Who CARES? - Status on the Coronavirus Aid, Relief, and Economic Security (CARES) Act

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

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law on March 27, 2020, bringing many new wrinkles to the residential real estate rental practice. While several of its provisions have expired, specifically those regarding eviction moratoria, one particular provision lingers without an apparent sunset. Section 4024(c)(1) of the CARES Act requires that “[t]he lessor of a covered dwelling unit may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate.” A recent interim rule promulgated by HUD, effective as of November 8, 2021, reiterates the 30-day notice requirement, and adds additional language necessary for notices terminating tenancy for many covered entities.

This raises two obvious questions: is my rental unit a covered dwelling unit; and what happens if I don’t comply with the CARES Act – eviction is a state court remedy, after all.

Whether or not a property is a covered dwelling unit is an easy question to answer since the CARES Act (and the subsequent interim rule) defines “covered dwelling unit”. While the definition is cumbersome, it essentially boils down to whether there’s government funding or backing of the unit.

The penalties for non-compliance with the CARES Act are less easily defined. There’s no penalty provision in the Act itself. First, though, any eviction filed without providing the necessary time frame would likely be dismissed, as the notice terminating tenancy would be found to be invalid. Additionally, the Bureau of Consumer Financial Protection (CFPB) is tasked with enforcing the CARES Act with respect to evictions. In July, 2021, the CFPB issued an Enforcement Compliance Bulletin and Policy Guidance, stating “Bureau staff will be monitoring and investigating eviction practices to ensure that they are complying with the law. Evicting tenants in violation of the CDC Order, State, or local moratoria, or evicting or threatening to evict them without apprising them of their legal rights under such moratoria, may violate prohibitions against deceptive and unfair practices under the Fair Debt Collection Practices Act and the Federal Trade Commission Act.” So, at a minimum, a faulty notice could be grounds for a dismissal of the eviction, and, at worst, investigation and sanction by the CFBP.

CDC Extends Eviction Moratorium Until June 30, 2021

On Monday, May 30, 2021, the CDC Issued an Order extending the Eviction Moratorium until at least June 30, 2021.

The "guts" of the Order remain the same from the November 2020 Order which I have previously discussed in an earlier blog post.

Some of the modifications that were made in this most recent Order include the following:

1. Moratorium is extended until June 30, 2021

2. A signed Declaration by a tenant submitted under a previous order remains valid notwithstanding the extension and modification of the Order.  Covered persons do not need to submit a new declaration under this most recent Order.

3. While the Order does not prohibit evictions for engaging in criminal activity while on the leased premises, covered persons may not be evicted on the sole basis that they are alleged to have committed the crime of trespass (or similar state-law offense) where the underlying activity is a covered person remaining in a residential property despite nonpayment of rent.

4. Individuals who are confirmed to have, who have been exposed to, or who might have COVID-19 and take reasonable precautions to not spread the disease should not be evicted on grounds that they pose a health or safety threat to other residents.

As usual some of the language of the Order addressing the modifications is not as clear as everyone would like.  It will take time for this to flesh out.  The Courts and those of us that spend time in Court are learning new things every day.

While the extension of the Order may not be good news to all housing providers, it was certainly anticipated, since so much money has been set aside for emergency rental assistance.  Back in December of 2020 an additional $25 billion was set aside for emergency rental assistance in the U.S. for the payment of rent and rental arrears.  An additional $21.55 Billion in emergency rental assistance was provided under the American Rescue Plan in 2021 for renters and housing providers in the U.S.  

Milwaukee County and Waukesha County have already received the emergency rental assistance from the first $25 Billion and it is being disbursed by Community Advocates and other agencies.  Also, Landlords are allowed to complete the application for their residents for this new round of money, although I have heard that this is not always being followed.  So if your resident owes you past rent and/or is unable to pay their current rent make sure that you are reaching out for assistance.  Some of the agencies that my clients have had the most success with have been Mediate Milwaukee and Community Advocates.

With so much money in the pipeline and the third round not yet even available, I foresee the moratorium continuing throughout all of 2021.
 

THE MONEY IS FINALLY HERE . . . Learn How To Access Wisconsin's Emergency Rent Assistance Payments

As I am sure many of you have heard, back in December the Federal government agreed to set aside $25 Billion dollars for Rent Assistance as a result of Covid.  Of that large amount, Wisconsin was allocated a total of $386,777,591.50 to be divvied up as follows:

1. Brown County - $7,907,949.30

2. Dane County - $8,579, 734.30

3. City of Madison - $7,762,609.60

4. Milwaukee County - $10,629,017.80 -- (to be distributed by Community Advocates)

5. City of Milwaukee - $17,641,552.70 -- (to be distributed by the Social Development Commission (SDC))

6. Waukesha County - $12,082,683.60 --  (to be distributed by Community Advocates)

7. State of Wisconsin - $322,174,044.20

Both tenants and landlords have been waiting for months for this money to arrive and it is FINALLY here.

One of the nice thing about the Wisconsin Emergency Rental Assistance Housing Payments (often referred to as ERAP or WERAP) is that the Landlord is allowed to complete the application on behalf of the Tenant.  This was a very important change in case you have a Tenant that is qualified to receive the money but has refused in the past to apply for the emergency rent payments. 

Landlords can begin applying through Community Advocates on behalf of their tenants for both Milwaukee County and Waukesha County now.

It appears that there is still some logistics for the City of Milwaukee and the SDC to work out so they are not yet taking applications.

If your rentals are located outside of the city and counties of Milwaukee or Waukesha you will want to take a look at the WISCAP WERA website for more information and assistance. 

A Nicely Done News Report Explaining How the Eviction Moratorium is Negatively Affecting Both Tenants AND Landlords

I was interviewed by Reporter Caroline Reinwald of ch. 12 WISN yesterday on the CDC eviction moratorium and how it is negatively affecting both Tenants AND Landlords.  I thought Caroline did a very nice job of explaining the pains felt by both sides and was happy to be interviewed for the report.

The Landlords' Side of the Story

Have you noticed that landlords tend to be portrayed as evil and uncaring?  I'm reading lots of so-called news articles (that really are nothing but opinion pieces) with such sentiments.  The media also tend to treat all landlords as large companies making lots of money at the expense of tenants.  Did you know that the vast majority of landlords throughout the U.S. are small "mom & pop" landlords that own rental property in addition to working a full-time job?

