ACT 76 - Wisconsin's New Landlord-Tenant Law - Part 3: Speeding Up the Eviction Process

Several of the provisions of Wisconsin's New Landlord-Tenant law, Act 76 (SB 179), were created or amended to speed up the eviction process. Evictions are supposed to be summary proceedings and per the Wisconsin Supreme Court (Scalzo v. Anderson, 87 Wis. 2d 834 (1979)) there are very limited number of issues permissible in an evictions action. Nonetheless, tenants were finding ways to delay the process. Hopefully Act 76 will resolve much of that delay.

First, Act 76, amends sec. 799.12, Wis. Stats. to allow circuit courts in the various counties to decide via local rule whether or not to allow service of an eviction summons via certified mail. Current law does not allow service of an eviciton by mail and requires that an eviction summons be served personally, or after reasonable diligence has been made, via substituted service or posting and mailing.

If a county allows service via mail, then the clerk shall mail a copy of the eviction summons to each defendant at their last known address. Service of the summons will be considered completed when mailed, unless the envelope enclosing the summons has been returned unopened to the clerk prior to the court date.

I personally think that service of an eviction summons via mail will cause logistical problems. I can tell you right now that Milwaukee and Dane counties certainly will not agree to service by mail in eviction actions but possibly it will work in smaller counties.

Second, Act 76 amends sec. 799.05(3)(b), Wis. Stats. and states that the return date (initial appearance) in court can be no less than 5 days and no more than 25 days after service is issued (i.e. the tenant is served with the eviction summons). Current law requires the return date be held no less than 5 days and no more than 30 days after service.

It will be important that landlords make sure that their process servers are aware of this law change starting March 1, 2014 otherwise it could result in their evictions being dismissed if the return date/initial appearance is scheduled more than 25 days after service is effectuated.

Third, sec. 799.206 and sec. 799.20(4), Wis. Stats, have been amended to require that all contested hearings in small claims actions (evictions, garnishments, replevins etc.) must be scheduled within 30 days of the return date/initial appearance.

Even more important to landlords is that all residential evictions trials on the first cause of action (i.e. return of the premises) must be held and completed within 30 days of the return date/initial appearance. This law new law applies to both trials to the court and jury trials.

I personally feel that this change is the most important part of Act 76 in terms of speeding up the eviciton process. While many evictions are not contested and the landlord obtains a default judgment, those that are contested can take a long time to get to trial. Many tenants and their advocates have been requesting jury trials on eviction matters. By doing so - at least in Milwaukee county - these cases are rotated to a large claims judge handling civil matters (as the small claims judge does not handle jury trials) and result in a lengthy delay. In some of my contested eviction cases, it was taking 2 months to even get before the judge for a Scheduling Conference and the jury trial itself was not being scheduleded until 6 months after the return date.

While tenants are entitled to their day in court -- which includes a jury trial if they wish -- they should not be given a 6 month reprieve just by requesting a jury trial. During those 6 months the landlord often is not receiving any rent payments and/or the "good" tenants in the building are stuck putting up with the actions of the breaching tenant. In my opinion, requesting a jury trial in an eviction action is nothing more than a delay tactic. Tenants and their advocates have been successful in buying more time and in making the eviction process more expensive for the landlord by driving up his/her costs and fees. Of all the jury trials requested by tenants in eviction cases that I have been involved in (which number over 20 - most of which occurred this past year) not one of them actually went to trial. So I am very happy to this new law hopefully put a stop to this abuse of the system. Tenants will still get their trials but they can no longer stretch it out for months and months. How the courts will assimilatate these jury trials within the 30 day time limit will be the key issue moving forward.

If you missed my prior posts on Wisconsin's new landlord-tenant law you can click on the links below

Part 1 - Background and Overview

Part 2 - Restrictions on Local Ordinances

ACT 76 - Wisconsin's New Landlord-Tenant Law - Part 2: Restrictions on Local Ordinances

As I mentioned in Part 1, the soon to be new law contains new provisions as well as some corrective provisions (which will correct unintended consequences from last year's new law Act 143). In this blog post I will talk about one of the new provisions of the law which will restrict a local municipality from creating and/or enforcing certain local ordinances.

The new law will creates sec. 66.0104(2)(c) and (d), Wis. Stats., which says that a municipality may not enact or enforce an ordinance that:

a. Limits a residential tenant’s responsibility, or a residential landlord’s right to recover for damage, waste or neglect of the premises, or for any other costs, expenses, fees payments or damages for which tenant is responsible under law or under the rental agreement.

b. Requires a landlord to communicate to a tenant any information that is not required to be communicated under federal or state law.

i.e. City of Madison’s ordinance that requires landlords to distribute voter registration information to new tenants will not be enforceable under this new law.

c. That requires a landlord to communicate to a municipality any information regarding the landlord or tenant unless:

(1) Information is required under federal or state law.

