799.05 (3) (b), Stats.] Also, the court generally sets the matter for a trial or hearing when the tenant makes the initial appearance. Current law does not specify the required timing of the trial or hearing. [s. 799.20 (4) and 799.206 (3), Stats.]

Senate Bill 179 changes the appearance date to not less than five days or more than 14 days after the summons is issued. The bill also specifies that the trial or hearing must be scheduled within 20 days after the date of appearance.

Senate Substitute Amendment 1 changes the appearance date to not less than five days or more than 25 days after the summons is issued. The substitute amendment also specifies that a trial or hearing on the issue of possession of the premises involved in the action must be held and completed within 30 days after the date of appearance, and provides that this provision applies only to residential tenancies.

WHO MAY APPEAR IN SMALL CLAIMS ACTIONS [Section 21]

Under current law, in any small claims action, a person may commence and prosecute or defend an action or proceeding himself or herself, or by an attorney or a full-time authorized employee of the person. [s. 799.06 (2), Stats.]

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent. This provision applies to all small claims actions, not only evictions.

Senate Substitute Amendment 1 clarifies that “member”means a member as defined in s. 183.0102 (15), Stats.:

“Member” means a person who has been admitted to membership in a limited liability company as provided in s. 183.0801 and who has not dissociated from the limited liability company.

DISPOSITION OF PROPERTY LEFT ON RENTAL PREMISES AFTER EVICTION [Sections 9, 10 and 29-46]

Under current law, if a tenant leaves property of value on the rental premises after he or she has been evicted, the property must be removed and stored. The evicted tenant is notified of the location of the property and provided with the receipt needed to obtain possession of the property. The evicted tenant is responsible for the costs of storage. In Milwaukee County, the sheriff must remove and store the property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property. If the landlord does not choose to remove and store the property, the sheriff must do so. [s. 799.45 (3), Stats.]

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise. If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement, or at any other time before the tenant is evicted from the premises. If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Senate Substitute Amendment 1 deletes the bill provision that authorizes a landlord to provide the notice described “at any time before the tenant is evicted,” and provides that any notice that is provided must be provided either when the tenant enters into or renews the rental agreement.

TOWING OF VEHICLES [Sections 5-8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued. If the vehicle is taken by a towing service to any location other than a public highway within one mile from the location in which the vehicle was improperly parked, the municipality or the traffic or police officer must, within 24 hours, provide the towing service with the name and last-known address of the registered owner and all lienholders of record. [s. 349.19 (3m) and (5) (c), Stats.]

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued. “Properly posted” means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately removed. The vehicle may be removed by a towing service at the request of the property owner or property owner’s agent, a traffic officer, or a parking enforcer. A parking enforcer is a person who enforces nonmoving traffic violations and who is employed by a municipality, a county, or the state. Also, the bill requires the Department of Transportation (DOT) to promulgate rules establishing reasonable charges for removal and storage of vehicles under the provisions described above.

Under Senate Substitute Amendment 1, if a property owner has a vehicle towed under the provisions described above, the towing service must notify a local law enforcement agency of the make, model, and license plate of the vehicle and the location to which the vehicle will be towed. The law enforcement agency is required to maintain a record of the notice as well as the identification of the towing service. Also, the substitute amendment prohibits a towing service from removing a vehicle that has been reported to a law enforcement agency as stolen.

In addition, under the substitute amendment, if requested by the municipality in which the vehicle was illegally parked, the towing service must charge the vehicle owner a service fee not to exceed $35. The towing service must then remit the service fee to the municipality according to procedures specified in the statute.

The substitute amendment provides that the rules promulgated by DOT must establish the form, and manner of display, of the notice necessary to qualify as “properly posted” under the provisions described above, as well as guidelines for towing services to notify law enforcement of the removal of a vehicle.

East Side Landlord "Think Small" Seminar Event on March 13th

Make plans to attend the fourth East Side Landlord Think Small event hosted by UWM!

This event is free and open to all interested landlords, with a special focus on Milwaukee's East Side.

This spring's event promises to be very engaging with featured presenter Attorney Tristan Pettit, who focuses his practice on representing landlords and management companies in landlord-tenant law matters.

Topics will include screening potential tenants and recent updates to landlord-tenant laws in Wisconsin.

As always, there will be networking time to share ideas with fellow attendees, Q&A time with the presenter, and light refreshments will be served.

Event Details

Date: Wednesday, March 13, 2013

Location: Chapman Hall on the UWM Campus, 2310 E Hartford Ave, Regents Room (2nd Floor)

Time: 4:30pm-6:00pm

Please RSVP to Heather Harbach at harbach@uwm.edu. Your registration helps us in our planning for this event. Please feel free to share this with other landlords that might find this session interesting! If you have further questions, please contact Heather Harbach, UWM Neighborhood Relations Liaison by e-mail at harbach@uwm.edu or by calling 414-229-4451.

Hope To See You There!

Accepting Past Due Rent After Termination of Tenancy: The New Law and Traps To Avoid

The Landlord's Omnibus Law (Act 143) introduced a new statutory section to Chapter 799 regarding situations when a landlord accepts past due rent from a tenant after the tenant's tenancy has been terminated. Newly created sec. 799.40(1m) states as follows:

If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may NOT be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant's tenancy.

On its face, this seems like a very helpful statute for landlords.

As a quick refresher, it is important to remember that a tenant's tenancy can be terminated in many ways such as after the "cure" period passes after being properly served with a 5 day notice, 14 days after being properly served with a 14 day notice, or when a lease term ends.

Prior to sec. 799.40(1m) being created, tenant's advocates argued -- and some courts held -- that if a landlord accepted past due rent from a tenant after the expiration of the tenant's tenancy that the landlord entered into a new agreement with the tenant for a month to month tenancy, thus waiving the landlord's right to proceed with an eviction action based on the prior notice.

I personally believe that such arguments are hogwash, but I will not digress, as that is not the purpose of this post.

Nonetheless, because this "waiver" argument was successfully raised in the past, I have always advised my clients to err on the side of caution and not accept past due rent after the tenant's tenancy was terminated. A landlord can refuse past due rent in one of two ways. First, a landlord can simply refuse the tendered past due rent from the tenant or return the rent payment to the tenant. This is always a difficult pill for landlords to swallow as they know that by returning the rent payment to the tenant that they will never see that money again.