Our own Milwaukee Journal-Sentinel likes to push this false narrative.  Despite myself and other landlords having spent literally hours on the phone with, writing emails to, or even meeting personally with J-S reporters, the paper still opts to ignore the facts and imparted knowledge provided, in order to continue the false narrative that landlords are evil. 

One individual, Nick Sakalis, has taken the lead in trying to tell the landlords' side of the story.  Below are several of his videos.  Please take the time to watch them, and share them if you are so inclined.  They are well-made and refreshingly don't just tell one side of the story.   They also explain an important point that the J-S tends to overlook, the fact that if landlords fail, tenants will also fail, as will the towns and cities that contain rental housing.  It seems short-sighted to continue to produce stories pushing the false narrative rather then trying to educate its readers about the long-term effects of continuing eviction moratoria without providing funding to keep both tenants and landlords afloat. 

Mr. Sakalis has also created a YouTube channel dedicated to collecting all landlord-related videos in one place. He has already assembled a fair amount of content and is adding to it everyday.  I will continue to post Nick's videos to my blog as they are created.

Perhaps one day the J-S will realize that landlords and tenants are not opposing forces and should not be trying to vilify the other. Rather landlords and tenants are two sides of the same coin.  What helps landlords also helps tenants and what helps tenants will also help landlords and by extension rental housing, municipalities, stores etc etc.  Is the Milwaukee Journal Sentinel listening . . .  probably not.

GUEST POST: CDC Attorneys State That Landlords Can Challenge Tenants' Declarations In State Eviction Court

This is guest post written by Tim Ballering (JustALandlord.com)

The CDC attorneys have stated in federal court that owners are permitted to file evictions as well as challenge the veracity of a tenant's CDC Declaration. The CDC argues that owners can even obtain an eviction judgment, as long as the physical move is stayed until the end of the moratorium.

Most importantly, the Order does not prevent a landlord from filing an eviction action in state court. First, the Order expressly permits eviction for various reasons other than nonpayment of rent. See 85 Fed. Reg. at 55294 (property damage, criminal activity, etc.). Second, nowhere does the Order prohibit a landlord from attempting to demonstrate that a tenant has wrongfully claimed its protections. And third, even where a tenant is entitled to its protections, the Order does not bar a landlord from commencing a state court eviction proceeding, provided that that actual eviction does not occur while the Order remains in place. See id. at 55292 (“the order prevents these persons from being evicted or removed from where they are living through December 31, 2020”); id. at 55293 (defining “evict” as “to remove or cause the removal of”).

https://nclalegal.org/wp-content/uploads/2020/10/CDC-Response.pdf at page 42

The CDC attorneys further state that owners are permitted to sue tenants for nonpayment in civil court. This creates an interesting situation where an owner who is not receiving rent can garnish wages. 

Where tenants fail to pay rent, nothing in the Order precludes landlords from filing a breach of contract action seeking payment. Plaintiffs may prefer a different remedy, but they plainly have access to a judicial forum.

id. at page 43

This critical interpretation of the CDC Order is from its legal counsel, the US Dept. of Justice, in a brief in filed in the Brown v. Azar case, the federal court case in Atlanta seeking to overturn the CDC Order.

This is very different than what owners are being told by tenants' attorneys as well as local courts.

Personally I am not opposed to the moratorium if the tenant truthfully fills out the CDC Declaration, which includes an actual substantial loss of income, partial payments to the best of the tenant's ability and having applied for all applicable government assistance.

The concern is when tenants are using the CDC Order as a “Get Out Of Rent Free” card and submitting knowingly false Declarations. For example we received our first Declaration last week. The tenant listed SSI as her sole source of income on her application, so she did not suffer a substantial loss of income. She also has failed to apply for either the Community Advocates or the WRAP funding.

CDC and HHS Issue Order for Temporary Halt In Residential Evictions to Stop The Spread of COVID-19

On September 1, 2020, the Centers for Disease Control and Prevention (CDC) and Department of Health and Human Services (HHS) published an Agency Order temporarily stopping all residential evictions in the United States, in order to prevent the spread of COVID-19.

What Are the Effective Dates of this Order?

This order became effective immediately upon publication (presumed to be Sept 4, 2020) and continues through December 31, 2020.

What Is Prohibited under this Order?

Under this Order, a landlord, owner of a residential property, or other person with a legal right to pursue an eviction is prohibited from evicting any “covered person” from any residential property in any jurisdiction.

Who Is a “Covered Person” Under this Order?

A “covered person” is defined as any tenant, lessee, or resident of a residential property who provides to their landlord a written declaration under penalty of perjury that says:

1. The person has used best efforts to obtain all available government assistance for rent or housing;

2. The person expects to earn less than $99,000 in annual income for calendar year 2020 (or no more than $198,000 if filing a joint income tax return) or was not required to report any income in 2019 to the IRS or received a stimulus check pursuant to section 2201 of the CARES Act;

3. The person is unable to pay the full rent due to substantial loss of household income, loss of compensable hours of work or wages, lay-off or extraordinary out-of-pocket medical expenses;

4. The person is using best efforts to make timely partial payments that are as close to the full payment as the person’s circumstances may permit, taking into account other non-discretionary expenses;

5. Eviction would likely render the person homeless or force the person to move into and live in close quarters because the person has no other available housing options.

The Order defines “evict” and “eviction” to mean any action by a landlord to remove or cause the removal of a covered person from a residential property. This language is broad enough to cover the act of serving a notice terminating tenancy, the filing of an eviction, and the filing of a previously obtained writ of restitution with the Sheriff. 

Can A Landlord Still Pursue a Non-Rent Eviction During the Moratorium?

Nothing in the Order however prevents a landlord from pursuing an eviction based on a tenant that:

1. Engages in criminal activity;

2. Threatens the health or safety of other tenants;

3. Damages or poses an immediate and significant risk of damage to the property;

4. Violates any applicable building code, health ordinance, or similar regulation relating to health and safety; or

5. Violates any other contractual obligation, other than the timely payment of rent, including the non-payment of fees, penalties or interest.

What Are the Penalties for a Violation of this Order?

Any person that violates this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of not more than $250,000 if the violation results in a death.

Any organization that violates this Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death.

The U.S. Department of Justice may prosecute a violation of this Order seeking criminal penalties.

What about a More Restrictive State or Local Moratorium?

The Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides for the same or greater level of public-health protection then this Order. The Order also states that it does not preclude State, local, territorial, and tribal authorities from imposing additional requirement that provide greater public–health protection and which are more restrictive that the requirements of this Order.