(2) Information is required of all residential real estate owners (not just landlords!)

(3) Information will enable a person to contact the owner, or agent of the owner.

Note: This subsection does not apply to an ordinance that has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

So what will the net effect of this new provision of the law curtailing local municipalities from enacting and enforcing certain ordinances? According to one tenant advocate SB 179 will eliminate over 20 Madison ordinances. SB 179 should also eliminate Milwaukee’s Residential Rental Inspection (RRI) pilot project in the UW-M and Lindsay Heights neighborhoods.

It should be noted however that the new law will not eliminate "rental recording" in various municipalities as earlier versions of SB 179 had. Under the final version of the law, landlords will still have to provide their ownership and contact information to the municiaplity since doing so would fall under the above exception since the information will enable a person to contact the owner or agent of the owner.

To learn more on the background and overview of Wisconsin's new Landlord-Tenant Law read my prior post.

Update on Landlord Pre-Emption Bill

It has been awhile since I updated everyone on the pro-landlord legislation that is being addressed in Madison. Senate Bill 107 (SB 107) -- referred to as the Landlord Pre-Emption Bill -- has been passed by the Wisconsin Senate and is currently being reviewed by the House this term (AB 155).

You may recall that SB 107 prohibits any municipality from enacting any ordinance that limits a landlord from obtaining or using various types of information about a tenant or prospective tenant, such as household income, occupation, court records, rental history, and credit information, or limits how far back in time a prospective tenant's

credit information, conviction record, or previous housing may be considered.

The bill has received much opposition from local municipalities and their lobbyists, not for the substance of the bill, but rather for the fact that if passed, the law will

restrict a municipality’s ability to draft certain ordinances. Essentially the municipalities feel this to be a breach of their own sovereignty and an example of the state overstepping its bounds. Many feel that this is really just a Madison problem -- since it is the City of Madison that has enacted many of these restrictions on what information a landlord can consider when making a rental decision – and therefore should be dealt with at the city level.

Another group of critics believe that the bill discriminates against African-Americans. Four Dane County Board Supervisors, two Madison City Council members and one Madison School Board member, sent a letter to Governor Walker and legislators on September 7, 2011, asking that the provision of the bill that will allow landlords to deny housing to tenants with criminal histories be removed because is discriminates against African Americans.

They argue that allowing a landlord to deny a rental applicant housing based on his/her criminal convictions will unfairly affect African-Americans because while they

only comprise 6% of the state’s population they account for almost 50% of those with arrest and conviction records. Thus the critics of the bill argue that to allow a landlord to deny a rental applicant based on his/her criminal record is to allow landlords to deny housing based on race.

The critics are relying on the doctrine of "disparate impact." The disparate impact doctrine holds that certain laws may be discriminatory and illegal – even if the law is neutral on its face -- if they have a disproportionate "adverse impact" on members of a minority group.

This disparate impact argument is ignoring a key ingredient – one’s choice to engage in criminal activity. One’s race is not something that a person has control over – we are born into a certain race. On the other hand, individuals do have control over whether or not they engage in criminal activity. Committing a crime is a volitional act. Being born African-American is not. We are dealing with apples and oranges here.

Disparate impact arguments are often raised when a law unintentionally affects a minority group through no fault of their own. This small group of critics, are trying to apply the disparate impact doctrine to individuals that made a voluntary decision to engage in criminal activity.

UPDATE - 10-28-11 -- On Wed. Octo 26, 2011, By a vote of 59-34 the Assembly voted to suspend a rulling on AB155. An amendment was made by Rep Chris Taylor (D-Madison) that would protect some local control within the bill - the amendment was tabled by a vote of 60-33.

City of Madison Proposes New Legislation That Will Make A Landlord Become His Tenant's Babysitter

In an attempt to curtail house parties or "keggers" in the city of Madison, a new ordinance has been proposed. Legislative File Number 23310, would create section 25.10 of the Madison General Ordinances to prohibit what is referred to as "nuisance parties." The ordinance would require the police to provide a landlord with notice of a nuisance party that occurred at his rental property and require the landlord to take appropriate measures to prevent future nuisance parties from being held by his tenant at the rental property. The ordinance would also allow the police to fine the landlord between $100-$5,000 if his tenant held a second nuisance party within a 12 month period.

A "nuisance party" is defined as a social gathering that, by reason of the conduct of the persons in attendence, results in one of more violations of 17 enumerated ordinance violations, including but not limited to: selling or giving away intoxicating liquors without a license, procuring and furnishing alcohol to minors, intentionally encouraging the comsumption of alcohol by minors, disorderly conduct, obstructing street and sidewalks etc. etc.

