Back To Basics - Notices Terminating Tenancy

By Atty. Gary D. Koch

A previous post discussed methods of service of notices terminating tenancy, leaving a discussion on the various notices that can be utilized for a later post. Welcome to that post!

When a landlord is in a situation where a tenancy needs to be terminated, the landlord must provide the tenant with a notice terminating the tenancy. This termination can be for a variety of reasons, or no reason at all (so long as the underlying termination is neither retaliatory nor discriminatory). The type of notice available to the landlord depends on the type of tenancy, as well as the reason for the termination. Wisconsin Statutes § 704.17 and § 704.19 provide the framework for notices.

For month-to-month tenancies, the landlord has the most options available for termination of the tenancy. The landlord can choose, upon the first breach (be it for failure to pay rent or any other non-rent breach) to issue to the tenant either a 5-Day curable notice terminating the tenancy, which gives the tenant the option to cure the breach or vacate, or a 14-Day non-curable notice terminating the tenancy, which only gives the tenant the option to vacate the unit. (Wis. Stat. § 704.17(1p)). The landlord can also issue a 28-Day notice terminating the tenancy for any reason, or no reason, so long as the termination is not for retaliatory or discriminatory reasons. (Wis. Stat. § 704.19(2) and (3)). With a 28-Day Notice, the tenancy must terminate at the end of a rental period, which is typically the end of a month.

For tenancies for a term of a year or less, or year-to-year tenancies, the landlord has the same available notices, but restrictions on when some can be given. In the instance of either a rent or non-rent breach, the landlord must first issue a 5-Day curable notice terminating the tenancy, giving the tenant the right to cure the breach. If the tenant does not cure or vacate, the landlord can start an eviction action. If the tenant cures or is otherwise allowed to remain in the premises after receiving a 5-Day curable notice, and if the tenant commits the same type of breach (either the failure to pay rent or some non-rent breach) within one year of the first breach, then the landlord can issue a 14-Day notice terminating the tenancy which does not provide the tenant the right to cure. (Wis. Stat. § 704.17(2)). The landlord can also issue a 28-Day notice terminating the tenancy, but that MUST terminate the tenancy at the end of the lease term.

For tenancies longer than a year, absent a contrary provision in the lease, the landlord must issue the tenant a 30-Day notice for any breaches (rent or non-rent). (Wis. Stat. § 704.17(3)). For these tenancies, the lease can provide for an alternative method of termination, so most leases for tenancies longer than one year make reference to the 5- and 14-Day methodology and statutes outlined above, so as to make such notices more akin to a notice to terminate a tenancy for a term of a year or less.

For ALL types of tenancies, the landlord can issue a 5-Day non-curable notice if the property is deemed a nuisance due to drugs or criminal gangs. (Wis. Stat. § 704.17(1p)(c), (2)(c) and (3)(b)). For ALL types of tenancies, the landlord can also issue a 5-Day non-curable notice in situations of criminal activity. (Wis. Stat. § 704.17(3m)(b)). Finally, for ALL types of tenancies, the landlord can issue a 5-Day non-curable notice where a tenant (or child of a tenant) faces an imminent threat of serious physical harm from another tenant if that tenant were to remain on the premises, and the threatened tenant provides necessary documentation substantiating that threat. (Wis. Stat. § 704.16(3)(b).

Because of the CARES Act, if the property is a “covered entity”, certain notices must provide the tenant with 30 days to act. It can make the terminology a bit more confusing, but the type of notice which can be given (curable, non-curable, termination) has not been changed because of the CARES Act.

For subsidized tenancies, there are different regulations which must be followed, so this blog post is targeted towards market rate rental units only.

As always, feel free to reach out to Petrie + Pettit for any assistance in determining which notice is the proper notice to issue, or for any other landlord/tenant matters.

Back to Basics – Service of the Notice Terminating Tenancy

Drafted by Attorney Gary D. Koch of Petrie + Pettit S.C.

Unfortunately, landlords sometimes find themselves in the situation where they have to terminate the tenancy of a residential tenant. There are a variety of notices that can be used to do so, and that is a topic for another day. This post is on how to serve a notice terminating tenancy.

Wisconsin Statue §704.21 delineates the methods by which a landlord can serve a notice on a tenant. Among the options are personal service, substitute service, posting and mailing after diligent attempts at personal or substitute service, sending certified or registered mail, or by any other method authorized by Wis. Stat. §801.11 for service of a summons. For most landlords, the most effective means of service of the notice is via certified or registered mail.

