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

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

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

SB 655/AB 712: Rental Assistance

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

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

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

SB 657/AB 705: Extending Emergency Assistance Stay

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

SB 658/AB 698: Tenant Right to Counsel

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

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

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

SB 660/AB 699: CCAP Information

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

SB 661/ AB 703: Eviction Stipulations

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

SB 662/ AB 700: Tenant Property Disposition

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

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

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

SB 664/AB 713: Eviction Notices

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

SB 665/AB 709: Short-term Rental Restrictions

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

SB 666/AB 694: Tenant Organizing Rights

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

SB 677/AB 706: Rent Abatement and Retaliatory Conduct

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

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

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

SB 670/AB 707: Repeal Local Government Eviction Moratorium

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

SB 634/AB 714: Housing Discrimination and Prior Evictions

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

LRB 0431/AB : Legal Services Grants

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

LRB 0427/AB : Housing Discrimination

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

SB 726/AB 696: Rent Abatement

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

LRB 3889/AB : Residential Leases

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

SB 821/AB : Rent control and Inclusionary Zoning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Milwaukee Common Council Approves Legislation Requiring Lead-Safe Certification Before a Property can Be Rented To Public

On July 7, 2020, the full City of Milwaukee Common Council approved legislation to create a program certifying that rental properties are lead-safe before they can be rented to tenants.

Authored by Alderman Ramsey, this resolution directs the Department of Administration-Intergovernmental Relations Division to seek the introduction and passage of state legislation that would permit the City of Milwaukee to create a program requiring rental property owners to certify that rental properties are lead-safe before they can be rented.

Alderman Rainey in his press release, stated that many properties rented for residential use in Milwaukee are believed to have significant lead-poisoning hazards that can be contained or abated by regular and conscientious maintenance, yet many renters are not aware of the existing lead hazards and how they pose a serious risk to the health and safety of anyone (especially children) living in these residential units.  "A person renting and living in a residential property has a right to presume the property being rented is a healthy and safe environment, free from risk of sickness or injury," he said.

"A lead-safe certification program would compel landlords to contain or abate lead poisoning hazards, thus ensuring that stable value of these properties and the surrounding neighborhoods, and improving the quality of life for residents, " Alderman Rainey said.  "Even though COVID-19 remains a top health priority, we must continue to do all we can to combat the dangerous lead issues that exists in Milwaukee" Rainey said. 

HT to AASEW Owner (July 2020)

VIDEO: Interview Summarizing Key Points of Wisconsin's Latest Landlord-Tenant Law - Act 317

I recently had the opportunity to present a continuing legal education (CLE) webinar for the State Bar of Wisconsin on the recent passage of Act 317 - Wisconsin's latest Landlord-Tenant law changes.  After the webinar, which is primarily for attorneys, I was interviewed by the State Bar about some of the highlights from Act 317 and they were nice enough to allow me to include the video on by blog

New Landlord-Tenant Law - Act 317 - Is Effective on April 18, 2018.

On April 16, 2018 Governor Walker signed into law 2017 Wisconsin Act 317 which is Wisconsin's newest Landlord-Tenant law. The law was published yesterday, April 17th, which means that it will become effective tomorrow, April 18, 2018.

It is a very large law -- 8 1/2 pages long -- too much for me to cover in this post. I have chosen to focus on the portions of the law that affect Landlord-Tenant law specifically. There are other portions of the law that will affect Landlording in general, however, so I recommend that you review the entire law.

ASSISTANCE ANIMALS

• Repeals Wis. Stat. § 106.50(2r)(bm) entitled “Animals Assisting Persons with Disabilities" which was a very confusing provision and only focused on animals that assisted people with visual, hearing, or mobility impairments and only applied to animals that were specially trained.
• Replaces the above statutory section with two separate provisions, one addressing Animals That Do Work or Perform Tasks for Persons with Disabilities, and one for Emotional Support Animals. Both sections provide guidance on the law regarding assistance animals.

Animals That Do Work or Perform Tasks for Individuals with Disabilities (“Animal")

• If a rental applicant/tenant (“Tenant") has a disability and a disability-related need for an Animal, it is discrimination for a Landlord to do any of the following because the Tenant keeps such an Animal:

1. Refuse to rent;
2. Cause the eviction of;
3. Require extra compensation from the Tenant as a condition of continued residence; or
4. Engage in the harassment of the Tenant.

• If a Tenant wants to keep an Animal, the Landlord may request -- unless the disability and the disability-related need is apparent or known -- that the Tenant provide:

1. Reliable documentation that the Tenant has a disability; and
2. Reliable documentation of the disability-related need for the Animal.

• A Tenant who keeps an Animal shall accept liability for damage to the premises caused by the Animal.
• A Landlord can deny a Tenant the ability to keep an Animal if:

1. The Tenant is not disabled, does not have a disability-related need for the Animal, or fails to provide the necessary documentation;
2. Allowing the Animal would impose an undue financial and administrative burden or would fundamentally alter the nature of services provided by the Landlord;
3. The specific Animal poses a direct threat to a person's health or safety that cannot be reduced or eliminated by another reasonable accommodation;
4. The specific Animal would cause substantial physical damage to a person's property that cannot be reduced or eliminated by another reasonable accommodation.

Emotional Support Animals (“ESA")

• An ESA is defined as an animal that provides emotional support, well-being, comfort, or companionship to an individual but is not trained to perform tasks for the benefit of a disabled person.
• If a rental applicant/tenant (“Tenant") has a disability and a disability-related need for an ESA, it is discrimination for a Landlord to do any of the following because the Tenant keeps an ESA:

1. Refuse to rent;
2. Cause the eviction of;
3. Require extra compensation from the Tenant as a condition of continued residence; or
4. Engage in the harassment of the Tenant.

• If a Tenant wants to keep an ESA, the Landlord may request -- unless the disability and the disability-related need is apparent or known -- that the Tenant provide:

1. Reliable documentation that the Tenant has a disability; and
2. Reliable documentation of the disability-related need for the ESA from a licensed health care professional.

NOTE: A “licensed health care professional" is defined as a physician, psychologist, social worker, or other health care professional who satisfies all of the following:

1. Licensed or certified in the state of Wisconsin; and
2. Acting within the scope of his or her license or certification.

• A Tenant who keeps an ESA shall accept liability for damage to the premises caused by the ESA.
• A Landlord can deny a Tenant the ability to keep an ESA if:

1. The Tenant is not disabled, does not have a disability-related need for the ESA, or fails to provide the necessary documentation;
2. Allowing the ESA would impose an undue financial and administrative burden or would fundamentally alter the nature of services provided by the Landlord;
3. The specific ESA poses a direct threat to a person's health or safety that cannot be reduced or eliminated by another reasonable accommodation;
4. The specific ESA would cause substantial physical damage to a person's property that cannot be reduced or eliminated by another reasonable accommodation.