Under the proposed ordinance, if a beer barrel is visible to the public, even if it is located in the back yard, side yard, or on the porch of the property, and one or more of the above-noted ordinance violations is present, that gathering will be considered a nuisance party. Looks like the days of sitting on the porch drinking from a keg are over for the college kids.

Any person who is the "owner, occupant, tenent or otherwise has rightful possession . . . of any premise, who either sponsors, conducts, hosts, invites or permits a social gathering or party on said premises which becomes a nuisance party . . . is deemed to be in violation of the ordinance." By this wording it appears that the city thinks that a landlord is inviting, permitting or encouraging a tenant to have a house party if the landlord does not prevent it from occurring. How about a different possibility ----- the landlord was not aware of the party.

Essentially this ordinance, if passed ---- heck, it is MADISON, of course it will be passed ---- will make a landlord responsible financially for any tenant that has a 'kegger." Yes, I understand that these parties can be dangerous and can be a nuisance to neighbors, and I am not taking issue with the need to stop so called "nuisance parties." But trying to hold a landlord responsible for his tenant's actions is not the way to solve the problem of house parties. Landlords are not their tenants babysitters. While a landlord may wear many hats . . . housing provider, bill collector, maintenance person, social worker etc . . . we are not babysitters.

An article in the Daily Cardinal from July 27, 2011, quotes Alderman Scott Resnick, who is against the proposal, as saying "it makes the landlord play babysitter to a number of house parties." Resnick indicates that he is against the proposal because there are already laws and ordinances available that prevent overcrowding and disturbing the peace." Resnick also stated that involving landlords is not the way to address problems with underage drinking and large house parties near campus.

The part of the ordinance that concerns me the most is the sub-part entitled (6) "Owner's Failure To Prevent A Second Nuisance Party." The first sub-section states that within 10 days of the police breaking up a nuisance party, the police must notify the landlord of the violation of the nuisance party ordinance. It also states that the landlord must give the tenant a 5 day notice for breach of the rental agreement for having the nuisance party. But the kicker is contained in the second sub-section which states that if another nuisance party occurs at the same property within a 12 month period and the same occupants are responsible for the party, the police SHALL send the landlord a second notice of the nuisance party ordinance violation and the landlord SHALL be subjected to a forfeiture.

So under this proposed ordinance, a landlord can be fined even though legally he is unable to terminate his tenant's tenancy or file an eviction prior to the tenant hosting a second nuisance party.

Unless things have changed since I went to college, most tenants operate under a one year lease agreement with their landlords. When a tenant is under a lease agreement for a specific term (as opposed to a month to month tenancy) and breaches the term of his rental agreement, a landlord is required to serve the tenant with a 5 day notice which allows the tenant the right to cure the breach and remain a tenant. A landlord legally cannot terminate his tenant's tenancy after the first breach if the tenant is under a lease for a specific term.

So let's walk through this in the context of a nuisance party:

1. A tenant hosts a nuisance party

2. The landlord is notified of the party by the police or neighbors and serves the tenant with a 5 day notice for breach of lease.

3. The tenant cures the breach by not having another party within the "cure" period.

4. That same tenant decides to host a second house party within 12 months of the first shindig, thus committing a second breach of the lease.

It is only at this point that a landlord can serve the tenant with a 14 day notice (which does not afford them the right to cure the breach) terminating the tenancy and proceed to evict the tenant if he fails to vacate the rental property at the end of the 14 days. But by this time, under the proposed ordinance, the landlord can already be hit with a fine from the city for his tenant's actions.

Now, Madison's proposed ordinance does include a section (8) entitled "Affirmative Defenses" which states that "it shall be an affirmative defense to a charge of violating the ordinance, if the landlord has evicted or is dilligently attempting to evict all tenants and occupants of the property who are responsible for the nuisance parties."

Based on this language it would appear that some leniency may be given to a landlord who is attempting to evict a tenant that has hosted two keggers within a 12 month period. But why not draft the ordinance so that the landlord cannot be fined until after he is legally able to remedy the problem under Wisconsin landlord-tenant law. A landlord should not be able to be fined by the city for violating a municipal ordinance for failure to control his tenant, when state law prevents him from doing anything about the problem yet.

Personally, I think the entire ordinance is ridiculous. Landlords are not their tenants babysitters. People should be held responsible for their own actions. But if the city of Madison is going to attempt to hold landlords responsible for their tenants behavior, then it should at least make sure that a landlord has the legal ability under state landlord-tenant law to rectify the tenant's behavior by terminating his tenancy and filing an eviction action against the tenant, before the police are allowed to fine the landlord for allegedly not handling the problem.