Second, a landlord could hold the past due rent payment in escrow (not cashing the check or money order) and immediately write what I refer to as a "no waiver" letter and send to the tenant via certified and regular mail. A "no waiver" letter simply advises the tenant that their past due rent payment is not being accepted as their tenancy has already been terminated. The letter also should advise the tenant that it is the landlord's intent to pursue the eviction of the tenant and that the landlord will hold the past due rent in escrow pending a determination by the eviction court as to who legally has the right to possess the rental property. Finally, a "no waiver" letter should again remind the tenant that the payment they made is not being accepted.

Whenever I have drafted a "no waiver" letter for a client that has accepted past due rent from a tenant post tenancy, I never had a court hold that my landlord client waived his/her right to proceed with the eviction lawsuit. As a result, my clients have become big fans of the "no waiver" letter.

With the creation of sec. 799.40(1m), it would seem that there is no longer a need for a landlord to send a "no waiver" letter or to return a past due rent payment to a tenant . . . or is there. I would caution landlords against thinking that this newly created statute is the panacea that it appears to be.

Let me explain.

First, if you read the new law closely -- which I don't believe the drafters did or they would have remedied this oversight -- it states that an eviction based on a tenant's failure to pay rent, may not be dismissed solely because the landlord accepts past due rent after the termination of the tenant's tenancy.

There are many basis for terminating a tenant's tenancy besides just failure to pay rent. Other reasons may include the expiration of a lease term or a breach of the rental agreement for something other than non-payment of rent (i.e. criminal activity, damage to the property, loud music, illegal guests etc). The new law does not address what happens if a landlord accepts past due rent from a tenant and the tenant's tenancy was terminated for something other than failure to pay rent.

So literally speaking, a court could still dismiss an eviction if a landlord accepts past due rent from a tenant who's tenancy was terminated based on something other than failure to pay rent and not run afoul of the new law. Ouch! What about situations in which the tenant's tenancy was terminated for failure to pay rent AND other reasons? Does the new law apply those situations?

A second concern with the new law arose recently in Milwaukee County. Please note that this information was relayed to me by another person so I cannot 100% vouch that I have all the facts correct since I was not present when this happened. What I was told was that a landlord's eviction lawsuit, based upon a tenant's failure to pay rent, was dismissed because the landlord accepted past due rent from the tenant after the termination of the tenant's tenancy and failed to advise the tenant that it was the landlord's intent to still proceed with the eviction of the tenant. The court held that newly created sec. 799.40(1m) was not applicable in this situation because the landlord failed to advise the tenant of the fact that the landlord still intended to evict them.

Simply put, the new law is not as great as it appears --- so be cautious when relying on it. Know your judge. Know your court commissioner. Regardless of what the law says, if the court believes it says something else or is not applicable to your specific facts, you may not get the result that you were expecting.

So as a result of above, I am still advising my clients (despite sec. 799.40(1m) being the new law in town) that they should consider refusing to accept any past due rent from a tenant after the tenant's tenancy has been terminated. At the very least they should send a "no waiver" letter.

So proceed with caution.

Learn About Wisconsin's New Landlord-Tenant Law At AASEW's Next Meeting on June 18th.

You will not want to miss the Apartment Association of Southeastern Wisconsin's next membership meeting on June 18, 2012. The focus of the meeting will be on Wisconsin's new Landlord Omnibus law (Act 143).

The passage of this new law in late March made a lot of changes to landlord tenant law in Wisconsin - both residential and commercial. Landlords and management companies will need to make modifications to their rental documents and m,anagement procedures and practices in order to be in compliance.

We will have two landlord attorneys (myself and AASEW Attorney Heiner Giese) and a tenant attorney (Bob Andersen of Legal Action of Wisconsin) at the meeting to summarize the changes to you, give you our interpretation of the law and how it will play out in court, and provide you with reccomended best practices. Oh yeah . . . and we will also answer your questions.

This new law was rushed through the legislative process and as such it was poorly written, resulting in much confusion and a difference of opinion as to how it should be interpreted. The panel members will do their best to point out the areas of concern so that you can be better prepared in dealing with them.

Dont forget about the FREE food.

Here are the details:

LOCATION: Best Western Hotel located at 1005 S. Moorland Road in Brookfield WI

DATE: Monday, June 18, 2012

TIME: 7 pm

COST: Free to members of the AASEW; $25 to non-members -- Become a member that night and pay only $59 for the rest of the year (and avoid the $25 fee).

We hope to have a great turnout and a great discussion. I hope to see all of you there.

T

So Are Illegal Provisions In Wisconsin Residential Rental Agreements Severable Or Not?

SHORT ANSWER: Yes . . . and No.

LONG ANSWER: The newly passed law referred to as the Landlord's Omnibus Law (Act 143) adresses this issue but provides contradictory answers.

In newly created sec. 704.02 of the Wisconsin Statutes, the law states quite clearly that the provisions of a rental agreement or lease are severable. Specifically, it states that if any provision of a rental agreement is rendered void or unenforceable by reason of any statute, rule, regulation or judicial order, the invalidity or unenforceability of that provision does not affect the other provisions of the rental agreement that can be given effect without the legal provision.

So according to sec. 704.02, the answer to question posed in the title of this blog post would be a resounding "Yes."

BUT . .

In the very same law, the legislature also decided to create a new section 704.44 that copies a regulation from ATCP 134 entitled (Residential Rental Provisions), specifically ATCP 134.08 entitled "Prohibited Rental Agreement Provisions," which sets forth 7 things that cannot be included in a Wisconsin residential rental agreement - which I affectionately refer to as the 7 Deadly Sins.

The legislature also decided to add an 8th and 9th provision that cannot be included in residential rental agreements in Wisconsin. So now I have to refer to the outlawed provisions as "The 9 Deadly Sins" which just doesn't have the same ring to it. : (

The 9 provisions that if included in a residential rental agreement will render the agreement void are:

1. Any provision that allows a landlord to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services: (a) increase rent, (b) decrease services, (c) Bring an action for possession of the premises, (d) refuse to renew a rental agreement, (e) threaten to take any action under pars. (a) to (d). This is one of the new clauses added by the legislature is Act 143.

2. A provision that authorizes the eviction or exclusion of a tenant from the premises, other than by judicial procedures as provided under ch. 799.

3. A provision that provides for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise waives the landlord's obligation to mitigate damages as provided in s. 704.29.

4. A provision that requires payment by the tenant of attorney fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This subsection does not prevent a landlord or tenant from recovering costs or attorney's fees under a court order under ch. 799 or 814.