• If a Tenant, for the purpose of obtaining housing, intentionally misrepresents that s/he has a disability or misrepresents the need for an ESA to assist with the disability, the Tenant shall pay a fine of not less than $500.
• If a licensed health care professional, for the purpose of allowing a patient to obtain housing, misrepresents that the patient has a disability or a disability-related need for an ESA, the health care provider shall pay a fine of not less than $500.

CHARGING FOR LANDLORD'S TIME AND MATERIALS

• Current law states that if Landlord elects to repair the damage caused by the Tenant then the Tenant must reimburse the Landlord for the reasonable cost.
• The new law defines what “Reasonable Costs" include the following:

1. Materials or labor provided by Landlord;
2. At a reasonable hourly rate, the time a Landlord spends doing the following: (a) purchasing or providing materials, (b) supervising an agent of the Landlord, and/or (c) hiring a third-party contractor.

ABATEMENT

• Current law states that if the rental property in untentable and the Tenant remains in the property that rent can be abated.
• New law adds that the Tenant can only abate rent if s/he remains in the property and “the condition materially affects the health or safety of the tenant or substantially affects the use and occupancy of the premises.

CREDIT AND BACKGROUND CHECKS

• Essentially incorporates Wis. Admin, Code § ATCP 134.05(4) regarding credit checks and increases the amount that can be charged by $5 and adds a new provision regarding charging out of state applicants for background checks.
• A Landlord may require a rental applicant to pay the Landlord's actual cost, up to $25, to obtain a consumer credit report on the applicant from a consumer credit reporting agency that compiles and maintains files on a nationwide basis.
• A Landlord must notify the applicant of the charge prior to ordering the report and must provide a copy of the report to the applicant if applicant paid for the report.
• A Landlord cannot require an applicant to pay for the report is the applicant provides a copy of his/her credit report that is less than 30 days old, to the Landlord prior to the Landlord ordering the report.
• A Landlord may require an applicant who is not a resident of Wisconsin to pay the Landlord's actual costs, up to $25, to obtain a background check.
• A Landlord must notify the applicant of the charge prior to ordering the report and must provide a copy to the applicant.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

ELECTRONIC DELIVERY OF CERTAIN DOCUMENTS/INFORMATION

• A rental agreement may include provisions that allow a Landlord to provide and indicate agreement to send the following via electronic means:

1. A copy of the rental agreement and any document related to the rental agreement;
2. A security deposit and any documents related to the accounting and disposition of the security deposit and security deposit refund;
3. Any promise made by the Landlord, prior to entering into the rental agreement to clean, repair, or otherwise improve any portion of the rental unit;
4. A notice for Landlord to enter the rental unit.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

RENT INCLUDES LATE FEES

• In the section regarding Notices Terminating Tenancy (Wis. Stat. § 704.17) the term “rent" is defined to include any rent that is past due as well as any late fees owed for rent that is past due.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

INCORRECT AMOUNT IN NOTICE

• A notice for failure to pay rent or any other amount due under the rental agreement that includes an incorrect statement of the amount due is still valid unless any of the following apply:

1. The Landlord's statement of the amount due is intentionally incorrect; or
2. The Tenant paid or tendered payment of the amount that the Tenant believes to be due.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

CONSOLIDATED COURT AUTOMATION PROGRAMS (CCAP)

• The Director of State Courts may not remove case management information from CCAP for any civil case that is not closed, confidential, or sealed for the following periods:

1. If a writ of restitution has been granted in an eviction action - 10 years;
2. If an eviction action has been dismissed and no money judgment has been docketed – 2 years.

NOTARIZATION

• A Court may not require that a person filing a summons or complaint under ch. 799 to have the summons and complaint notarized.

CONTESTED EVICTION

• Prior law stated that in an eviction, garnishment, or replevin action if any party claims that a contest exists, the matter shall be scheduled for a hearing before the judge.
• New law states that in an eviction, garnishment, or replevin action, if any party raises valid legal grounds for a contest, the matter shall be scheduled for a hearing before the judge.

SERVICE OF NOTICES

• If a Landlord gives a notice terminating tenancy via certified mail, proof of certified mailing from the U.S. Post Office is sufficient to establish that proper service has been provided. An affidavit of Service may not be requested to establish proper service has been provided.

WAIVER

• It shall not be a defense to an eviction action or a claim for damages that the Landlord or Tenant has previously waived any violation or breach of any terms of the rental agreement, including, but not limited to, the acceptance of rent or that a custom or practice occurred or developed between the parties in connection with the rental agreement so as to waive or lesson the right of the Landlord or Tenant to insist upon strict performance of the terms of the rental agreement.

EMERGENCY ASSISTANCE (“EA")

• Prior law said that the Court shall stay an eviction if the Tenant applies for EA.
• In McQuestion v. Crawford, 2009 WI App. 35, 316 Wis.2d. 494, 765 N.W.2d 822, the Wisconsin Court of Appeals held that any EA stay may be in effect for only a “reasonable period of time."
• New law requires that:

1. No EA stay may be granted after a writ of restitution has already been issued; and
2. If a stay is granted the stay may not be for more than 10 working days.

REPRESENTATIONS TO COURT AS TO PREPARATION OF PLEADINGS OR OTHER DOCUMENTS

• If an attorney drafts or assists in drafting a pleading, motion, or other document for a self-represented person. Any such document must contain a statement immediately adjacent to the person's signature that “This document was prepared with the assistance of a lawyer, followed by the name of the attorney and the attorney's state bar number."

Milwaukee County Proposes A New Protected Class in Housing - "Receipt of Rental or Housing Assistance"

Milwaukee County Supervisor Maria Dimitrijevec is sponsoring a resolution to amend the Milwaukee County Code of General Ordinances related to Fair Housing to include a new protected class - the "receipt of rental or housing assistance." The resolution has been referred to the Economic Development Committee and may be scheduled to be discussed at the committee's meeting on March 12, 2018 at 9 AM.

If passed, this resolution would have a significant impact on landlords and property managers. Currently a landlord may legally refuse to accept any applicant if they receive rental or housing assistance. If this resolution passes, landlords in Milwaukee County would no longer be able to do so without risking a discrimination claim.

Under the proposed resolution, "receipt of rental or housing assistance" is defined as including the receipt of any form of financial contribution from a third party for the purposes of creating or keeping affordable housing for tenants, purchasers, or other potential housing recipients, including but not limited to, assistance provided pursuant to Title 42, United States Code, section 1437f (commonly known as the "Section 8" housing program), the HOME Partnership Program, the Community Development Block Grant program, or any other public or private rental assistance vouchers or programs.

Rental or housing assistance in SE Wisconsin is often referred to as "Section 8" or "Rent Assistance" or "RA." The most common form of rental assistance is run through the Section 8 program. Section 8 tenant-based housing assistance is available to low-income families and the subsidy moves with the tenant and can be used to pay toward rent at any conventional market-rate rental units. Essentially the tenant chooses the rental unit where they want to live and if the tenant meets the landlord's screening criteria, the landlord accepts the RA (which will be required in Milwaukee County if this resolution passes), and the rental unit passes an inspection, then the Section 8 program will pay the RA directly to the landlord. The RA typically does not cover the entire monthly rent amount and therefore the tenant will be required to pay the difference to the landlord.