Wis. Stat. §704.21(1)(d) authorizes service of the notice terminating tenancy by “mailing a copy of the notice by registered or certified mail to the tenant’s last-known address.” There is no requirement that the tenant actually receive the notice, simply that the landlord mail the notice via certified or registered mail to the tenant’s last-known address. Most landlords opt to wait the extra two days (see Wis. Stat. §704.19(7)) required for the certified / registered mail service because “I never received the notice” is not a defense to service under this section. The notice need only to have been sent via certified or registered mail to the tenant’s last-known address.

Furthermore, with the 2017 amendments to the eviction statutes (via 2017 Wisconsin Act 317), the Wisconsin Legislature created Wis. Stat. § 799.40(1)(g), which provides that if a landlord serves a notice terminating tenancy via certified or registered mail, that “proof of certified mailing from the United States post office shall be sufficient to establish that proper notice has been provided for the purpose of filing a complaint or otherwise demonstrating that proper notice has been given in an eviction action, and an affidavit of service may not be requested to establish that proper notice has been provided.” It is clear that the Wisconsin Legislature supports (arguably even encourages) service of notices terminating tenancy via certified or registered mail.

With all of this said, if a tenant does not actually receive the notice, though, the action specified in the notice is unlikely to occur. For example, if a tenant owes rent but never receives the notice sent via certified mail, the tenant is less likely to pay the outstanding rent owed than if the tenant had actually received the notice. Because landlords want the tenant to get the notice and perform accordingly, many landlords also send a copy of the notice via First Class U.S. Mail, as well. THIS IS NOT A REQUIREMENT OF THE STATUTES FOR PROPER SERVICE, but rather helps foster communication between landlords and tenants. It is often much less burdensome for all if the tenant actually receives the notice and performs accordingly, rather than having to move forward with an eviction.

If you have an instance where you are required to serve notice, it is important to do it properly. Petrie + Pettit can certainly help ensure compliance. Feel free to reach out to us!

New & Revised Landlord-Tenant Forms Available at Wisconsin Legal Blank

As a result of 2015 Act 176 becoming law earlier this month it became necessary to draft and/or revise some of the landlord-tenant forms sold at Wisconsin Legal Blank Co., Inc.

As of March 24th the following revised or new forms will be available at WLB:

• 5 Day Notice To Vacate for Criminal Activity or Drug-Related Criminal Activity

This new notice may be served on a tenant, under any tenancy, if the tenant, a member of the tenant's household, or a guest or other invitee of the tenant or of a member of the tenant's household, has engaged in criminal activity or drug-related criminal activity. The notice cannot and should not be served on a Tenant who is a victim, as defined in Wis. Stat. § 950.02(4), of the criminal activity. It is not necessary that the tenant have been arrested for or convicted of the criminal activity or drug-related criminal activity in order to serve this notice.

For more information on the new law regarding criminal activity in rental housing refer to my blog post summarizing Act 176.

• 5 Day Notice To Vacate for Imminent Threat of Serious Physical Harm

This notice has nothing to do with Act 176. I had never drafted this form in the past because as there did not seem to be a demand. In the last few months I have had many clients encounter domestic violence issues amongst their tenants such that the victim of the domestic abuse has requested that the landlord remove the abuser, and therefore I thought I better create the form.

• Residential Rental Agreement

The biggest change to this form is the inclusion of language regarding criminal activity and drug-related criminal activity on the rental premises as set forth in Wis. Stat. 704.17(3m) as created by Act 176.

I also added a new clause which addresses the non-liability of the landlord in certain circumstances and another clause prohibiting modifications to the premises by the tenant without prior written approval by the landlord.

I also made some smaller changes as a result of the passage of Act 176 which most likely will not even be noticed but are important. Finally, I removed the language that said rent is "due" by a specific date and replaced it with rent "must be received by" a certain date. modified that rent must be "received by" a certain date.

In order to fit the above changes into the form it became necessary to remove the "Co-Signer/Guarantor" section of the Rental Agreement. I am in the process of creating a separate Personal Guaranty Addendum with beefed up language.

I am currently working on the following forms which are not yet available. When they become available I will let you know via this blog.