5. A provision that authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

6. A provision that states that the landlord is not liable for property damage or personal injury caused by negligent acts or omissions of the landlord. This subsection does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

7. A provision that imposes liability on a tenant for any of the following: (a) personal injury arising from causes clearly beyond the tenant's control, (b) property damage caused by natural disasters or by persons other than the tenant or the tenant's guests or invitees. This paragraph does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

8. A provision that waives any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition or to maintain the premises during the tenant's tenancy.

9. A provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime. This is the other new clause added by the legislature in Act 143.

So according to sec. 704.44, the answer to question posed in the title of this blog post would be "yes . . . unless it is one of the 9 deadly sins which if included in a Wisconsin residential rental agreement or lease would not be severable and in fact would render the entire agreement void."

Why can't the law be more simple and clear?

What Can A Landlord Do With A Tenant's Abandoned Personal Property Under Wisconsin's New Law?

With the signing into law of 2011 Wisconsin Act 143, a landlord's obligations with regard to a tenant's abandoned property has just gotten much easier.

Prior to Act 143 a landlord had three options with respect to a tenant's abandoned property. The landlord could:

1. Store the tenant's abandoned property on or off the premises and take a lien on the property for the actual and reasonable cost of removal and storage of the property, or

2. Dispose of the property if the tenant didn't reclaim it within 30 days of the landlord sending the tenant written notice of the abandoned property, or

3. Store the abandoned property without a lien and return it to the tenant.

Some landlords got themselves into trouble under the old law. Some would forget to send out the abandoned property notice to the tenant. Some would dispose of the abandoned property prior to 30 days after mailing the notice. Others would refuse to return the tenant's property unless the tenant paid up all past due rent (this is called distrain and was outlawed years ago). If the tenant's abandoned property had value sometimes these landlord would get sued. In an effort to educate landlords about this law I even drafted an Abandoned Property Notice form that was sold at Wisconsin Legal Blank noting the 3 options the landlord had.

Wisconsin's new law regarding tenant's abandoned property is more simple.

As long as a landlord provides written notice to the tenant -- at the time that the tenant enters into the rental agreement or renews the rental agreement -- that the landlord is NOT going to store any of the tenant's abandoned personal property, a landlord is allowed to immediately dispose of the abandoned property in any manner that the landlord, in his sole discretion, feels is appropriate.

There are two exceptions to the new law allowing a landlord to immediately dispose of a tenant's abandoned property.

First, in the case of prescription medication or prescription medical equipment, a landlord must hold such items for 7 days from the date of discovery to allow the tenant time to retrieve those items. If the tenant contacts the landlord within the 7 day period and requests the return of the medical items the landlord shall promptly return them to the tenant. After the 7 days have passed, the landlord is allowed to dispose of the medical items in any way that he determines to be appropriate.

Second, if the tenant has abandoned a titled vehicle or a mobile or manufactured home, the landlord must give the tenant -- and any secured party that the landlord has actual notice of -- written notice of the landlord's intent to dispose of the titled vehicle or mobile/manufactured home, personally or by regular or certified mail addressed to the tenant's last known address.

So for those of you that want to avail yourself of this streamlined process of the key is to provide the required "notice" language to the tenant. It makes the most since to simply include the required language in your rental agreement and any renewal agreement.

Below is the sample notice language that I added to the rental agreement that I draft for Wisconsin Legal Blank.

ABANDONED PROPERTY: Landlord will not store any items of personal property that tenant leaves behind when tenant vacates, except for prescription medication or prescription medical equipment, which will be held for seven (7) days from the date of discovery. If tenant abandons a manufactured or mobile home or a titled vehicle, landlord will give tenant and any other secured party that landlord is aware of, written notice of intent to dispose of the property by personal service, regular mail, or certified mail to tenant's last known address.

Please be aware that if you fail to provide the required notice to your tenant then you will be required to abide by the old law and follow one of the three options explained earlier in this post.

It is important to note however, that this new law does NOT relieve a landlord of his duty to evict a tenant through the judicial eviction process if the tenant has not vacated. A landlord should not just assume that the tenant's property is abandoned and the tenant has vacated the unit. A landlord still must make the very important (and sometimes costly) analysis on a case by case basis as to whether or not the tenant is still living in the unit or whether he has vacated and abandoned his property. This new law does not prevent a tenant from suing a landlord for double damages and attorney's fees for engaging in a self-help eviction. All this law does is make it simpler and easier to dispose of a tenant's abandoned property once the tenant has vacated the rental property.

Joint Legislative Council Gives Clarification To Wisconsin's New Landlord's Omnibus Law

You will recall from my earlier post that I had some concerns about the new Landlord's Omnibus Law (Act 134). One of my main concerns was that it was unclear from the wording of Act 143 whether or not a violation of chapter 704 would give rise to a claim by a tenant that would entitle the tenant to double damages and attorney's fees if successful.

The portion of Act 143 that concerned me was Section 36, which creates Wis. Stats. sec 704.95, and reads as follows:

704.95 Practices regulated by the department of agriculture, trade and consumer protection. Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty arising under this chatper.

My concern was that tenants might start filing suits against landlords alleging that they were entitled to double damages and attorny's fees if a landlord violated any portion of chapter 704. Could a landlord be on the hook for double damages and attorney's fees if he drafted a 5 day notice improperly or served the notice incorrectly?

Because of this concern, the Apartment Association of Southeastern Wisconsin (AASEW) attorney wrote to the State of Wisconsin's Joint Legislative Council which authored the earlier memo summarizing the new Act 143. Specifically the AASEW asked staff attorney Margit Kelley to clarify section 36 of her Act Memo dated March 26, 2012.

I have good news to report. Attorney Kelly in her letter to the AASEW's attorney, indicated that any violation of Chapter 704 does not automatically lead to a cause of action for double damages and attorney's fees.

Her verbatim response -- referring to section 36 (now Wis. Stats. section 704.95) - was as follows:

This means that DATCP may promulgate and enforce any administrative rules that are in line with ch. 704, Stats., including the provisions of the Act that affect that chapter, under DATCP's authority to regulate unfair methods of competition or unfair trade practices in s. 1002.0, Stats. Section 100.20(5), Stats., then, in turn allows an individual right of action for a violation of any rules promulgated under s. 100.20, Stats., and allows for recovery of costs, reasonable attorney's fees, and twice the amount of any pecuniary loss.