In order for a tenant to receive RA they need to find a landlord that will accept it. In order for a landlord to receive RA on behalf of a tenant the landlord must enter into a contract with the government or its agent. Here is an example of such a contract.

Some things to be aware of when entering into a contract to receive RA include:

1. The government or its agent determines what the maximum amount of rent that can be charged by the landlord for the rental property based on a number of factors. Once that maximum amount is determined, a landlord is prohibited from charging the tenant a higher amount.

2. The government or its agent will inspect the rental unit and it must pass certain housing quality standards and be maintained up to those standards throughout the lease term. If repairs are required to pass the inspection the landlord must pay for them and the landlord may also be cited for building code violations. At a minimum there will be annual inspections. If the standards are not met the government may withhold paying the RA to the landlord.

3. A landlord would not be able to use a month-to-month rental agreement with the tenant as all of the agencies that administer RA require the landlord to enter into an initial 12 month lease.

4. The government does not "screen" the tenant for the landlord - screening remains the landlord's responsibility.

5. The tenant cannot be evicted if the government fails to pay its portion of the monthly rent.

6. The landlord must serve the government with copies of any notice for failure to pay rent or other breach that the landlord serves on the tenant. If this is not done, it can serve as a basis for any ensuing eviction to be dismissed.

7. The government has no liability or responsibility to the landlord for the tenant's behavior (again, the government is not screening the tenant for you).

8. A landlord's lease must be approved by the government. A landlord's lease will be required to include the government's tenancy addendum and ideally the lease term (between the landlord's lease and the government's addendum) will be identical (but if it is not, the government's lease addendum controls).

Accepting RA is not for every landlord. For every landlord that loves the program I have heard just as many landlords that dislike it. Regardless of your view, you must be prepared to give up some control to the government in exchange for receiving the guaranteed RA from the government. There has been a trend around the country of municipalities adding "rental assistance" to the list of protected classes, so I am not surprised to see Milwaukee County joining in.

New Landlord-Tenant Law Legislation - Wisconsin's Affordable Rental Housing Act of 2017

There are currently two bills in Madison that will significantly impact Landlord-Tenant Law in Wisconsin. 2017 Senate Bill 639 (SB 639) and 2017 Assembly Bill 771 (AB 771) ("bill") are referred to as the Wisconsin's Affordable Rental Housing Act of 2017 and are sponsored by Senator Frank Lasee and Representative Robert Brooks.

The 20-page bill address many issues including historic preservation, rental inspections, rental inspection fees, notice of eviction requirements, background and credit checks, emotional support animals, landlord's charging for personal time when making repairs, rent abatement, local fees, dwelling inspections, public utility service, levy limits, court records, municipal administrative review and the rental weatherization program.

It is important to understand that a bill is a work in progress. I attended a public hearing in Madison on SB 639 back on December 13th and based on the testimony presented at that hearing it is clear that there will be some modifications to the bill. Additionally the public hearing on the Assembly companion bill, AB 771, was only held earlier today. Additionally, in the past few days I have read several proposed changes to the bill, so there will definitely be some changes to the bill.

This blog post will only focus on the sections of the bill related to landlord-tenant law.

Emotional Support Animals

The bill will separate assistance animals animals into 2 separate categories. The first category will be "animals that do work or perform tasks for individuals with disabilities" and second category will be "emotional support animals." An emotional support animal ("ESA") is defined in the bill as an animal that provides emotional support, well-being, comfort, or companionship for an individual but that is not trained to perform tasks for the benefit of the person with a disability.

Under the bill a landlord is able to request that the individual who wants to keep an ESA submit reliable documentation from a licensed health professional verifying that the individual requesting the reasonable accommodation has both a disability and a disability-related need for the ESA. A "licensed health professional" is defined as a physician, psychologist, social worker, or other health professional who is licensed or certified in the state of Wisconsin and is acting within the scope of his or her license or certification.

A person that keeps an ESA shall accept liability for sanitation and damage to the premises caused by the ESA. Further the person requesting an ESA shall forfeit not less than $500 if he or she, for the purpose of obtaining housing or living in housing, misrepresents a disability or misrepresents the need for an ESA to assist with the disability. The bill also states that a licensed health professional that misrepresents the above for a person requesting an ESA will also be subject to the same forfeitures.

Landlords Are Able To Charge For Their Time

The bill clarifies that if a tenant causes damage to the rental property, a landlord is able to charge the tenant his/her "reasonable costs," at a reasonable hourly rate, which may include (a) the cost of materials and (b) the landlord's time spent purchasing materials, providing labor, supervising, or hiring a third-party contractor to make the repairs.

Abatement

A tenant can abate rent only if the tenant remains in possession of the rental property and the condition of the property materially affects the health or safety of the tenant or substantially affects the use and occupancy of the rental property. Further, any municipal ordinance that is currently in effect or is created in the future, may only allow abatement for conditions that materially affect the health or safety of a tenant or substantially affect the use and occupancy of the rental property.

Consumer Credit Reports and Background Checks

The bill allows a landlord to charge a rental applicant for the cost, up to $25, to purchase a consumer credit report or the actual cost to the landlord, whichever is less. This is a $5 increase from the current amount that can be charged. The bill also allows a landlord to charge a rental applicant that is not a resident of Wisconsin up to $25 to obtain a background check.

E-Delivery

A landlord will be allowed to provide the following information and/or documentation to a tenant by electric means: (1) rental documents, (2) security deposit documents related to the accounting and disposition of the security deposit or refund, (3) any promises made before the rental agreement was entered into relating to cleaning, repairing, or otherwise improving the rental property.

Rent Includes Late Fees

The bill would define rent to include any past due rent and accompanying late fees.

Incorrect Amount Listed In Notice

If a Notice for failure to pay rent or for failure to pay any other amount due under the rental agreement contains an incorrect dollar amount, the notice will still be valid unless the tenant has paid or tendered payment of money that the tenant admits is actually due. I expect to see some changes to this section as the purpose of this section of the bill was to prevent courts from dismissing evictions based on notices with mathematical errors but as written this section could be abused by some.

CCAP

The Director or State Courts may not remove any case management information from CCAP related to a civil case, which includes evictions, for a period of at least 10 years after the date that a final judgment was entered. I suspect this section will be modified before it becomes law.

Notarization

Eviction Summons will no longer need to be notarized.

Tenant Must Present Valid Legal Grounds To Contest An Eviciton

Currently in order to have an eviction action scheduled for a contested hearing a tenant merely has to "claim that a contest exists." Under the bill a tenant would be required to provide valid legal grounds to contest the eviction before he or she would be entitled to an eviction hearing.

Notices Terminating Tenancy

If a landlord serves a Notice via certified or registered mail and provides the court with a certified or registered mail receipt a court may not require the landlord to also complete and Affidavit of Service.

No Waiver

It shall not be a defense to an eviction lawsuit or a claim for damages that the landlord has previously waived any violation or breach of any of the terms of the rental agreement so as to waive or lesson the landlord's right to insist upon strict performance under the rental agreement in the future.