• A table that summarizes all of the various notices in Wisconsin and when to use each one
• A revised Nonstandard Rental Provisions form
• A Smoking Policy Addendum
• A Personal Guaranty Addendum
• A Bed Bug Addendum
• A basic Commercial Lease

GUEST POST: An Important Eviction Case Heard By Wisconsin Supreme Court

An important eviction case heard by the WI Supreme CourtAttorney Heiner Giese on behalf of the Apartment Association filed an Amicus brief with the WI Supreme Court supporting the City of Milwaukee Housing Authority in their case against Cobbs. This case was heard by the Supreme Court yesterday.Basically the case revolves around the federal “one strike and you're out" rule for Section 8 housing and the state of WI's notice requirements for lease violations. The tenant advocates did a good job in selecting a sympathetic case to proceed on.As most of you know*, in WI you must give a tenant under a lease for a term a five day notice with right to cure for the first lease violation within the term of that lease. This is fine if perhaps they are a bit noisy one time. However it fails when there is a criminal act. Justice Gableman asked the Legal Action attorney to explain how 1st Degree murder be cured as long as the tenant doesn't do it again.A link to the oral arguments in front of the Supreme Court is at:http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?evhdid=9392WI's laws on lease violations are generally goofy. You have to give a tenant the right to cure for lease violations including criminal acts under a lease for a term, but you are not permitted to use a 5 Day Breach with right to cure for a month to month tenant even for minor lease violations. So when your month to month tenant has the radio too loud you have to either ignore it or give them a 14 Day without a right to cure.One of our Association's legislative initiatives for 2015 is to change the law to permit a 5 Day with right to cure for month to month tenants as well as allowing for a notice with no right to cure for criminal acts regardless of the length of the rental agreement.Tim Ballering

Top 10 Pitfalls That Landlords Should Avoid

Those of you that missed the last AASEW membership meeting on Monday, April 15, 2013, missed a great meeting and a great presentation. The featured presenter was John "Dr. Rent" Fischer, a Wausau-area landlord and rental property manager, who spoke to a packed house that Monday. John's presentation was dynamic, educational and at times pretty darn funny.

With John's permission, I am providing you with a link to John's handout from the meeting which was entitled "Top Ten Pitfalls That Landlords Should Avoid."

Like any good Top 10 list (a la David Letterman), John presented these pitfalls in reverse oreder based on importance. The pitfalls to avoid included:

10. Mailing the 5 Day Notice

9. Digging The Hole Too Deep

8. Incomplete Applications

7. Not Asking The Right People (about your rental applicant)

6. Auto-Renewing A Lease

5. 14 Day Notice (or NOT)

4. "Do-It-Yourself" Leases or Rental Forms

3. Misuse of CCAP

2. Carpet Cleaning

1. That Lease is HOW LONG?

As John stated during his presentation, there are a lot of things that are beyond our control that make life as a landlord very difficult at times. As such, we certainly do not want to make life more difficult for ourselves based on a lack of knowledge of landlord-tenant laws . . . unless we are masochists, that is.

The AASEW has another great meeting scheduled for May 20, 2013 at 7 pm at the Best Western Midway in Brookfield about "How To Finance Real Estate Transactions In The Current Economy."

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

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

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

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

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

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

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

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

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

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

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

Let me explain.

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

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

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

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

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

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

So proceed with caution.

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

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

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

1. Residential Rental Agreement (Form #19)

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

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

- Correction of some grammar and punctuation mistakes.

2. Nonstandard Rental Provisions (Form #984)

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

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

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

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

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

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

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

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

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

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

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

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

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

- Added a line for "Total Amount Due"

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

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

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

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

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

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

- Added a line for "Total Amount Due"

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

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

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

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

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

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

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

13. Rules & Regulations (Form #994)

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

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

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

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

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

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

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

Here is the language at issue:

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

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

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

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

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

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

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

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

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

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

Q&A: What A Landlord Should Do If Tenant Gives An Improper 28 Day Notice

Every now and then I like to highlight a question or comment that I receive on this blog that I think is especially educational. I recently received a great question from Peter which I have decided to reproduce as a blog post so that more people can view it and become better educated on the topic.

This specific question has to do with a month to month tenancy in which the tenant has served the landlord with an improper 28 day notice as the termination date does not coincide with the end of a rental period (i.e. end of the month) as required under Wisconsin Statute sec. 704.19.

Attorney Pettit,

This may be a little off subject, but I was hoping you could explain what a landlord's responsibility is when a tenant serves their landlord with a notice terminating their tenancy, but specifies an inaccurate termination date in the notice.

For example: a periodic tenant serves a 28 day notice to their landlord on 04-01-2012 terminating their tenancy on 05-05-2012. The notice was served with the proper length of time under Stat. 704.19(3), but it did not terminate the tenancy at the end of a rental period as required by Stat. 704.19(2)(b)1.