Translation: DATCP can create rules to add to ATCP 134 that are line with chapter 704, but a violation of ch. 704 alone does not give rise to a cause of action that entitles a tenant to double damages and attorney's fees, unless that section of the statute is also contained in ATCP 134.

So for instance, if a landlord was found to have violated Wis. Stats. section 704.28, entitled withholding from and return of security deposits, a tenant would be entitled to receive an award of double damages and attorney's fees because the language of sec. 704.28 is ALSO contained in ATCP 134 - specifically ATCP 134.06(2).

Along those same lines, if a landlord was found to have violated Wis. Stats., sec. 704.44, entitled residential rental agreement that contains certain provisions is void, a tenant would als be able to recover double damages and attorney's fees as the language of sec. 704.44 is ALSO contained in ATCP 134 - specifically ATCP 134.08.

As long as the courts are made aware of this, it now appears that landlords can breathe a sigh of relief as they will no longer have to worry about being ordered to pay double damages and attorney's fees to a tenant for improperly drafting or serving a 5 day notice, or any other portion of ch. 704 that is not also included in ATCP 134.

Now we just have to worry -- as we have always had to -- about having the court dismiss our evictions because of an improperly drafted or served 5 day notice : )

New Landlord Omnibus Law: Odds and Ends

There has been a lot of discussion about the new Landlord Tenant law in Wisconisn (2011 Wisconsin Act 143) since it became law on March 31, 2012. Some people's views seem similar to mine while others have interpreted the law completely differently than I do. Here is a link to one law firm's summary that in my opinion is completely off base, but then again they are Minnesota lawyers so we may have to give them a pass : ). But really guys, the new law did not create a new right for landlord's do deduct from a tenant's security deposit -- have you ever heard of ATCP 134.

I guess only time will tell how the law in interpreted by the courts in Wisconsin. One thing that I know for sure is that the politicians in Madison will be unable to correct any errors, or clarify and vagueness, in the new law until 2013 when they are back in session. So we are stuck with this for awhile and must make do.

The AASEW will be devoting it's June membership meeting (June 18, 2012 at 7 pm) to the new law and we hope to invite both landlord advocates and tenant advocates alike to present so that all sides can be presented. You will not want to miss this meeting. Come learn what the new law is and what you need to do in order to be in compliance. There will be no charge to AASEW members but we will be charging $25 for non-members to attend.

While I personally do not have anything new to add on the new law that I haven't said already in prior posts, I thought I would provide links to several items relevant to the new law that people might find interesting and useful.

Here is a copy of the newly enacted law - Act 143

Here is an overview of the new law by the Wisconsin Legislative Council

Here is a copy of the newly revised Chapter 704 (Landlord and Tenant) of the Wisconsin Stattutes which includes all of the changes/additions -- so I no longer have to carry around Act 143 : )

Here is an article that I recently wrote on the new law for the Wisconsin State Bar's Inside Track blog which includes several interesting comments on the new law by local lawyers.

Here's a blog article by my friend Tim Ballering about how the new law affects those landlords who are currently using a crime free lease addendum or something similar.

Thanks for reading

T

Newly revised Landlord-Tenant Law Forms Available at Wisconsin Legal Blank on April 2 and April 3, 2012.

Wisconsin's Landlord Omnibus Law (Act 143) went into effect today - April 1, 2012. As a result of the new law it was necessary for me to update many of the landlord-tenant law forms that are sold at Wisconisn Legal Blank.

As of Monday, April 2, 2012, the following revised forms will be available:

1. Residential Rental Agreement (Form #19)

- Added language required in order for landlord to be able to dispose of tenant's abandoned property immediately after they vacate.

- Added language about any illegal clause in the rental agreement being severable from the n9on-illegal clauses.

- Correction of some grammar and punctuation mistakes.

2. Nonstandard Rental Provisions (Form #984)

- Added langauge required in order for landlord to be able to dispose of tenant's abandoned property immediately after they vacate.

- Revised language as to when landlord must return security deposit or supply security deposit itemization letter when tenant vacates prior to end of lease term.

- General revisions to the language of each nonstandard rental provision to comply better with the holding in the Tschantz case.

3. Notice of Rent Increase in Month to Month Tenancies (Form #332)

- Added langauge required in order for landlord to be able to dispose of tenant's abandoned property immediately after they vacate.

4. Residential Lease Renewal or Notice To Vacate (Form #970)

- Added langauge required in order for landlord to be able to dispose of tenant's abandoned property immediately after they vacate.

5. Tenant Inspection Sheet (Check-In - Check-Out Form)

- Revised the title of this form to comply with the title used in the new law.

NOTE: It is now required that a landlord give this document to tenant's upon occupancy. So if you have not previously used this document you need to start doing so now.

As of Tuesday, April 3, 2012 the following revised forms will be available for purchase at Wisconsin Legal Blank

6. 5 Day Notice To Pay Rent or Vacate (Form #328)

- Changed the word "may" to "shall" when advising the tenant that landlord is entitled to holdover damages of, at a minimum, double the daily rent for the holdover period.

- Added a line for "Total Amount Due"

7. 5 Day Notice To Correct Breach or Vacate (Form #330)

- Changed the word "may" to "shall" when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

8. 5 Day Notice To Vacate - Nuisance (Form #329)

- Changed the word "may" to "shall" when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

9. 14 Day Notice To Vacate for Failure To Pay Rent (Form #768)

- Changed the word "may" to "shall" when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

- Added a line for "Total Amount Due"

10. 14 Day Notice To Vacate For Breach of Rental Agreement (Form #767)

- Changed the word "may" to "shall" when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

11. 28 Day Notice Terminating Tenancy (Form #327)

- Changed the word "may" to "shall" when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

12. 30 Day Notice To Correct Breach or Vacate (Form #325)

- Changed the word "may" to "shall" when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

Sometime in the near future the following revised form will be available at Wisconsin Legal Blank:

13. Rules & Regulations (Form #994)

- Will inlcude major revisions including language, organization and format.

- Will include revised language regarding a tenant's responsibility for the actions of their guests, invitees and family members that will comply with the law and not run afoul of "Deadly Sin #8" created by the new law.

2011 Wisconsin Act 143 (Landlord Omnibus Law) Also Applies To Commercial Landlord-Tenant Law

While this blog primarily focuses on residential landlord-tenant law, on occasion I also touch on issues applicable to commercial landlord-tenant law. This is one such instance.