Are Tenants Still Responsible for Paying Their Rent During the Moratorium?

The Order states that this temporary eviction moratorium does not prevent any individuals of any obligation to pay rent or comply with any other obligations that a person may have under a tenancy, lease or similar contract. Nothing is the Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent. What the order does is prevent the landlord from removing the tenant for failure to pay rent until 2021.

Some Final Thoughts . . .

Arguably this latest moratorium protects tenants, but does it? Tenants are still required to pay the rent during the moratorium as well as late fees. If they don’t pay rent however all that happens is that the tenant cannot be evicted . . . for now. They can be evicted in 2021. Does anyone really think that a tenant negatively impacted by COVID-19 that cannot pay their rent today will have the money available to pay 5 month’s rent and late fees come January 1, 2021? How does this help tenants? It doesn’t. It is nothing more than the proverbial punting of the ball down the field. Everyone loses when a tenant is evicted.

Tenants are protected when their rent is paid and their landlord receives the rent payment so it can continue to pay its mortgage, taxes, utilities, and wages to its employees who maintain the rental property, spend money in local stores to help maintain the rental property. If the overarching goal is to actually help tenants then thought needs to be given to funding “portable” housing vouchers so that tenants that have lost their jobs due to COVID-19, will still be able to pay their rent and will continue to have a place to live in 2021. Delaying a tenant’s eviction for 5 months and having a landlord fail in the interim does not help anyone and it certainly does not stop a housing crisis.

The only way that a housing crisis can be avoided is if both tenants and landlords succeed. Trying to solve one end of the equation by kicking the ball down the field while at the same time completely ignoring the other end of the equation is short-sighted and honestly negligent

Current State of Affidavits of Non-Compliance in Milwaukee County

Drafted by Atty. Jennifer M. Hayden of Petrie + Pettit S.C.

As you may be aware, Milwaukee County Local Rule 3.85 requires that if the tenant did not sign the Stipulation in person in front of the court, or where the tenant made the first three payments due under the Stipulation and then defaulted, the Landlord must provide the tenant with notice before the court will issue a writ of restitution.

Pre-Covid-19, Landlords would send a letter by Certified and First Class Mail to the Tenant informing the tenant of the overdue payment, by amount and due date and stating in plain language that the Landlord intends to ask the court to issue a writ of restitution on a specified date at a specified time. After seven days, the Landlord would file an Affidavit of Non-Compliance along with proof of mailing by certified mail and an affidavit certifying the notice was also served by first Class Mail. The Landlord would appear in court at the date and time specified in the notice sent to the Tenant, meet with a Commissioner and obtain the Authorization for a Writ of Restitution and Judgment for Eviction. If the tenant appeared, he or she could contest the claims in the Affidavit of Non-Compliance with the Commissioner.

If the Judgement was granted, the Landlord would obtain a paper copy of the Writ Authorization from the Commissioner, purchase a Writ of Restitution from the Clerk’s office for $5.00, fill out the writ and file both documents along with the Sheriff’s Department fee, a letter of Authority for a Moving Company and the Billing Information “Yellow Card,” if necessary, with the Sheriff’s Department in the Safety Building.

With all appearances currently being by Zoom, these procedures have to be amended.

Affidavits of Non-Compliance where Notice is not required to the Defendant under Local Rule

In scenarios where notice to the tenant would not be required under Local Rule, the Landlord can sign and upload the Affidavit of Non-Compliance along with an Affidavit that the CARES Act does not apply. The court will review the Affidavit and can issue an Authorization of Writ. The Landlord can access and print the Authorization, fill out a Writ of Restitution (which are still available in person from the Clerk’s office between the hours of 12: 00 p.m. and 2:00 p.m., Monday through Friday, for a $5.00 fee) and mail both documents, along with payment, a copy of the letter of Authority for a Moving Company and the Billing Information “Yellow Card,” if necessary, to the Sheriff’s Department for processing. The Sheriff’s Department is not currently accepting in-person filing of writs.

Affidavits of Non-Compliance where Notice IS required to be given to the Defendant under Local Rule

In situations where the Landlord IS required to give the Tenant Notice under Local Rule, the Landlord can complete the Affidavit of Non-Compliance and electronically file it putting in the Notes Section that Notice must be given to the tenant. The Landlord should also file an Affidavit that the CARES Act does not apply. The Clerk’s office will then put the matter on Commissioner Flynn’s calendar at 8:30 the second Monday after the Affidavit is filed and will send a Notice of Hearing and Zoom instructions to all parties. The Landlord will appear as per the Notice. After review, Commissioner Flynn will either dismiss the matter or grant the Judgment for Eviction and issue a Writ Authorization. If Commissioner Flynn grants the judgment, she will upload the Writ Authorization. The Landlord can access and print the Authorization, fill out a Writ of Restitution (which are available in person from the Clerk’s office between the hours of 12: 00 p.m. and 2:00 p.m., Monday through Friday, for a $5.00 fee) and mail both documents, along with payment, a copy of the letter of Authority for a Moving Company and the Billing Information “Yellow Card,” if necessary, to the Sheriff’s Department for processing. The Sheriff’s Department is not currently accepting in-person filing of writs.

Staying of Writs

In either scenario, Commissioners in Milwaukee County have been issuing but staying writs for up to two weeks due to the public health crisis, so be prepared for additional delays even if judgment is granted.

Wisconsin's Eviction Moratorium Is Over. Now What?

Atty. Jennifer Hayden and I presented a webinar for the Wisconsin Realtor's Association (WRA) yesterday, May 28, 202, entitled "Wisconsin's Eviction Moratorium is Over. Now What?"  In the webinar Jen and I provide an update on the following:

• Wisconsin rental Assistance Program (WRAP)
• DATCP's emergency order on charging late fees and penalties
• The CARES Act
• Best Practices that Landlord and property managers may want to consider implementing
• Eviction Court Challenges

If you are interested in viewing the 30 minute webinar in can be  found on youtube.

When Are Landlords Able to Serve Notices Again and What is the Status of The Other COVID-19 Emergency Orders?