Emergency Assistance Stays

An Emergency Assistance stay cannot be ordered after the landlord has been granted a writ of restitution. If a writ has not yet been granted, the Court may only stay the eviction for no more than 5 working days. The time period of the stay in this section will most likely be enlarged due to testimony from the public hearing.

There are many other provisions in bill that I have not touched but which will affect landlords and property managers even though the sections are not lanldord-tenant related. f you are interested in reading the other provisions provisions which while they are not landlord-tenant related, will affect property owners and manager you should do so at SB 639 or AB 771.

T

Milwaukee County Board Considering Ordinance on Rent Abatment

An important message for the Apartment Association of Southeastern Wisconsin: The Milwaukee County Board is considering a proposal that would permit your tenants to abate rent for maintenance issues not addressed within 24 hours. For example, your tenant calls on Friday morning to say the bathroom faucet is not working correctly. You go out and fix it on Sunday, 50 hours after the call came in. This proposal would allow that tenant to deduct $200 from the rent - Yes! Under this proposal, the tenant can deduct TWO HUNDRED dollars even though you made a timely repair of a minor item that does not affect health or safety. You can read the whole proposal and list of proposed deductions here. There will be a hearing on this proposal at 9:00 AM Monday, July 17th, 2017 at the County Board Committee Hearing Room at the Milwaukee County Courthouse, 901 North 9th Street, RM 201B, Milwaukee, WI 53233 Phone: 414-278-4222. Ironically this is two floors below the eviction courtroom where the legitimacy of each deduction will be decided. I encourage you to attend. If you cannot attend you can still make an impact by reaching out to your County Supervisor and/or County Executive Chris Abele to let them know the potential negative impact of this proposal on both you as the property owner and on your tenants. If you live in one of their districts please make an extra effort to contact your supervisor and attend. Constituents of the supervisors make a bigger impact when in attendance. Who represents me? Here is the link to look up your County Supervisor: Here is the link for County Executive Chris Abele: Here are some talking points to help you get started when making your call. How is maintenance even directly related to evictions? Who will be responsible for verifying maintenance issues? At what cost? In what time frame? What is the plan if the issues are deemed inaccurate? Cost of these abatements and the court costs to fight them will be passed on to good tenants There is a risk of tenants seeing these types of abatements as a means to avoid paying legitimate rent. This proposed system is just another layer of cost to the city There are already programs in place to protect tenants through the Department of Neighborhood Services (DNS). Why add this? If the current system is not working, why not improve what we have rather than create a new layer of bureaucracy and cost. Evictions are not a result of non-repair, but a result of non-payment This proposal will increase evictions, not decrease them. Many of the tenants featured in the news surrounding the Eviction Defense Project (Milwaukee) are serial evictees. This type of evictee increases the rents of good tenants; repeated court costs, employee time, and loss of rent cause rents to rise. There are bigger issues to be addressed regarding evictions in Milwaukee. We need to be looking at ways for landlords to be better landlords and tenants to be better tenants. Many want to blame housing for all the problems in our communities. A better approach for both housing and for the tenants that find themselves in eviction would be to look at the underlying cause of the tenant's failure to pay rent and have both financial assistance and social intervention to make their future tenancies successful. Housing isn't the problem, it's part of the solution. Money would be better spent on education, neighborhood programs and increased police protection. The AASEW applauds efforts to reduce evictions as they are time consuming and costly for the owners as well as negatively impacting the housing stock and the tenants. Take action today; contact your supervisor or attend the meeting on Monday (7/17/17). Ron Hegwood President AASEW

ACT 176: Governor Signs New Landlord-Tenant Bill Into Law

On Monday, February 29, 2016 Governor Scott Walker signed a new landlord-tenant law bill into law. The new law entitled 2015 Wisconsin Act 176 ("Act 176") was published on March 1, 2016 and went into effect the following day - Mach 2, 2016 - which means I am late in drafting this blog post since the new law is almost 1 week old already.

The passage of Act 176 was a culmination of years of work by many groups, including but not limited to, the Apartment Association of Southeastern Wisconsin, Wisconsin Apartment Association, Apartment Association of South Central Wisconsin, and the Wisconsin REALTORS Association.

So let's explore the new law and the changes to landlord-tenant law in Wisconsin.

Criminal Activity:

With the passage of Act 176 a landlord may now terminate a tenancy for criminal activity and/or drug-related criminal activity by serving the tenant (regardless of whether they are under a lease for a specific term or a month to month tenant) with a non-curable 5 day notice. This is a very important change allows a landlord to remove a tenant who has engaged in criminal activity much sooner than they were able to do under old law.

Under the old law, if a tenant was under a lease for a specific term and engaged in criminal activity, the landlord's only option was to serve the tenant with a 5 day notice giving the tenant the opportunity to cure the breach and continue his/her tenancy. The tenant was deemed to have cured the criminal activity merely by not doing it again during the cure period. Pretty simple to do.

So under the old law, a landlord would have to wait until the tenant committed a second criminal act (within the next 12 months) before they could serve the tenant with a 14 day notice terminating their tenancy. It was kind of difficult to protect your other tenants and your property when your hands are tied like that.

There are certain breaches that are so serious that a tenant should not be afforded the opportunity to cure them and remain a tenant -- such as engaging in certain types of criminal activity. At both public hearings before the Senate and Assembly committees I provided testimony of horrible crimes that were committed at my client's properties by tenants which endangered other tenants' lives and caused damage to property. I explained to the committees how legally all my client could do under those circumstances was serve a 5 day notice and wait for the tenant to commit the next crime (and injure the next tenant and damage more property). It was ridiculous not to mention increasing a landlord's liability exposure.

This new law applies to criminal activity or drug-related criminal activity engaged in by the tenant, a member of the tenant's household, or a guest or other invitee of the tenant or a member of the tenant's household, that occurs after March 2, 2016.

While criminal activity is not defined in Act 176 it includes activity that threatens the health, safety or right to peaceful enjoyment of the premises by other tenants, and/or persons residing in the immediate vicinity. It also includes activity that threatens the health and safety of the landlord or an agent or employee of the landlord.

Act 176 defines drug-related criminal activity as any criminal activity on or near or near the premises that includes the manufacture or distribution of a controlled substance. Unfortunately, we were unable to get "use" or "possession" of drugs included in the definition. As such, a landlord will not be able to serve this new non-curable 5 day notice on a tenant that is smoking marijuana in his apartment or one that has crystal meth sitting on his kitchen table.

It is important to know that it is not necessary that the tenant (or their guest, family member or invitees) be arrested or convicted of the criminal activity or drug-related criminal activity in order to serve this new 5 day notice. Many opponents of Act 176 were up in arms about this fact which I didn't entirely understand as even prior to Act 176 becoming law a landlord could evict a tenant for engaging in criminal activity even if they were not arrested or convicted of a crime. All Act 176 did was speed up the process to remove the tenant --- it didn't remove some prior requirement that there be an arrest or conviction. As I stated at the public hearings, this provision mirrors federal law (in section 8 subsidized housing projects) and properly accounts for the realities of crime in larger cities --- police do not have the time to arrest all people who engage in criminal acts and most of the time it is even difficult to send a squad out to the apartment complex to investigate.