Commercial landlord-tenant is more straightforward than residential in my opinion because commercial tenancies are less regulated than residential. Typically what a commercial landlord and tenant agreed to and placed into their lease agreement is what governs. The Wisconsin Administrative Code's ATCP 134 does not apply to commercial leases and most of Chapter 704 of the Wisconsin Statutes does not apply to commercial leases unless (1) the parties had no written lease, or (2) the lease was silent as to certain issues (see sec. 704.03 and 704.05 respectively).

Well, that has all changed now with the passage of 2011 Wisconsin Act 143 which was signed into law last week and will take effect on March 31, 2012.

While almost all of the attention paid to the new law surrounded its effects on residential landlord-tenant law, the law also impacts the commercial arena as well. I too was caught up in the effect Act 143 would have on residential landlords and missed the applicability of this new law to commercial landlords initially --- thanks to Bob Anderson of Legal Aid of Wisconsin for redirecting me : )

As I have mentioned in prior posts, this legislation was fast-tracked for some reason and rushing new laws through the legislative process is never a good thing. In fact it is a recipe for disaster.

It appears that the legislators did not realize that Senate Bill 466 -- the precursor to Act 143 -- was written in such a way as to encompass commercial landlord-tenant law. When it was brought to their attention, a quick amendment was made to exclude one portion of the new law (the section that makes a rental agreement void if it contains certain prohibited language) from the commercial arena, but apparently there was not enough time to deal with the other sections of the new law, which now will apply to both commercial and residential tenancies.

So what do we have?

The following provisions of Act 143 apply to both commercial landlord-tenant law as well as residential:

1. Moratorium on evictions

2. Severability of rental agreement provisions

3. Disposition of abandoned property

4. Requirement that landlords receive an award of holdover damages when appropriate

5. Acceptance of past due rents

6. Withholding from and return of security deposits

7. Making any violation of chapter 704 a possible unfair trade practice

If you are unfamiliar with the above sections of the new law you should read my prior post summarizing the new law.

Number 1-5 above actually benefit commercial landlords. However numbers 6 and 7 are problematic

By adding ATCP 134.06, which focuses on the withholding from and the return of security deposits, to chapter 704, the new law has now made these requirements applicable to commercial landlords as well. Prior to Act 143 being passed, there was no law addressing what a commercial landlord could withhold from a commercial tenant's security deposit, nor was there any law regarding when that security deposit (or an itemization as to how the security deposit was applied) had to be returned to the commercial tenant. Well thanks to Act 143, now there is.

Act 143 allows a commercial landlord to only make deductions for the following items from a commercial tenant's security deposit:

704.28 Withholding from and return of security deposits. (1) Standard withholding provisions. When a landlord returns a security deposit to a tenant after the tenant vacates the premises, the landlord may withhold from the full amount of the security deposit only amounts reasonably necessary to pay for any of the following:

(a) Except as provided in sub. (3), tenant damage, waste, or neglect of the premises.

(b) Unpaid rent for which the tenant is legally responsible, subject to s. 704.29.

(c) Payment that the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.

(d) Payment that the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant's nonpayment.

(e) Unpaid monthly municipal permit fees assessed against the tenant by a local unit of government under s. 66.0435 (3), to the extent that the landlord becomes liable for the tenant's nonpayment.

(f) Any other payment for a reason provided in a nonstandard rental provision document described in sub. (2).

So if a commercial landlord would now like to deduct anything other then the items listed in (a) - (e) above, then that landlord needs to start using a separate written document entitled "Nonstandard Rental Provisions" which must list the additional fees/costs that can be deducted from a commercial tenant's security deposit.

Additionally, Act 143 now requires a commercial landlord to either (1) return the tenant's security deposit to them, or (2) send them an itemization explaining how that security deposit was applied, within 21 days of the following:

(4) Timing for return. A landlord shall deliver or mail to a tenant the full amount of any security deposit paid by the tenant, less any amounts that may be withheld under subs. (1) and (2), within 21 days after any of the following:

(a) If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.

(b) If the tenant vacates the premises before the termination date of the rental agreement, the date on which the tenant's rental agreement terminates or, if the landlord rerents the premises before the tenant's rental agreement terminates, the date on which the new tenant's tenancy begins.

(c) If the tenant vacates the premises after the termination date of the rental agreement, the date on which the landlord learns that the tenant has vacated the premises.

(d) If the tenant is evicted, the date on which a writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.

Commercial landlords never had to worry about that 21 day time frame before -- now they do. Needless to say it is much more difficult and time consuming to do a walkthrough of a giant commercial space and itemize any damages or cleaning charges than it is for a 500 square foot residential rental unit. I'm not exactly sure how commercial landlords will be able to comply with this time frame, but they will need to find a way, or else they may have to to their tenant double damages and attorney's fees. Which leads me to the next concern . . .

Act 143 now makes any violation of chapter 704 a possible violation of unfair trade practices, which pursuant to sec. 100.20, Wis. Stats. allows a tenant to sue a landlord for double damages and attorney's fees. Prior to Act 143 a commercial landlord was not in this predicament because unfair trade practices were set forth in ATCP 134 which only applied to residential tenancies. But now that Act 143 incorporates some provisions of ATCP 134 into chapter 704 -- and chapter 704 applies to commercial landlord-tenant relations -- things are different.

Here is the language of the new law:

704.95 Practices regulated by the department of agriculture, trade and consumer protection. Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty under this chapter.

I guess the only positive is that the new law says "may constitute" instead of "shall constitute" however to a commercial landlord that never had to worry about anything they did constituting an unfair trade practice and subjecting themselves to being sued for double damages and attorney's fees, I'm sure this will be of little consolation.

So not only will Act 143 require commercial landlords to make some modifications to the language in their leases, but it will require them to completely change how they run their commercial proeprty management businesses starting March 31, 2012 ---- 2 DAYS FROM NOW!!!!!

Landlord's Omnibus Bill Signed Into Law - Read It Now

Governor Walker did sign the Landlord's Omnibus Bill into law.

I appreciate the effort of everyone that called the Governor's office asking him to veto the bill due to its deficiencies.

Here is a link to the new law. Much easier to read than having to go back and forth between the orginal bill, the Substitute bill and the two amendments.

The two main concerns that I have with the law and which caused me to ask that the bill be vetoed. They are section 35M and section 36.

The AASEW has already spoken with Sen. Lassee's office regarding these two major problems and I will keep you informed if and when anything is done about them.