UPDATED 5-27-20

Trying to keep track and make sense of the numerous state, county, and municipal orders not to mention the federal laws related to Coivd-19 is difficult at best. So, I thought I would put together this update so that everyone is on the same page.1

• Governor Evers’ Emergency Order # 15 – Temporary Ban on Notices, Evictions and the filing of Writs – ends on Tuesday, May 26, 2020. To be safe I am encouraging clients to wait until Wednesday, May 27th to serve any notices, file any eviction actions, or file any writs with the Sheriff's Department. After waiting all of this time, plus the additional wait time for the case to get heard in court, why risk the chance that a Court might dismiss your eviction stating that you served the notice too early or filed the eviction too early. You have had to be patient this long, what is one more day for peace of mind. So on May 27th, you are able to serve failure to pay rent notices, non-rent breach notices, and send notices of non-renewal.

• BUT, if your rental property is covered by the CARES Act, which includes those properties with mortgages backed by Freddie Mac or Fannie Mae, or properties that receive Low Income Housing Tax Credits (LIHTC), accept Section 8 vouchers (only applies to the unit with the voucher not the entire building), or are site-based Sec 8 housing and various other programs, you are prohibited from serving a notice for failure to pay rent or filing an eviction for failure to pay rent until after July 25th. It is important to note that the CARES Act does not prohibit the service of notices for non-rent breaches or filing an eviction based on same.

• Per DATCP’s Order 20-R-02, Landlord is prohibited from charging any late fees or late rent penalties for any missed rent payments during the current Public Health Emergency, which started on March 12th (Executive Order #72), and runs for an additional 90 days after the end of the Public Health Emergency. So we will not know when this prohibition for charging late fees will end until we learn when the Public Health Emergency has ended.

W.R.A.P it up with a Bow? The Wisconsin Rental Assistance Program

By Attorney Jennifer Hayden of Petrie + Pettit S.C.

The Division of Energy, Housing, and Community Resources has partnered with the Wisconsin Community Action Program Association to provide “direct assistance” for struggling Wisconsin tenants by way of 25 million dollars allocated to agencies across the state. Tenants who meet certain income and need eligibility can apply for the funds through the Wisconsin Community Action Program Association which will then issue payment directly to the Landlord on behalf of the Tenant.  Since this program will require the tenant to apply directly for the monies, if you have not already done so, you should open up a dialogue with your tenants about this assistance so they can educate themselves.

In general, adult residents of Wisconsin with a household income at or below 80% of the county median income in the month of or prior to the application date may be eligible to receive up to $3,000 per individual which can be used toward rent owed or security deposits.
Funding will be available on a first-come, first served basis, and the Program will expire once CARES Act funding is exhausted.

Additional information on this Program, including complete eligibility criteria, application documentation requirements, and the distribution process for the rental assistance should be available shortly, along with information on a proposed “Second Initiative.” Initial information can be found here.

The Wisconsin Supreme Court Struck Down Governor Evers’ Stay-At-Home Order, So I Can Now Serve Notices Terminating Tenancy and File Evictions, Right?

Written by Attorney Jennifer Hayden of Petrie + Pettit

The Wisconsin Supreme Court struck down Governor Evers’ Stay-At-Home Order, so I can send notices terminating tenancy and file evictions, right?

Ahhh, no. The Wisconsin Supreme Court’s decision is narrowly tailored to state that it is finding Emergency Order 28 to be unenforceable and focused much of its ire on “the assertion of power by one unelected official, Andrea Palm.” Conversely, it is Governor Evers’ Emergency Order 15 that restricts the ability of a Landlord to issue a notice, bring an action or file a writ unless the Landlord completes an affidavit stating its related to an imminent risk of serious physical harm to another person and that order has not been ruled on by the Wisconsin Supreme Court (You can read the decision here in its full glory: 

But I Can Issue a Notice Terminating Tenancy for the Non-Payment of Rent on May 27, 2020, right?

Ummm, maybe. If your property is impacted by the CARES Act you are prohibited from issuing a notice terminating tenancy for the nonpayment of rent until July 25, 2020 and the notice you use at that point for the non-payment of rent has to be a thirty day notice and can’t include any charges for late fees (see our prior blog article on this topic).

We also still have the DATCP rule prohibiting Landlords from charging late fees, so any notice should not include the non-payment of late fees (see our prior blog article on the DATCP rule).

Nothing at the state or federal level has prohibited you from sending tenants who aren’t paying rent a letter or invoice reminding the tenants of the balance due as long as it doesn’t threaten to terminate the tenancy.

Finally, although not specifically related to the ability to issue notices and file evictions, keep in mind that the Stay at Home Order is still in play for the City of Milwaukee (see our prior article on the City of Milwaukee STAY AT Home Order).  That order in Section 4, Prohibited Activities states: “A landlord or rental property manager shall not enter a leased residential rental premises unless a maintenance emergency exists.”

Is That All the Bad News if I Have a Tenant Who Hasn’t Paid Rent for Months?

Ah… It might not be. There are rumors of an effort to extend the prohibitions on issuing notices terminating tenancy or filing an eviction for the non-payment of rent in Wisconsin. We have not heard anything definitive on that potential. Additionally, there is the HEROES Act which in its current form, seeks to, among other things, prohibit the filing of eviction actions based on the non-payment of rent for a year for essentially all dwellings. Here is a link to the Act, but, full disclosure, it is 1815 pages long.

WEBINAR: Landlording In The Time of Coronavirus

I hope that everyone is staying healthy, safe and sane.  

Attorney Jennifer Hayden (also of Petrie + Pettit) and I presented a 1 hour webinar for the Apartment Association of Southeastern Wisconsin (AASEW) on April 29, 2020 entitled "Landlording In The Time of Coronavirus."  In the webinar, Jen and I spoke about the various Emergency Orders and Laws that impact Landlords, some "best practices" related to issues caused by the Cornavirus/COVID-19, and what you can expect when eviction court is up an running.

Here is a link to the webinar if you are interested in viewing.

Thanks

DATCP's Temporary Emergency Rule Prohibiting the Charging of Late Fees Is In Effect

UPDATED on July 9, 2020

On, April 25, 2020, with little publicity, the Department of Agriculture, Trade and Consumer Protection (DATCP) published a temporary emergency rule (20-R-02) modifying Wis. Admin Code ch ATCP 134 (“Residential Rental Practices”) creating a temporary prohibition on the charging of late fees or late rent penalties for any missed rent payments during the COVID-19 health emergency and during the 90 days following the health care emergency or until August 27, 2020 unless the public health emergency is extended.  This rule only applies to residential housing.