This new non-curable 5 day notice for criminal activity has many requirements in order to be valid. Specifically, the notice must include the following:

1. A description of the criminal activity
2. The date on which the criminal activity took place
3. The identity or description of the individual/s engaged in the criminal activity

The notice must also advise the tenant of the following:

1. That they can may seek the assistance of legal counsel, a volunteer legal clinic, or a tenant resource center
2. That they have the right to contest the allegations in the notice before a court commissioner or judge if an eviction action is filed.

If the notice does not contain the aforementioned disclosures and the required detail of the criminal activity there is a strong likelihood that any eviction based on the notice could end up being dismissed.

5 Day Notices for Non-Rent Breaches in Month to Month Tenancies:

Those of you who have attended my Landlord Boot Camp in the past are aware that Wisconsin law prior to Act 176 did not provide a landlord of a month to month tenant with the ability to serve a 5 day notice with a right to cure if the tenant engaged in a non-rent related breach. Under the old law, a landlords only option in that scenario was to serve a 14 day notice terminating their tenancy or ignore the breach altogether. This was just not practical. Not all landlords want to terminate the tenancy of their month to month tenant that engages in a non-rent breach. If a month to month tenant decided to have a loud party, sometimes a landlord would just want to serve a 5 day notice telling them to not do it again but Wisconsin law prior to Act 176 did not allow for this.

With the passage of Act 176, a landlord of a month to month tenant now has the option of serving the tenant who has engaged in a non-rent breach with a 5 day notice with a right to cure OR a 14 day notice terminating their tenancy. This change should also benefit tenants and prevent them from being evicted for smaller-type non-rent breaches.

Service of a 14 Day Notice:

Act 76 made a small change regarding the service of a 14 day notice for a non-rent breach. Under the old law, a landlord had to serve the 14 day notice prior to the tenant remedying the breach. Technically speaking this meant that if a landlord wanted to serve a 14 day notice on a tenant for having a loud party, that notice had to be served before the party was over. Or if the tenant was smoking in a non-smoking building, the landlord had to serve the 14 day notice prior to the tenant finishing his cigarette.

The italicized language has now been removed so that a landlord may now serve the 14 day notice terminating tenancy after the breach has occurred.

Trespassing:

Act 76 created several laws pertaining to an individual that is trespassing on a rental property. I am not a big fan of this change. I am concerned that this will be a trap for the unwary landlord and will end up causing more problems than good, nonetheless I will attempt to summarize the changes.

A "trespasser" is now defined as a person who is not a tenant and who enters or remains in a residential property without the consent of the landlord or another person lawfully on the property (i.e. a tenant).

The crime of trespassing has been modified such that whoever intentionally enters or remains in the dwelling of another, without the consent of some person lawfully upon the premises, or, if no person is lawfully upon the premises, without the consent of the owner of the property that includes the dwelling, under circumstances tending to create or provoke a breach of peace, is guilty of a class A misdemeanor.

Act 176 also requires that a law enforcement agency shall have a written policy regarding the investigation of complaints of trespassing and that the policy shall require that a law enforcement officer who has probable cause to arrest a person for trespassing, remove the person from the dwelling.

The new law also states that if a trespasser is removed from a residential rental property and leaves personal property behind, that the landlord must hold the trespasser's personal property for 7 days from the date of discovery. After the 7 days have passed, the landlord may presume that the trespasser has abandoned the personal property and dispose of it in any manner that the landlord determines is appropriate. A landlord must promptly return the property to the trespasser if the trespasser requests its return prior to disposal.

I am concerned that this new law will cause problems for landlords as I fear it will be relied upon by landlords to remove people that are residing with a tenant (either known or unknown by the landlord) rather then evicting the tenant and their unauthorized guest. I foresee landlords defending themselves against illegal eviction lawsuits or the disposal of personal property lawsuits as a result.

For example, what if a tenant has allowed her boyfriend to move in with her -- whether known or unknown to the landlord -- and then they have a fight and the tenant calls the landlord and being less than truthful states that the boyfriend does not reside with her but came over Saturday night and now refuses to leave. The landlord decides to call the police and have the boyfriend removed as a trespasser. But then, as so often happens, the tenant decides that she cannot live without the love of her life and is mad at the landlord for calling the police and tossing out the "trespasser's" personal property and a lawsuit is filed against the landlord. Whether or not the landlord is able to get the lawsuit dismissed or not is only part of the issue - it will still cost him time and money defending the case and could potentially result in a judgment against him.

Prohibitions Against Local Government:

Act 176 also attempts to curb local government's intrusion into the life of landlords by:

1. Prohibiting the inspection of a rental property unless there was a complaint made about the property or the inspection is part of a program of regularly scheduled inspections conducted in compliance with state or federal law.
2. Prohibiting rental licensing ordinances (i.e. "Landlord Licensing") unless the ordinance applies to ALL residential rental property owners - including owners of owner-occupied rental property.
3. Prohibits an occupancy of transfer of tenancy fee for rental units.
4. Limits the ability to charge re-inspection fees.

While I believe I have addressed all of the landlord-tenant law changes from Act 176 in this blog post, I have by no means addressed all of non-landlord tenant law changes so I encourage you to read the actual law.

NOTE: The changes created by Act 176 will result in some changes to the rental documents that I draft for Wisconsin Legal Blank and will include the need to create of a new 5 Day Notice for Criminal Activity. When those revisions and new forms are ready and available at Wisconsin Legal Blank, I will let you know on this blog.

Landlords Lose Lawsuit Against City of LaCrosse

On August 27, 2014, a LaCrosse County judge ruled against several LaCrosse landlords that had sued the city over its local rental registry and inspection ordinance.

The plaintiffs included 34 landlords with rental property in the city of LaCrosse and attacked the cities ordinance on both constitutional grounds as well as arguing that the ordinance violated state law, specifically Act 76, which became law on March 1, 2014. To learn a more about the specifics of Act 76 with regard to local municipalities see my prior blog post.

Prior to the court's ruling, the city unilaterally eliminated a section of the ordinance that said that a landlords could be denied a rental certificate (i.e. the ability to rent out their rental units) if they did not grant access to the rental unit by city inspectors even if the tenant refuses. The judge had earlier advised the city that he would rule against it on that aspect of the ordinance as being a violation of a person's constitutional right against unreasonable searches. As such the city eliminate that part of the ordinance prior to the judge making a ruling.

According to the judge, the remainder of the ordinance does not violate Act 76.

To learn more about the ruling read this article from the LaCrosse Tribune.

Second Lawsuit Filed Alleging Local Ordinance Violates Wisconsin's New Landlord Tenant Law (Act 76)

I just read in the Wausau Daily Herald today that a second legal challenge has been filed based on Wisconsin's new landlord-tenant law (Act 76). The city of Wausau is getting sued by several local landlords over its Residential Rental Licensing Ordinance which requires that rentals be inspected every three years for compliance with the city's local building codes.