And yes, I will be reviewing all of Wisconsin Legal Blank's forms in the near future and making the necessary revisions - if needed - and will let you know when they will be available : )

Upon Further Reflection, I Think The Governor Should Veto The Landlord's Omnibus Bill

I spent several hours yesterday reviewing and thinking about the new Landlord's Omnibus Bill that is to be signed into law today by Governor Walker at 4 pm.

I then spent hours of time trying to summarize the new law in yesterday's blog post in an easy to read and understand format.

Since publishing the blog post yesterday I have a few more thoughts and concerns:

1. AASEW Board member and friend Tim Ballering pointed out to me that he believes that the new law as written will allow for any violation of Chapter 704 to be considered an unfair trade practice, thus allowing a tenant to sue his/her landlord for double damages and attorney's fees.

Here is the language at issue:

704.95 Practices regulated by the department of agriculture, trade and consumer protection.

Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty arising under this chapter.

In my prior post I did anticipate that this would allow for tenant's and attorney's to make arguments that any violation of Chapter 704 was an unfair trade practice and that concerned me. But after speaking with Tim and thinking about this in more deeply, and re-reading the new law - I think this is a major concern. So is this law saying that if a landlord improperly drafts or serves a 5 day notice that s/he can be sued by the tenant for double damages and attorney's fees? YES.

I believe that this is such a major problem that I will be contacting Governor Walker's office today before 4 pm and asking him to veto the bill.

2. The addition of the 8th Deadly Sin really concerns me. My friend and past Wisconsin Apartment Association President John Fischer succinctly addresses the problem with in an email that he sent to many in the industry which is reproduced below:

When the Housing Task force was looking at blight, blight went beyond just condition of the property, but it also went to criminal activity.

There has been a proposal that various apartment associations have been working on that would make it easier to evict a tenant for criminal activity. There is a “Crime Free Lease” program that started out west that is very popular with landlords and law enforcement. A few communities have started working on this program here in Wisconsin, but the biggest hurdle is that the key tool of this program is a “Crime Free Lease Addendum”. The problem is that this addendum is unenforceable under Wisconsin’s current laws.

The new law that is being signed by Governor Walker at 4 PM this afternoon (I have been invited to this private signing, but I want nothing to do with this) makes a large number of massive changes to Wisconsin landlord-tenant law. One of the most significant appears to be an answer to our attempts to allow for eviction for criminal activity. The new law would basically render a lease void if the lease contained language that criminal activity on a property would be a breach of the lease.

So there you have it. My take on this new law -- as well as many others in the industry -- is this new law will cause more harm then good. This is what happens when you try to rush legislation -- people do not have time to consider all of the different angles -- so I am planning on contacting Governor Walker and ask him to veto SB 446. I would ask that you consider doing the same.

Thank you to tim Ballering and John Fischer for their thoughts, opinions, and guidance.

Landlord's Omnibus Bill -- with Amendments -- To Be Signed Into Law Today

One of the biggest pieces of pro-Landlord legislation in quite some time was passed by the Wisconsin Senate and adopted by the Assembly recently and will be signed into law by Governor Walker today. Unfortunately some of the pro-Landlord provisions were amended, diluted, or removed.

I am certainly not denouncing this new law. Many aspects of it will be very helpful to landlords. I just wish that more time had been allowed -- the bill was fast-tracked -- to allow for more discussion, thought and input and allowing for more notice. For instance, many of us in the rental industry were given one day advance notice before the public hearing on the bill which prevented many of us from attending.

I will attempt to summarize the new law in this post. As this new law plays out in the "real world" I am sure that I will be devoting additional blog posts to each provision in more detail.

The proposed effective date of this new law is March 31, 2012. So many of us will need to make some additions and/or modifications to our rental documents prior to that date.

Bankground of Legislation

The Landlord's mnibus bill (Senate Bill 466) was put on the "fast track" for reasons unknown to me. It was introduced on February 13, 2012 by Senator Lassee. A Substitute Amendement 1 was offered by Senator Lassee on February 29, 2012. Senator Waangard then offered the first amendment to the Substitute Amendment on March 6th which was passed March 13th. Senator Lassee then offered a second amendment to the Substitute Amendment on March 12th which was passed on March 13th. The bill will be signed into law by Governor Walker today - March 21st. Approximately one month from introduction to passage into law is very fast for the legislative process.

The key provisions of the new law are:

1. Moratorium on Evictions

This provision of the original bill remained untouched by the Substitute Amendment and the two amendments to the Substitute Amendment. The new law prohibits any municipality from imposing a moratorium on eviction actions. If a municipality has a current ordinance that contradicts this new law it cannnot be enforced.

We now must hope that individual counties, courts, and commissioners adhere to this law. While I don't anticipate courts ignoring this new law, I do anticipate court's continuing to use the "stay" provisions of sec. 799.44(3) to give tenants additional time to vacate during the holidays. So while municipalities will no longer be allowed to impose moratoriums, courts can still prevent evictions during holidays, creating the same result.

2. Severability of Rental Agreement Provisions

The original bill stated that any provision could be severed from the agreement. So if a landlord inadvertantly included a provision that was found to be improper or retaliatory in nature it could be removed and the remainder of the agreement could be enforced.

The Substitute Amendment diluted the above considerably by adding that if a rental agreement contains one of the "7 Deadly Sins" set forth in ATCP 134.08, the inclusion of any of those provisions cannot be removed and will render the entire rental agreement void and therefore unenforceable.

Amendment 1 to the Substitute Amendment went a step further and added an 8th illegal provision that if included in a rental agreement will cause the rental agreement to be void. The new illegal provision would include any language that allows a landlord to terminate a tenant's tenancy if a crime is committed in or on the rental property, even if the tenant couldn't reasonably have prevented the crime.

So in the end, the new law only allows the severability of certain rental provisions. If your rental agreement contains one of the 7 prohibited provisions set forth in ATCP 134.08 or the new prohibited provision created by this new law, your rental agreement will still be be void and unenforceable. Essentially, the new law takes the regulation ATCP 134.08 and codifies it into law.

More tragic is what the "8th Deady Sin" has most likely done to some other pro-Landlord legislation that I had hoped would become law -- the "Crime-Free Lease Addendum" bill. If you read my prior post on the Crime-Free Lease Addendum bill you will see that this 8th Deadly Sin language effectively decapitates this proposed bill. This is a major disappointment as I believe that had the Crime-Free Lease Addendum bill been passed it would have been the most significant piece of pro-Landlord legislation in years. Instead the "odds and ends" Landlord Omnibus bill seems to have killed it. Hopefully, I am wrong and it can be resurrected.