The emergency rule will expire at the earliest of:
1. 150 days after the emergency rule is published,
2. 90 days after the expiration of the public health emergency (which is currently set to expire on May 26, 2020) , or
3. 90 days after the recission of the proclamation of the public health emergency.

UPDATE July 9, 2020

On June 25, 2020, the Joint Committee for Review of Administrative Rules has determined that DATCP did not have the authority to make the above Emergency Rule prohibiting late fees.  Not only did the Committee strike down the Emergency Order, but legislators then drafted legislation the prohibits DATCP from creating such a rule in the future.  

No information was provided as to whether or not the Committee's ruling applies retroactively but going forward landlords are again able to charge late fees. 

CARES Act Eviction Restrictions Apply to More Landlords Than You Think

The following is a guest post written by Atty. Jennifer Hayden of Petrie + Pettit S.C. 

We’ve previously discussed the impact of the recent extension of the Stay at Home Order by Governor Evers.  However, under Section 4024 of the CARES Act, Landlords who have residential tenants in a “covered dwelling” that participates in a “covered housing program” (as defined in section 41411(a) of the Violence Against Women Act of 1994 or the rural housing voucher program under section 542 of the Housing Act of 1949 or has a “Federally backed mortgage loan” or a “Federally backed multifamily mortgage loan”, have additional prohibitions on what they may or may not do with regard to terminating a tenancy and filing an eviction against their tenant until July 25, 2020 (120 days after the enactment date of March 27, 2020). 

Just a warning, this post is a little dry and technical but the law is dry and technical so there is not a lot to work with. ; ).  Try not to fall asleep as this is important.

What is the eviction moratorium under the CARES Act?

It consists of two key provisions which contain two sub provisions.

The first provisions is

1. Through July 25, 2020, a landlord of a “covered dwelling” may NOTdo any of the following:

(a) make, or cause to be made, any filing with the court of jurisdiction to initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges; or

          Translation:   You can’t file an eviction based on non-payment of rent or other amounts owed to you by the tenant.

(b) charge fees, penalties, or other charges to the tenant related to such nonpayment of rent.

          Translation:   You can’t charge a late fee if your tenant doesn't pay rent.

The second provision is 

2. Additionally, a landlord of a “covered dwelling” also may not:

(a) require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; or

          Translation:   You must give a tenant at least a 30 day notice to vacate.

(b) issue a notice to vacate for the non-payment of rent until after the expiration of the 120 day period.

          Translation:   You can’t serve a notice to vacate for failure to pay rent until after July 25, 2020.

So what does all of this mean exactly? 

It means that a landlord of a “covered dwelling” cannot serve a notice to vacate for the failure to pay rent until after July 25, 2020 and even if a landlord waits to serve a notice to vacate for failure to pay rent after July 25, 2020, that notice must give the tenant 30 days.

What is the end result of all of this?

A landlord of a “covered dwelling” is prohibited from filing an eviction against a residential tenant until after August 27, 2020. 

Interestingly, the Act doesn’t mention anything about notices or evictions for non-rent breaches.  Thus, it appears to leave open the possibility that a landlord can serve a 30 Day Notice for a non-rent breach during the 120 Day Period. 

Do these restrictions apply to my rental property?

These restrictions apply to landlords that own federal housing rental programs covered by VAWA (Violence against Women Act), which includes:

• Public housing,

• Section 8 Housing Choice Voucher program,

• Section 8 project-based housing,

• Section 202 housing for the elderly,

• Section 811 housing for people with disabilities,

• Section 236 multifamily rental housing,

• Section 221(d)(3) Below Market Interest Rate (BMIR) housing,

• HOME,

• Housing Opportunities for Persons with AIDS (HOPWA),

• McKinney-Vento Act homelessness programs,

• Section 515 Rural Rental Housing,

• Sections 514 and 516 Farm Labor Housing,

• Section 533 Housing Preservation Grants,

• Section 538 multifamily rental housing,

• Low-Income Housing Tax Credit.

What does a “Federally backed mortgage loan” or a “Federally backed multifamily loan” mean?

The language used to define a “Federally backed mortgage loan” or a “Federally backed multifamily mortgage loan” encompasses more properties than anticipated.  

The CARES Act defines a “federally backed mortgage loan” as any loan which:

1. is secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from 1 to 4 families, including any such secured loan, the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and
2. is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.
   

A “Federally backed multi-family mortgage loan” is similarly defined to include any loan other than temporary financing such as a construction loan which:

1. is secured by a first or subordinate lien on residential multifamily real property designed principally for the occupancy of 5 or more families, including any such secured loan, the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and
2. is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.

So once Governor Evers’ Order prohibiting the service of notices terminating tenancy and the filing of evictions has passed on May 27, 2020, landlords that own a “covered dwelling” will still have their hands tied behind their back by the CARES Act, until July 25, 2020.

It is important to be aware that both Legal Action and Legal Aid have been requesting that Commissioners and Judges confirm that a landlord (plaintiff) is not prohibited from filing an eviction based on the CARES Act.  So expect challenges on this issue and bring proof showing that your rental is not a “covered dwelling” and that you do not have a “Federally backed mortgage loan” or “Federally Backed multifamily loan” on the rental property.

It is also important to remember that like its Wisconsin Safer at Home counterpart, the CARES Act does still requires the tenant to pay rent during the 120 period.  But if they don’t, a landlord cannot do anything about it until July 26, 2020.

An Update on Milwaukee County Small Claims Court

I know that everyone is anxious to learn when and how Milwaukee County will be proceeding with evictions in the future.  I have attended several virtual Small Claims Bench/Bar Committee Meetings, which include attorneys representing both landlords and tenants as well as Milwaukee County Judges and Court Commissioners, and those issues are being discussed.

Please understand that the courts do not have all of the answers at this point.  This is a work in process.  Just as we all are, the courts are working their way through this pandemic and it’s fallout.  As more information and direction is given by the Court, I will update everyone.  For now this is what we know . . .

• We know that Governor Evers has extended the Safer at Home Order until May 26, 2020 at 8 am.
• We know the Wisconsin Supreme Court has suspended all in-person court appearance through April 30, 2020.
• We know that the Chief Judge of Milwaukee County has currently suspended all small claims court appearances through May 15, 2020.
• We know that the amount of people that go through Milwaukee County’s Small Claims Court is greater than any other court in the state.
• We know that Milwaukee County Small Claims Court has never been set up to handle virtual court appearances in the past.
• We know that we are dealing with a pandemic that has created a lot of uncertainty.
• We know that everything is fluid and could change multiple times in the future.