One of the arguments in the lawsuit is that the ordinance is contrary to sec 66.0104, Wis. Stats (which was created by Act 76) and prohibits municipalities from enacting or enforcing certain ordinances that affect landlords and tenants. I have covered this aspect in great detail in a prior blog post.

The first lawsuit was filed in La Crosse by the same attorney that is representing the Wausau landlords.

The Wausau landlords are seeking a permanent injunction to prevent the city from enforcing their Residential Rental Licensing Ordinance.

Act 76 - Wisconsin's New Landlord Tenant Law - Part 6: Alternative Disposition of Property During Eviction

Act 76, has amended sec. 799.45 Wis. Stats., and created new options for a landlord to dispose of a tenant's abandoned personal property after the writ has been executed by the Sheriff and the rental unit has been returned to the landlord's possession.

Under the old law, if the rental property was located in a county with a population greater than 500,000 people, a landlord was required to hire a moving company to remove any of the tenant's property that was determined to be of value. Under the old law, if the rental property was located in a county of less than 500,00 people, a landlord could remove the tenant's abandoned property of value himself but was required to post a bond before doing so, which could be very expensive.

With the passage of Wisconsin's new Landlord-Tenant law, Act 76, a landlord can now remove any of the tenant's abandoned property himself, regardless of the size of the county in which the rental property is located, once the Sheriff has executed the writ and the rental property has been returned to the possession of the landlord, and assuming the landlord has complied with the other requirements of sec. 705.05(5), Wis. Stats.

Many landlords -- as well as the press reporting on the new law -- misunderstood the new law and believed that a landlord was no longer required to involve the Sheriff in the eviction. That is not the case. Act 76 did not remove the requirement of involving the Sheriff. The Sheriff must still be hired to remove a tenant that has not voluntarily surrendered the rental unit and the Sheriff is still necessary to return the rental property to the possession of the landlord.

What Act 76 did was remove the requirement that a moving company be used in larger counties and remove the requirement that a landlord post a bond in smaller counties with regard to the removal and disposal of any belonging left by the tenant.

Under the new law a landlord now has three options to choose from when hiring the Sheriff to forcibly remove a tenant and return the rental unit to the possession of the landlord.

1. The landlord can choose to operate under the old law -- and most of my clients are electing to do this -- and still involve and pay for a moving company. The Sheriff will then remove any tenant still on the premises and return the rental property to the landlord. The moving company will then remove any tenant property of value left behind and take it to a storage facility. The Sheriff will remain at the rental property until the moving company has completed its work.

2. The landlord can choose to hire the Sheriff only. Under this scenario, the Sheriff will remove any tenant still on the premises and return the rental property to the landlord. The Sheriff will then leave. The landlord can then dispose of any tenant property left behind as set forth in sec. 705.05 (5), Wis. Stats. (assuming the landlord has the required language in his rental agreement allowing him to dispose of the abandoned property -- see sec. 704.05(5)(bf) -- and abides by the exceptions to the disposal rules -- see sec. 704.05(5)(am) and (b)).

3. The landlord can opt to hire the Sheriff only but also elect to have the Sheriff stick around while the landlord disposes of the tenant's property (assuming the landlord has the required language in his rental agreement allowing him to dispose of the abandoned property -- see sec. 704.05(5)(bf) -- and abides by the exceptions to the disposal rules --- see sec. 704.05(5)(am) and (b)). This option allows the landlord a greater sense of security as the Sheriff will still be present should the tenant decide to visit. Please be aware however that under this option the Sheriff may have certain requirements that must be followed by the landlord, such as requiring the landlord to have a certain number of people assisting him with the removal of the tenant's property, so that the Sheriff is not sitting around for hours waiting for a single landlord to remove and dispose of a tenant's belongings.

Essentially those are the 3 options that a landlord now has to choose from if it becomes necessary to execute a writ of restitution with the Sheriff. While many counties are still working out the details, the feedback that I have received from the various counties in which I practice, has been that things have been going much more smoothly then the press and tenant advocates had prophesized.

First Legal Challenge As A Result of Act 76 (Wisconsin's New Landlord Tenant Law)

I just read an article on WXOW.com today about what I believe to be the first legal challenge as a result of the passage of Act 76 - Wisconsin's new landlord tenant law.

Two local landlords in La Crosse, Wisconsin are suing the city of La Crosse over its new registration and inspection ordinance which only applies to rental units. Per the article written by Dave Solie of WXOW.com, local attorney Bernardo Cueto filed the suit recently and says the ordinance violates Act 76 because it requires landlords to follow rules not required of other landowners. Mr. Cueto is quoted as saying "Act 76 was designed to promote equality between homeowners and renters and protect renters from unreasonable rules created by local governments and intrusions on their homes and privacy."

Act 76 amended sec. 66.0104, Wis Stats. and prohibits municipalities from enacting or enforcing certain ordinances that affect landlords and tenants, which I have discussed fully in a prior blog post.

The La Crosse Tribune also covered the lawsuit filing.

It will be interesting to see how this plays out as there was a similar ordinance enacted in Wausau recently and of course good ol' Milwaukee has the Residential Rental Inspection (RRI) pilot program which is very similar in nature.

Act 76 - Wisconsin's New Landlord Tenant Law - Part 5: Domestic Violence Notice Langauge & More Prohibited Rental Agreement Provisions

Act 76 has made many changes to Landlord-Tenant law in Wisconsin, some of which I have explained in prior blog posts. One of the biggest changes, which I have not yet blogged about, is the requirement that a landlord include language notifying tenants of certain domestic abuse protections in all rental agreements or addenda as of March 1, 2014.

The required language is set forth in sec. 704.14, Wis. Stats. and must be included verbatim in the rental agreement - it cannot be modified or summarized.

The language that must be included is:

NOTICE OF DOMESTIC ABUSE PROTECTIONS

(1) As provided in section 106.50 (5m) (dm) of the Wisconsin statutes, a tenant has a defense to an eviction action if the tenant can prove that the landlord knew, or should have known, the tenant is a victim of domestic abuse, sexual assault, or stalking and that the eviction action is based on conduct related to domestic abuse, sexual assault, or stalking committed by either of the following:

(a) A person who was not the tenant's invited guest.

(b) A person who was the tenant's invited guest, but the tenant has done either of the following:

1. Sought an injunction barring the person from the premises.

2. Provided a written statement to the landlord stating that the person will no longer be an invited guest of the tenant and the tenant has not subsequently invited the person to be the tenant's guest.

(2) A tenant who is a victim of domestic abuse, sexual assault, or stalking may have the right to terminate the rental agreement in certain limited situations, as provided in section 704.16 of the Wisconsin statutes. If the tenant has safety concerns, the tenant should contact a local victim service provider or law enforcement agency.

(3) A tenant is advised that this notice is only a summary of the tenant's rights and the specific language of the statutes governs in all instances.