3. Dispostion of Tenant's Abandoned Property

Once again, the original version of this bill was awesome. It stated that any personal property left behind by a tenant could be considered abandoned and disposed of immediately in the landlord's discretion.

The Substitute Amendment modified the original bill by adding that any medical prescriptions and/or medical equipment left behind by the tenant must be held by the Landlord for 7 days. The Substitute Amendment also added that written notice must be sent to the tenant (and any secured party) prior to disposing of any titled vehicles or mobile homes deemed abandoned. I could live with both of those modifications.

However, the amendments to the Substitute Amendment added language that will require landlords to jump through a few hoops. The new law requires that a landlord provide written notice to the tenant at the time of entering into the rental agreement, and at each renewal of the rental agreement, informing the tenant that the landlord will not hold any property left by the tenant and that such property will be deemed abandoned and will be disposed of. Failure to provide this written notice to the tenant requires a landlord hold the abandoned property fpr a period of time as set forth in sec. 704.05 (5), Wis. Stats.

Essentially landlords will now be required to add a new language to their rental agreements -- and any renewal agreements -- advising tenants that any property left behind will be considered abandoned and can be disposed of. Looks like there will be a revised Rental Agreement being sold at Wisconsin Legal Blank Co., in the near future : )

4. Information Check-In Form

This is one of the provisions of the original bill that I didn't care for. A landlord will now be required to provide a standardized information check in sheet to each tenant that contains an itemized description of the premises. The Substitute Amendment merely added that this form must be given to the tenant at the time of occupancy rather than at the time of signing of the rental agreement.

As I understand this law, this does not just mean that the landlord can give his new tenant a blank Information Check-In form to fill in -- which many landlords are already doing. Rather it means that the landlord must completely and thoroughly fill out the Information Check-In form to adequately describe the condition of the rental unit and give it to the tenant. So if you are not thorough in your description of the renal unit this document could be used against you by the tenant, after the tenancy has ended. This new provision of the law will clearly cause additional work for landlords and I fear could harm the less detail-oriented landlords out there when pursuing a tenant for damages to the unit or withholding portions of the tenant's security deposit for damages.

5. Holdover Damages Are Mandated

The new law requires that landlords be awarded holdover damages. If a tenant stays in the rental unit beyond his tenancy, the landlord is now legally entitled to -- at a minimum -- double the daily rent for the time period after the tenancy ended (i.e. the notice expired) until the tenant actually vacates the unit.

This is a positive change because current law (sec. 704.27) only states that a landlord "may" be awarded holdover damages -- and some courts would not award landlords these damages. The new law says that a court "shall" award a landlord holdover damages, at a minimum.

6. Withholding From A Tenant's Security Deposit

The new law has merely codified the provision of ATCP 134.06(3), which states that a landlord is allowed to withhold the following from a tenant's security deposit: (a) Tenant damage, waste or neglect of the premises, (b) Unpaid rent for which the tenant is legally responsible, (c) Payment which the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent, (d) Payment which the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant's nonpayment, (e) Unpaid mobile home parking fees which a local unit of government has assessed against the tenant to the extent that the landlord becomes liable for the tenant's nonpayment, (f) Other reasons authorized in the Nonstandard Rental Provisions.

The new law also adopts the portions of ATCP 134.06 which state that a landlord cannot withhold from a tenant's security deposit for normal "wear and tear" or other losses which the tenant cannot reasonably be held responsible.

7. Timing For Return of Security Deposit

The original bill indicated that in situations where the tenant broke the lease prior to the end of the term that the landlord need not return the security deposit or provide an accounting of how the security deposit was applied until 21 days after the lease term ended or within 21 days of a new tenant taking occupancy. This langauge is a substantial improvement over current law as it allows a landlord to hold the security deposit until he is able to determine if any future rent will owed by the breaching tenant if the landlord cannot locate a new tenant to re-rent the property to. I explain this issue in more detail in my earlier post on the Landlord's Omnibus Bill.

The Substitute Amendment waters this down a bit. The new law will now codifies ATCP 134.06(2)(a) and states that a landlord shall deliver or mail to a tenant the security deposit or itemization of how the security deposit was applied within 21 days after any of the following: (a) if the tenant vacates on the last day of the rental agreement, the date on which the rental agreement terminates, (b) if the tenant vacates before the end of the rental agreement, then the date on which the rental agreement terminates or, if the unit is re-rented before the end of the rental agreement, then the date on which the new tenancy begins, (c) if the tenant vacates after the last day of the rental agreement, the date on which the landlord learns that the tenant vacated, (d) if the tenant was evicted, the date on which the writ was executed or the date that the landlord learns that the tenant vacated.

So the new law kept the good part of the original bill but by codifying ATCP 134.06(2)(a) the landlord must return a tenant's security deposit or send out the itemization of how the security deposit was applied earlier than when the original bill stated in situations where the tenant was evicted.

8. Disclosure of Code Violations

The original bill required that a landlord disclose to any prospective tenant any uncorrected building code or housing code violations prior to the signing of a rental agreement, accepting of a security deposit or accepting of earnest money.

The second Amendment to the Substitute Amendment modified the original bill and as a result the new law requires a landlord to disclose to a new tenant any uncorrected building code or housing code violations if the landlord has actual knowledge of the violation (rather than if the landlord had received notice of the violation from a housing code enforcement agency as under the original bill).

Specifically the new law requires the disclosure to the new tenant if the following four conditions are met: (a) landlord has actual knowledge of the violation, (b) the violation affects the rental unit or a common area, (c) the violation presents a significant threat to the tenant's health or safety, (d) the violation has not been corrected.

9. Request for Repairs

The orginal bill required that a tenant first notify a landlord in writing of any repair or maintenance issue, and then allow adequate time for the landlord to address the issue, before reporting the problem to the building inspector, elected official, or housing code enforement agency. The Substitute Amendment removed this provision in its entirety so the law has not changed -- tenants are allowed to call whomever they want to complain about maintenance issues without any requirement that they first notify the landlord of the problem.

10. Acceptance of Past Due Rent

The new law states that if a landlord has filed an eviction against a tenant and the landlord accepts past due rent from the tenant during the course of the eviction, that the court cannot dismiss the eviction solely based on the landlord's acceptance of past due rent from the tenant.