Milwaukee County is taking the Small Claims Court backlog very seriously.  After dealing with the speedy trial demands in criminal court, the Small Claims backlog is paramount.  The Court realizes that even once the Orders are lifted, that with the amount of people that file through Small Claims Court every day, will not allow for the necessary social distancing that will be required, until a vaccine is created.  As such, there is just no way that Milwaukee County Small Claims Court can handle hundreds of people appearing in person in Room 400 every day.  That would just be a “hot spot” in the making.

As such, Milwaukee County Small Claims Court will be re-configuring Room 400 to allow for virtual court appearances via Zoom.  The court envisions the need to conduct virtual court appearances into the summer and fall of 2020.

Since Small Claims Court has never held virtual court appearances before, it will be necessary for it to start slowly until it works everything out and is able to implement processes and procedures.  Initially Small Claims Court will focus on all pending evidentiary hearing involving collection (non-eviction matters) in which both the creditor and debtor are represented by attorneys.  This will allow the Court to have the respective attorneys assist in preparing witnesses to testify via Zoom and to generally move the process along. The current plan is to be able to hear these cases prior to May 18^th. The hearings will be held in the same date order in which they were scheduled.  The new hearing will occur at the same time of day as they were originally scheduled.

The goal is to formalize the process for conducting evidentiary hearing in collection cases and then to add more and more types of cases and different types of court appearances.  The Court is considering handling all initial appearances via paper – meaning that the defendant will need to file a written Answer.  This is still being debated.

Small Claims Court intends to staff the Court with 4 court commissioners in order to tackle the backlog of cases.  The Court will be in charge of sending out Zoom invites to the represented parties.  It will be up to the attorneys representing the creditors and debtors to adequately instruct their witnesses on how to testify using Zoom.  It is anticipated that testimony via telephone will continue to be permitted. The Court Commissioners will also have the ability to adjourn any pending evidentiary hearings if necessary due to technological problems or otherwise.  All of these cases will be live-streamed on YouTube to comply with the right to public access to our court system. Once the case is concluded the court proceeding will be removed from YouTube.

The Court is still discussing how it will handle collection cases, and eviction cases, in which either one or both of the parties are not represented by counsel.  As you can imagine, it will be extremely difficult to send Zoom invites to pro se litigants that may not even have access to WI-FI or know what Zoom is.  This is most likely why the Court is starting the process with collection cases involving attorneys on both sides.

In the interim, Small Claims Court will continue to review emergency eviction filings that involve the imminent threat of serious physical harm to another person.  To date, Judge Colon indicated that he has heard 3-4 of those cases and has granted 1 eviction judgement and issued a writ.

I realize that most of you reading this post are involved in the Landlord-Tenant law world and that you are wondering how the Court will handle eviction cases and when they will start hearing those cases.  We all want to know the answers to those questions.  The court is very aware that evictions are important and need to be heard.  As I have stated before, this is a work in progress and I will update you as the Court provides us with more information.

A Deep Dive Into Governor Evers’ Emergency Order #15 – Temporary Ban on Evictions and Foreclosures

My office has received a lot of questions about Governor Evers’ Emergency Order regarding a temporary ban on evictions and foreclosures in the last few days. There appears to be a lot of misunderstanding or confusion over the Order so I will attempt to clarify the Order and answer many of the questions that I have received.

First off, it is important to keep in mind that all we know for certain is what the Order says.  If the Order doesn’t state something or doesn’t even address the topic then we do not know for certain.  Everything else is just educated guessing, wishful thinking, or mere argument and speculation.  For ease of reference, I will refer to each of the eleven (11) numbered paragraphs of the Order separately. 

Evers’ Order went into effect on March 27, 2020 and continues for 60 days.

1. Landlords are prohibited from serving any notice terminating tenancy for failure to pay rent.

This one is pretty straightforward.  During the 60 day period of this Order, landlords cannot serve a tenant with a 5 day notice or a 14 day notice for failure to pay rent. 

This section of the Order does not address whether or not a landlord can talk with a tenant about not paying their rent, send the tenant a rent invoice, or a letter advising the tenant that rent was not paid.  I am not suggesting that Landlords do any of the above, I am merely stating what the Order says and does not say, as those are the questions that I am being asked.  So nothing in the Order prohibits a landlord from communicating with a tenant about unpaid rent.  The Order does prohibit a Landlord from sending a tenant a notice for failure to pay rent.

2. Landlords are prohibited from serving any notice terminating tenancy unless the notice is accompanied by an affidavit attesting to the reasonable belief, and the basis thereof, that a failure to commence eviction proceedings will result in an imminent threat of serious physical harm to another person.

Translated this means that a landlord cannot serve a 5 day notice or 14 day notice for a non-rent (or behavioral) breach unless the breaching behavior is so severe that to not move forward with evicting the tenant will result in an imminent threat of serious physical harm to another person. 

The Order does not provide any examples of what situations would fall under this narrow exception.  I assume that a landlord could move forward with serving a non-rent notice on a tenant if there was physical abuse of a tenant by another tenant.  I suppose that a Landlord could also serve a non-rent notice on a tenant if the tenant physically injured or threatened to injure a property manager, leasing agent or maintenance person.

Please keep in mind that a court will scrutinize any notice served and filed under this narrow exception on a case by case basis.  Due to the severity of the pandemic and the overwhelming need to self-isolate, I believe that a Court will require that a pretty high hurdle be met before they will allow such an eviction to move forward.  For instance, does the use of the word “imminent” in the Order preclude a Landlord from serving a non-rent notice on a tenant if the abuser has alreadycaused physical harm to another?  Or will it be assumed that if harm has already occurred that it will continue to occur will meet this narrow exception? We just don’t know the answer to these questions; each judge will be analyzing each specific scenario separately and on a case by case basis.

It is important to remember that if a landlord has a situation where it believes there is an imminent threat of serious physical harm to another person, that the landlord must be willing to put the basis for its belief into a personal affidavit which must be signed before a notary.  

It appears that this section of the Order would also preclude a Landlord from serving a 28 day notice for any reason or no reason at all on a month-to-month tenant because such a notice would not be based on a reasonable belief of imminent threat of serious physical harm.