Unfortunately many landlords are not even aware of this new requirement. Others complain that this will make their rental agreements 1/2 page longer. Depending on formatting - this very well may be true. Nonetheless, any rental agreements that are entered into or renewed as of March 1, 2014, must include this language. If your rental agreement does not contain this language you your rental agreement will be declared void and unenforceable.

Why is that you ask? Keep reading.

Act 76 also modified and created additional provisions that cannot be included in a Landlord's rental agreement. If a landlord includes any prohibited provision in his/her rental agreement the lease will be void and unenforceable. I affectionately refer to these illegal provisions as the "10 Deadly Sins."

Act 76 created the 10th Deadly Sin which is directly related to the DV protection language discussed above.

A rental agreement will be void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property if it does not also include the new domestic abuse protection language set forth in sec. 704, 14, Wis. Stats.

This is huge. So hopefully any rental agreements that you have entered into since March 1st of this year contain this required language. If they do not, you should immediately create an Addendum to your rental agreement that includes the DV notice language and send it to your tenants immediately so that you are in compliance. If you are using pre-printed rental agreement forms you must insure that they have been updated to include this language. I can assure you that the rental agreement form that I draft for Wisconsin Legal Blank Co. has had this language added. Going forward you only should be using the WLB rental agreement form that has a publication date of 2/17/14 or later.

Act 76 also modified the 9th Deadly Sin which was created by Act 143 (which became law in March 31, 2012). The "old" 9th Deadly Sin stated that a rental agreement was void if it allowed a landlord to evict a tenant as a result of a crime committed in or on the rental property if the tenant could not have reasonably prevented the crime. This language was problematic for many landlords. As such the 9th Deadly Sin was modified in Act 76 to read:

A rental agreement will be void and unenforceable if it contains a provision that allows the landlord to terminate the tenancy of a tenant based solely on a crime being committed if the tenant, or someone lawfully living with them, is a victim of that crime.

Hopefully there will not be any new Deadly Sins created in the near future. If there are, we will end up having more clauses that cannot be included in a residential rental agreement than can be included ; ).

New CCAP Bill Introduced

A new CCAP bill (Senate Bill 526) was introduced on January 30, 2014 by Senators Grothman, Taylor, Schultz, Harris, and Risser. A public hearing has already been held.

Current law allows for any criminal charge to remain on CCAP even if the charge was dismissed.

This new bill, if passed, would require the Director of CCAP to remove a case involving a misdemeanor or felony from CCAP within 120 days after being notified that the case or charge has been dismissed (and not read into the record for the purposes of sentencing the defendant), the defendant was found not guilty, or the case was overturned on appeal and dismissed.

I am a fan of open records and not removing information about open records that are on CCAP. While I personally do not have a problem with a criminal charge being removed if the defendant was found not guilty or the case was overturned on appeal and dismissed, I still believe that doing so still interferes with open records, but I can bite my tongue nonethless.

On the other hand, I have a huge problem (and concern) with a criminal case being removed from CCAP solely because it was dismissed.

Many people unfamiliar with the criminal justice system assume that if a case was dismissed that that means that it was filed in error. While that certainly does occur, that is not the typical situation in which a case is dismissed. The majority of criminal cases are dismissed, not becasue they were impropely filed, but rather because the victim witness did not appear at trial to testify against the defendant and therefore the State could not prove their case. This happens quite often especially in crimes involving domestic violence.

When I was younger (and stupider) I used to do some criminal defense work. I finally quit being a criminal defense attorney after I represented a young man that was charged for the 8th time with Domestic Violence - Battery. It was alleged that he beat up his girlfriend. All 8 times it was alleged that he beat up his girlfriend. I attempted to meet with my client to prepare for trial. He refused, just smiled, and told me that it was not necessary. I told him that I could not represent him properly if we didnt prepare. He told me again not to worry and that there would not be a trial. I reminded him that there was a "no contact" order in place and that he was not allowed to contact the alleged victim so how would he know if she was or was not going to appear in court to testify against him. He smiled and said he would never do anything against the law.

The trial date came and the victim did not show. As a result the District Attorney was forced to dismiss the charge against my client as without the victim the DA could not meet their burden. My client smiled at me and said "See, I told you you didnt need to worry - no trial." He then walked out of the court room.

Even though I was young and stupid, I was not naive. I knew very well that this individual most likley had talked to the victim and either threatened to harm her if she came to court to testify against him or he actually did harm her to make sure she understood. The same thing probably happened the prior 7 occassions as well.

I would not want to rent to this person.

Under this new CCAP bill, those 8 criminal charges for DV-Battery against my client would be removed from CCAP and a future landlord would not even know they had been filed or that s/he would be renting to a person that felt it was acceptable to beat up his girlfriend whenever he couldn't control his anger management issues.

If you have similar examples from propspective rental applicants that you have screened recently, please forward the details to me directly at tpettit@petriepettit.com. Let's make sure the politicians are aware that this type of behavior does actually occur and how it may hurt our industry, if such a law is passed.

Thanks

T

Revised Wisconsin Legal Blank Forms Will Be Available on Monday, February 17th

As I hope most of you are aware, Wisconsin passed a new law that will great affect landlord-tenant law - Act 76. Whenever the law is changed, there is usually a need to revise and/or update your rental documents to comply with the law. That is definitely the case with the changes from Act 76.

As such, I have had to update many of the rental documents that are sold at Wisconsin Legal Blank.

The new law becomes effective March 1, 2014. So for those of you that use the WLB forms you will want to use these revised forms for any new tenancies that commence on or after March 1, 2014.

The following Wisconsin Legal Blank forms have been revised:

1. Residential Rental Agreement (#19)

The changes made to this form are very important. As of March 1, 2014, it will be required that all residential rental agreements include certain language that provides notice of domestic abuse protections. Act 76 states that a rental agreement will be void and unenforceable if it allows a landlord to terminate a tenancy for a crime and the rental agreement fails to include the domestic violence notice language. As a result of having to add this additional language verbatim the Residential Rental Agreement form will be much longer.

Several other changes and modifications were made to this form as well including:

a. Revision of the "Extermination Costs" section

b. Addition of a "Non-Waiver" section

c. Addition of a "Criminal Activity Prohibited" section

d. The "Notice to Vacate" section was modified to clarify the law better regarding terminating a lease for term. The 30 day notice required to terminate a month to month tenancy was changed to 28 days to coincide with Wisconsin statutes.

e. The "Abandoned Property" section was modified to comply with the law changes in Act 76

f. Additional language was added to clarify that operating a business or providing child care services are not allowed in the rental unit.

g. Additional language was added in the section entitled "Security Deposit" to state that if the repair costs for tenant damages are not known in time for the sending of the security deposit transmittal letter that a "good faith" estimate may be used.

f. Clarifying language was added to the "Breach and Termination" section.

2. Residential Lease Renewal or Notice To Vacate (#970) -- Was updated to comply with Act 76's changes regarding abandoned property.