I really like this provision of the new law becasue currently, many tenants and their attorneys argue that if an eviction is pending and a landlord accepts past due rent from a tenant, that the landlord's acceptance of that rent has effectively "waived" the landlord's right to proceed with the eviction.

11. Tenant Remedies

The Substitute Amendment added that any violation of chapter 704, including the provisions of the new bill, may constitute an unfair trade practice which may allow the tenant to sue a landlord for double damages and attorney's fees.

I don't like this new provision of the law for one simple reason. I believe it will be used by tenants and tenant's attorneys to seek double damages and attorney's fees whenever a landlord allegedly violates any provision of chapter 704, whether the violation is a true unfair trade practice violation or not. Only the provisions of ATCP 134, which will be codified in ch. 704 under this new law, deal with unfair trade practices. Nonetheless, I anticipate that we will see some very creative arguments by tenant's and their attorneys as to why a tenant should be awarded double damages and attorney's fees for violations of chapter 704 that are not unfair trade practice violations.

Now we will have to wait and see how this new law "plays out" in the real world of landlording. Some of the key things everyone will need to address before March 31, 2012, when the law takes effect are:

1. Make sure any rental agreement you enter into with a tenant after March 31, 2012, does not contain any language that would be in violation of the "8th Deadly Sin" which essentially means eliminating or modifying any language similar to that found in the Crime-Free Lease Addendum.

2. Make sure to add language in your rental agreement, and any renewal documents, stating that any property left behind by the tenant will be considered to be abandoned and will be disposed of by the landlord without any further notice to tenant (except for medical prescriptions and medical devices, mobile homes and titled vehicles).

3. Rename your Check-In / Check Out Sheet as "Information Check-In Sheet" and insure that you provide any new tenants with a completed copy of the form thoroughly documenting the condition of the rental unit.

4. Disclose any code violations that you have actual knowledge of that may present a significant threat to the tenant's health or safety before entering into a rental agreement or accepting a security deposit or earnest money.

Good Luck Everyone

ADDITION: 3/21/12 - Make sure you read my 3/21/12 post about why I now think this new law will actually hurt landlords more than help them

ADDED 4/11/12 -- Here is the link to the new law.

ADDED 4/11/12 - Here is a link to an article I recently authored on the new law.

ADDED 4/11/12 - Here is a link to the newly revised Wisconsin Statutes Chapter 704 re: Landlord and Tenant

New Landlords' Omnibus Bill Being Debated In Madison

On February 13, 2012 2011 Senate Bill 466 (more commonly referred to as the Landlords' Omnibus Bill) was introduced by Senator Lasee and referred to the Committee on Insurance and Housing. A companion bill was also introduced in the Assembly - 2011 AB 561. A public hearing on the above bills was held on February 15, 2012.

The Landlords' Omnibus Bill addresses numerous issues affecting landlord-tenant relations in Wisconsin and if passed will greatly assist landlords.

The bill proposes the following:

1. Eliminates the ability of a municipality from enacting or enforcing any ordinance that imposes a moratorium on a landlord from evicting a residential or commercial tenant.

Such moratoriums have occurred in the past effectively preventing landlords from evicting tenants during the holiday season for instance.

2. Allows for the severability of all rental agreement provisions and prevents an entire rental agreement from being declared unenforceable against a tenant -- or void -- because it contains an unenforceable or void provision.

If passed this will effectively render the Wisconsin Supreme Court's decision in Bairl v. McTaggart moot.

3. Allows a landlord to immediately dispose of any property abandoned by a departed tenant.

Currently according to Wis. Stats. sec. 704.05(5) a landlord can choose one of three options with regard to a tenant's abandoned property, but all three involve a landlord jumping through hoops and/or holding the abandoned property for a period of time.

4. Requires a landlord to disclose to prospective tenants if there are any uncorrected building code violations in the rental unit.

5. Requires that a landlord provide a residential tenant with a standardized check-in sheet describing the condition of the property at the time of the tenant's check-in.

6. Requires that a landlord shall (i.e. MUST) recover damages for a tenant's failure to vacate after his tenancy has been terminated. The amount of damages shall be, at a minimum, double the rental value of the unit for the time that the tenant held over, but can be more.

Currently Wis. Stats. sec. 704.27 only says that a landlord "may" recover "holdover" damages.

7. Creates a new statutory section that allows a landlord to withhold the following from a tenant's security deposit: (a) tenant damage, waste or neglect, (b) unpaid rent, (c) utilities, (d) any other items listed in a Nonstandard Rental Provision document.

Currently the above is only contained in the Wisconsin Administrative Code ATCP 134.06(3) -- which is a regulation and not law.

8. Provides that if a tenant vacates before the end of his lease that a landlord will not have to return the tenant's security deposit or send the teanant a security deposit itemization letter until 21 days after the lease ends or 21 days after the unit is re-rented.

Currently per ATCP 134.06(2) the landlord must return the security deposit or security deposit itemization letter within 21 days of the tenant "surrendering" the rental unit. As this regulation is currently written there are some instances where a security deposit must be returned to a tenant that has broken a lease even though the tenant will be legally responsible for future rent but is not responsible for any rent within the 21 days after the tenant surrenders.

9. Requires a tenant to notify the landlord in writing of any repair or maintenance problem before reporting the problem to a building inspector, elected public official or code enforcement agency.

Currently some tenants are calling DNS or other building code enforcement agencies alleging that they told their landlord of a maintenance or health and safety emergency in their rental unit and that the landlord is not making the necessary repairs - when this is not the case . Tenants may do this in order to "get a landlord in trouble" with an enforcement agency or to avoid paying rent. As a result, some landlords are hearing about the maintenance issue for the first time when contacted by the building code agency. This provision will hopefully eliminate such "he said - she said."

10. If a landlord has filed an eviction action against a tenant for non payment of rent and the landlord accepts past due rent from the tenant after the eviction lawsuit was filed, the eviction may not be dismissed by the court solely because of the acceptance of rent.

Currently a landlord is in a catch-22 position. If a landlord accepts payment of late rent (either partial past due rent or the full amount after the "cure" period has ended) the landlord risks the court deciding that the landlord "waived" his right to proceed with the eviction. But if the landlord turns away past due rent offerred by the tenant after the "cure" period has passed, the landlord is essentially losing out on money owed to him that he will never see again.

Please be sure and call your state senator and state assembly person and urge them to vote in favor of the Landlord's Omnibus Bill.