The question that comes up quite frequently and has landlords uncertain is whether or not a landlord can send a tenant under a lease for a specific term, a notice of non-renewal if the lease ends within the 60 day period of the Order.  A notice of non-renewal does not really terminate a tenancy (the fact that the initial lease period ends is what terminates the tenancy) however, if the point of the Governor’s Order is to keep tenants in their apartments and not have them out looking for a new place to live, then serving a notice of non-renewal when the end of the term is within the 60 day period, would be contrary to that.  Again, I do not know this for certain.  What about if the lease ends after the 60 day period?  Can a landlord serve a notice of non-renewal during the Order if it won’t apply until after the Order expires?  Probably so, but we don’t know for sure.  Please read section 5 below for further analysis of this issue.  

3. Landlords are prohibited from commencing a civil action of eviction unless the following conditions are met:

a. The eviction action is not based on a failure to pay rent, and

b. The judicial action seeking eviction is accompanied by an affidavit attesting that the eviction is not based on a failure to pay rent and to a reasonable belief, and the basis thereof, that a failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person.

This section of the Order is pretty much the same as #1 and #2 above except it addresses the filing of an eviction action rather than the service of a notice terminating tenancy.  The same issues and concerns raised above would apply under this section as well.

A major concern that is not addressed in the Order, is what happens to the pending eviction lawsuits that were filed and served prior to the commencement of the Governor’s Order?  This is not addressed so we don’t know for certain. It is however important to remember that prior to the Governor’s Order, the both the Wisconsin Supreme Court and the Chief Judge of various counties throughout Wisconsin, also issued temporary emergency orders and that those orders will need to be reviewed also.  To my knowledge these other Orders do not specifically answer that questions either.  We will have to wait and see what happens with the pending evictions.  Most likely they will be adjourned but what about the service of process requirements that landlords must comply with?

4. Landlords may not deliver a writ of restitution to the sheriff, nor may the sheriff act on eviction orders unless the following conditions are met:

a. The eviction was not based on a failure to pay rent, and

b. The writ or restitution is accompanies by an affidavit attesting that the eviction is not based on a failure to pay rent and to a reasonable belief, and the basis thereof, that a failure to process with the eviction will result in an imminent threat of serious physical harm to another person.

The section of the Governor’s Order prevents a landlord that has already been granted a judgment of eviction and issued a writ from filing that writ with the sheriff for execution, unless it falls under the same narrow exception mentioned earlier - a reasonable belief that failure to proceed would result in the imminent threat of serious physical harm to another person.

A common question of many landlords that I have spoken with is what will happen to the writs that were issued by the court but not yet filed with the sheriff, or the writs that were filed with the sheriff but not yet executed, since a writ is supposed to be valid for 30 days from the date that it was issued.  Are the non-filed writs and the non-executed writs all going to become void during the 60 days of the Governor’s Order?  Can all writs that fall into this category be “stayed” until after the Order expires?  It doesn’t seem equitable to require a landlord to file a new eviction and obtain a new judgment of eviction and a new writ, when all of those matters occurred prior to the Governor’s Order. 

5. Nothing in the above order shall be construed to affect the operation of Wis. Stat.  § 704.25.

Wis. Stat. §704.25 is entitled “Effect of holding over after expiration of lease; removal of tenant.”  This is the section of the Governor’s Order that I feel is the most unclear.  One interpretation of this section is that a landlord can still serve a notice of non-renewal and/or file an eviction against a tenant that has held over beyond the term of their tenancy.  Another interpretation could be that any tenant that becomes a holdover during the 60 day Order will still be responsible for any damages incurred by the landlord as a result of their holding over?  If I had to guess I would say, the latter interpretation is probably the view that a court would take.  But again, we don’t know for certain.

Wis. Stat. § 704.25(3)  specifically addresses what the terms of the tenancy are when a tenant holds over and basically states that if the holdover tenant offers rent, and the landlord accepts the rent, that a month to month tenancy is created under the same terms and conditions as the original lease.

It is my opinion that the above paragraph is what the Order is referring to when it states that nothing shall be construed to affect the operation of Wis. Stat. 704.25.  But we do not know for sure. 

6. Remote Notarization is permissible for purposes of this Order

This section is reasonable in light of the goal to self-isolate.

7. Mortgagees are prohibited from requesting from commencing a civil action to foreclose upon real estate.

8. Mortgagees are prohibited from requesting or scheduling a sheriff’s sale of the mortgaged premises.

9. Sheriffs may not conduct sheriff’s sales of mortgaged premises nor ma sheriffs act on any order of foreclosure or execute any writ of assistance related to foreclosure.

I am pleased that Governor Evers addressed one major concern of landlords in these three sections of the Order – what happens to the landlord that cannot meet its financial obligations because it is not receiving rent payment from its tenants as a result of COVID-19?  While it is true that it will be extremely difficult for tenants to pay their rent if they have lost their job or had their hours cut, a large majority of landlords rely on their tenants’ rent payments in order to pay their mortgage, utilities, taxes, insurance etc.

This section of the Order prevents the landlord’s lender from foreclosing against the landlord‘s rental property during this 60 day period. Hopefully we will see an additional order or possibly legislation giving such a reprieve for the payment of taxes, insurance, utilities etc.  We all have serious concerns about whether or not we, our families, and our businesses will survive this pandemic.  Without further assistance the smaller landlords out there, which includes the majority of landlords, will not survive.

10. Nothing in this Order shall be construed to affect the ability to commence a civil action to foreclose upon real estate under Section 846.102 of the Wisconsin Statutes.

I have not received any questions related to this section of the Order and don’t feel that comment is necessary.

11. No provision in this Order shall be construed as relieving an individual of their obligations to pay rent, make mortgage payments, or any other obligations an individual may have under a tenancy or mortgage.

This section is key and unfortunately it is being overlooked by many.  Tenants are still responsible for paying their rent.  If they don’t pay their rent and if they don’t otherwise enter into some form a rent deferment agreement with their landlord, the tenant can still be evicted after the Order expires for not paying rent during the Order.  The same applies to landlords.  You still need to pay any missed mortgage payments at some time or else suffer the consequences. 

I have no idea how long this pandemic will last, but it is pretty clear that it will continue for the near future, and in the meantime many will be unable to meet their financial obligations.  The effect on the housing market and affordable housing, which was already in short supply, is going to be catastrophic and difficult to even think about.

Since it will be a while before the courts are handling evictions again, I hope that everyone reading this, both landlords and tenants, realize that it would be in everyone’s best interests to work together and come up with solutions that can keep everyone afloat until such time that we can once again stand closer than 6 feet.