3. Notice of Rent Increase (for Month to Month Tenant) (#332) - Was updated to comply with Act 76's changes regarding abandoned property.

4. Check-In / Check-Out Sheet (#997 and #993) -- Was updated to to comply with Act 76 with regards to the title and the "When To Use" explanation as well as some stylistic changes.

5. Rental Application (#996) - Eliminated some sections that were not needed and could possibly cause problems for landlords, added some additional instructions for applicant, restructured the layout of the form, and reworded much of the language at the bottom of the signature page.

6. Nonstandard Rental Provisions (#984) -- Rewrote the "When To Use" section to better explain the purpose of a NSRP document, removed the "Miscellaneous Matters" section of the form, revised the statutory references, and fixed some grammatical issue.

I can't stress enough how important it is to use updated/revised forms when they become available. I still see landlords using the Residential Rental Agreement that was drafted over 10 years ago. There are important reasons that rental documents are updated: (1) To comply with law changes, (2) To eliminate problem language that has caused landlords problems. Each new version of these forms are supposed to make your life easier. Using old forms is just an invitation for problems. Effective, March 1, 2014, failing to use the revised Residential Rental Agreement may result in your Agreement being declared void and unenforceable.

T

AASEW Meeting: Come Learn About The New Landlord-Tenant Law (Act 76) on Feb. 17th

As many of you know I have been blogging over the past month or so about aspects of the new Landlord-Tenant law that goes into effect on March 1, 2014. Well, I will continue to blog about the new law in the future, but if you would prefer to learn all about Act 76 in its entirety you should plan on coming to the next AASEW monthly meeting on Monday, February 17, 2014 at 7 pm at the Best Western in Brookfield.

Atty. Heiner Giese and myself, both of whom were actively involved in the drafting of this new law, will be presenting the new law in its entirely at this meeting. I will be handling out my outline/summary of the new law as well and Heiner will be handing out copies of the new language that MUST be included in all residential real rental agreements as of March 1, 2014.

In my opinion, this will be the single most important AASEW meeting of the year. So you will not want to miss it.

Attendence at the meeting is free for current AASEW members or $25 per person for non-members (if you join the AASEW at the meeting the $25 fee will be credited to your membership). If you would like to join the AASEW ahead of time so that you can more quickly find a seat for the meeting you should call Betzi at 414-276-7378 prior to the meeting.

I look forward to seeing everyone there.

T

Act 76 - Wisconsin's New Landlord-Tenant Law - Part 4: Who May File An Eviction and Who May Appear In Court

Act 76 which will become effective on March 1, 2014 has changed Wisconsin law with regard to who may file an eviction action and who can appear in court to prosecute an eviction.

Current law only allows the person or entity "entitled to the possession of the property" to file an eviction action. Typically this would be the owner of the rental property. As such, a management company or another third party cannot currently be named as the plaintiff in an eviction action -- only the owner can.

In the past, the Milwaukee County Court Commissioners where monitoring this issue closely, even going so far as to look up the tax bill for the rental property online while the case was in court to insure that the named plaintiff in the eviction lawsuit was the owner named on the tax bill. If they were not, the case would either be dismissed or adjourned to allow the owner to be substituted as the plaintiff and appear in court.

Act 76 will amend sec. 799.40(1), Wis. Stats., and as of March 1, 2014, an eviction lawsuit may be filed by either:

1. The person entitled to possession of the property (i.e. owner), OR

2. An agent of the person entitiled to possession of the property as long as they are authorized to do so in writing.

So in the very near future, it will be legal for a property management company to file an eviction lawsuit on behalf of one of their clients (the owner) as long as the owner has authorized the property management company to do so in their management contract or a separate writing.

Similarily, Act 76 will also change who may appear in court to represent the named party in an eviction action.

Current law allows a person entitled to possession of the property (which can be a person, business entity, trust etc.) to appear by the person himself or herself, an attorney, or a full-time employee. As a result, landlords that had transferred their rental properties into a LLC (limited liability company) for liability protection were required to appear in court by an attorney unless they could prove that they were a full-time employee of the LLC (which was typically not the case).

So under current law, if an LLC was the owner of the rental property -- and thus was required to be the named plaintiff -- it could only appear in court through a lawyer. A member of the LLC, even if it were a single member LLC, could not appear in court to represent the LLC. To those of you who understand the basics of what is referred to as the "corporate fiction" of a business entity and understand that a business entity (even a sole member LLC) is distinct and separate from the individual person, this made sense. Nonetheless, from a practical perspective it was frustrating to many smaller landlords that had opted to move their rental real estate into a LLC that they could no longer appear in court to prosecute an eviction.

Act 76 has eliminated the requirement that the person be a full-time employee of the business entity in order to appear in court on its behalf.

As of March 1, 2014, it will be acceptable for a party in any small claims lawsuit to appear in court by himself/herself, by an attorney, by a member (as defined in sec. 183.0102(15), Wis. Stats.), by an agent, by an authorized employee of the person, or by an agent of the member or an authorized employee of the agent.

So pretty much anyone can now appear in court to represent an owner or management company on an eviction as of March 1, 2014.

It is important to remember that this law change applies to all small claims actions, not just evictions. So this change will affect small claims collections lawsuits, replevins etc. Additionally, the new law applies to ALL parties - not just landlords. So a tenant will now also be able to appear in court by an agent or authorized employee.

While I am no Nostradamus, I think it is fair to say that this particular change in the law will result in bit of confusion and congestion in eviction court. It may also result in some eviction cases being dismissed if the landlord does not have a firm grasp of landlord-tenant law and small claims procedure. For those of you that are interested in appearing in court yourself, I would reccomend that you educate yourself accordingly. Attending the AASEW's Landlord Boot Camp on March 8, 2014, to insure that you know what you are doing would not be a bad idea.

And for those of you that have better things to do than waste an afternoon sitting in eviction court, you still will have the ability to hire an attorney to represet you ; )

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

Governor Walker Signed 2013 Wisconsin Act 76 (SB 179) Into Law Today

2013 Wisconsin Act 76 (SB 179) was signed into law today, December 12, 2013, by Governor Scott Walker in his office at the Capital building.

Many people attended the signing, including myself. It was the first law signing that I have ever attended and was very intersting. I was able to get a photograph with the Governor, had him sign a copy of his new book (a Christmas gift for my mother) and even received a pen that was used to sign a portion of the new law.

I learned after the signing that the pens that are handed out to the attendees at a law signing are each used to sign at least some part of the new law. So for example one pen is used by the Governor for his signature. Another pen is used to write the "D" in the date "December". Another pen is used to write the "e" in "December" and so on and so on. It was humorous watching him pick up each pen and write something then put it down and pick up another pen, write something, put in down . . . and so on and so on.

So Act 76 (I'm so used to calling it SB 179 that it will take some time to get used to the new name) was enacted today (Dec. 12, 2013) and will be published tomorrow (Dec. 13, 2013). The law will become effective on March 1, 2014, except for the section on towing which will become effective on July 1, 2014.

Congratulations to everyone that worked on this new law! Here is a link to Act 76.

T