Stay safe, stay healthy, and look out for one another.

T

3/27/20 - Further Update On Court Closures and Related Issues Pertaining to COVID-19

Things continue to be very fluid when it comes to eviction court and what the various counties are doing, or not doing, in lieu of the COVID-19 pandemic and the Governor’s Safer at Home Order.

As you are aware from my earlier posts, Milwaukee County courts suspended in=person court proceedings through April 3, 2020 as a pandemic precaution.

On March 22, 2020, the Wisconsin Supreme Court issued two Administrative Orders, one which postponed all civil and criminal jury trials through May 22, 2020, and the second which suspended most in-person proceedings and provided that, subject to certain exceptions, all court proceedings in Wisconsin Courts are to be conducted via remote audio-visual technology if practicable.

In response to the Supreme Court’s Orders, the Chief Judge in Milwaukee County on March 23, 2020, issued some additional guidelines (The Second Emergency and Temporary Guidelines) and extended its Emergency and Temporary Orders until May 15, 2020. The Chief Judge wrote that the guidelines that are in place in the Milwaukee County court system are to “ensure the continuous performance of the court’s essential functions and operations, yet seek to mitigate the exposure, and further spread of the virus.  The guidelines also “incorporate use of teleconferencing to minimize contact, when appropriate; follow social distancing practices; and temporarily suspend some non-essential court functions.”

With regard to small claims cases (which includes evictions) the Milwaukee County Second Temporary and Emergency Order states as follows:

1. All small claims appearances are suspended through May 15, 2020, or until further Order of the Court.  Any such matters currently set for a date on or prior to May 15, 202, will be rescheduled by the Clerk via written notice.
2. No one may appear in person for hearing between now and May 15, 2020, or until further Order of the Court, unless it is an emergency matters, without the express advance approval of the Judge or Court Officer assigned to such matter; it is expected that this will be limited to such things as Requests for Sta of Writs of Restitution.  Any emergency matters may be conducted via telephone or video, at the discretion of the Judge hearing such matter.

The Supreme Court Orders and Milwaukee County’s guidelines leave a lot of unanswered questions, understandably so, since we are all learning how to handle such an unprecedented event as COVID-19.

A Small Claims Bench/Bar Meeting has been scheduled for March 27, 2020 with the small claims presiding Judge Pedro Colon and attorneys representing both landlords and tenants.  Many interesting questions will be raised with regard to the Service of Process statute for evictions and what effect, if any, the court’s adjournments, will have on the pending evictions.  There will also be discussion about how the court will deal with the backlog of cases once the court resumes in-person hearing.

As I learn more, I will continue to update you.

Thanks

T

Governor Evers Prohibits Notices Terminating Tenancy and Eviction Actions for Sixty Days Unless There is Imminent Threat of Serious Physical Harm

Governor Evers issued an Order today prohibiting notices terminating tenancy, eviction actions and the filing of writs unless based on the imminent threat of serious physical harm to another person for the next sixty (60) days.

In relevant part, the Order states as follows:

1. Landlords are prohibited from serving any notice terminating a tenancy for failure to pay rent.

2. Landlords are prohibited from serving any notice terminating a tenancy unless the notice is accompanied by an affidavit attesting to the reasonable belief that a failure to commence eviction proceedings will result in an imminent threat of serious physical harm to another person.

3. Landlords are prohibited from filing an eviction unless the following conditions are met:

     a. The eviction action is not based on a failure to pay rent, and

     b. The judicial action seeking eviction is accompanied by an affidavit attesting that the eviction is not based on a failure to pay rent and to a reasonable belief that a failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person.

4. Landlords may not deliver a writ of restitution to the Sheriff, nor may the Sheriff act on eviction orders unless the following conditions are met:

     a. The eviction order was not based on a failure to pay rent, and

     b.The Writ of Restitution is accompanied by an affidavit attesting that the eviction is not based on a failure to pay rent and to a reasonable belief  that a failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person.

The Order does specify that it does not relieve a tenant of the obligation to pay rent or any other obligation “an individual may have under a tenancy.”

The Order also prohibits your lender from filing a foreclosure action against you, if you happen to be having difficulty meeting your obligations since you may not be receiving rent from your tenants, for 60 days.

We will continue to keep you apprised as this situation develops.

Hang in there.

GUEST POST: City of Milwaukee “Stay at Home” Order - UPDATED 4.28.20

This is a guest post from Atty. Jennifer Hayden of Petrie + Pettit S.C.

As many of you know, the City of Milwaukee Commissioner of Health issued a “Stay at Home” Order effective at 12:01 a.m. on March 25, 2020.  There is no specified end date or time. 

Except for the specific exceptions listed, all individuals currently living within the City of Milwaukee are ordered to stay at home or at their place of residence.  All businesses with a facility in the City, except Essential Businesses and Operations, are required to cease all activities at facilities located within the City except Minimum Basic Operations or employees working from home.

Numerous businesses are impacted, but a few provisions seem particularly relevant to landlords, property owners and management companies.

The first of these provisions is at the end of Section 4, Prohibited Activities and states as follows: “A landlord or rental property manager shall not enter a leased residential rental premises unless a maintenance emergency exists.”  I interpret this to mean that there could be an issue with entering a tenant’s apartment for things such as inspections, routine maintenance, and, in most circumstances, showing an occupied apartment to a prospective tenant.

 UPDATE 4/28/20: The above has been extended until May 26, 2020 at 8 am per Governor's Order #28

Outside of this specific prohibition, leaving home to perform work providing essential products and services at Essential Businesses or Operations or to otherwise carry out activities specifically permitted, including Minimum Basic Operations is permitted.  An Essential Business or Operation includes Professional Services such as real estate services.

 UPDATE 4/28/20: The above has been extended until May 26, 2020 at 8 am per Governor's Order #28

Additionally, businesses are allowed to continue to perform Minimum Basic Operations including (a) The minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions and (b) The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.  Employees must comply with Social Distancing Requirements, to the extent possible, while carrying out these operations.

Social Distancing Requirements include: maintaining social distancing of six (6) feet between people; washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer; covering coughs or sneezes (into the sleeve or elbow, not hands); regularly cleaning high-touch surfaces; not shaking hands; and following all other public health recommendations issued by DHS and the U.S. Centers for Disease Control.

At this point, we don’t have much guidance on any specifics related to this Order or its enforcement, but we will be updating this post as this situation continues to unfold.