I know Stat. 704.19(5) says that such a notice would be valid, but would not be effective until the first date which could have been properly specified - i.e. May 31, 2012. My concern is the second-to-last sentence in Stat. 704.19(5) that says the party to whom the notice was served may “elect to treat the date specified in the notice as the legally effective date.”

Does that sentence mean the landlord has an obligation to inform the tenant that the termination date in their notice was inaccurate and will not be effective until May 31? If the landlord does not inform the tenant that the termination date in their notice was ineffective, could that be construed as the landlord’s “election” to treat the inaccurate date as the legally effective date?

There is no explanation in the chapter which describes what constitutes an “election” in this circumstance and that sentence seemingly creates an enormous loophole through which tenants can escape their responsibility to give a proper notice to vacate. Any thoughts or information you have on this matter are greatly appreciated. Thank you.

-----

Peter - Thanks for your question. Plese feel free to call me Tristan : )

You have cited the proper Wisconsin Statute that is applicable for this issue - 704.19. Sec. 704.19 is really the only guidance that we have on the issue. I am not aware of any caselaw interpreting 704.19 in Wisconsin.

I interpret the statute to mean that you, the landlord, can choose to accept the defective notice as it is and relieve the tenant for responsibility for rent after 5-5-12. If you do not want to accept the defective notice and relieve the tenant of responsibility as of 5-5 then I think it would be necessary to point out the tenant's error to the tenant, preferably in writing, to avoid an "waiver" argument that might be made by the tenant.

Each court (each judge, each court commissioner) is able to interpret the statute and the term "election" as they wish and to determine if you, the landlord, waived your right to the entire month's rent by failing to bring the tenant's error in the notice to his/her attention.

I don't know whether or not a court would decide that if you failed to bring the defective notice to the tenant's attention that you waived your right to collect the full month's rent. But sxperiencing how tenant-friendly many Wisconsin courts are, I wouldn't want to take the chance. To be safe -- and to "CYA" -- I would assume that a tenant might make the "waiver" argument and that a court could might make a ruling that because you did not bring this discrepency to the tenant's attention, that you waived your right to the full rent amount for May 2012.

From a practical standpoint, if I received an improper 28 day notice from a tenant, I would call the tenant and politely explain to them why the notice was improper and what the legal ramifications are --- that they are "on the hook" for all of May's rent. I would then follow that telephone call with a letter memorializing the discussion and explaining why the tenant's 28 day notice was improper-- explaining that the 28 day notice must coincide with the end of a rent paying period per 704.19(2)(b)(1).

Next, I would include in my letter that had the notice been drafted properly, that the tenant would be responsible for rent through the last day of the month - May 31st. I would then tell the tenant that you will treat the notice as effective on the last day of the month and remind them that while they can leave before the last day of the May that they are responsible for the full month's rent.

I would then wait and see what the tenant does.

Hopefully, after your explanation and showing them the statute, the tenant will understand that they made a mistake and pay you the entire month's rent.

If the tenant doesn't pay you any rent or only pays rent for 5 days of May, you should "5 day" them and then decide if you want to retain a portion of their security deposit to cover the rent that they are legally responsible for paying or if you would prefer to return the security deposit (to avoid any potential chance of the tenant being awarded double damages and attorney's fees) and sue them in a small claims (non-eviction) action for the rent they owe. There are pros and cons to either option and I am not suggesting one over the other but as I see it those are the two options that you have.

Thank you for your great question.

You Will Not Want To Miss AASEW's Fourth Annual Landlord Boot Camp on Saturday Feb. 25th

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

The Apartment Association of Southeastern Wisconsin's Fourth Annual “Landlord Boot Camp” can help you navigate these treacherous waters and teach you how to run your properties with greater profit and less hassles.

I have given similar landlord-tenant law seminars to fellow attorneys, landlords, and property manager organizations throughout the state for other state-wide semianr companies that charge attendees $300-$400. This is your opportunity to learn all of the same information at a huge discount through the Apartment Association.

Who: Taught by Attorney Tristan R. Pettit (who drafts the landlord tenant forms for Wisconsin Legal Blank)

When: Saturday, February 25th, 2012. 8:30 am – 5 pm

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

Included: 100 plus page manual/outline to help you put what you learn into practice plus helpful forms.

Cost: $159 for AASEW members and $249 for non-members. If you are not a member of AASEW but are a member of another landlord/apartment association the cost to attend will be $199.

Specials: Not a member? Pay just a dollar more and enjoy a 2012 AASEW membership.

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

Sign up by going to the AASEW's Landlord Boot Camp landing page where you can sign up online and pay via PayPal.

What you will learn at the Apartment Association's 2012 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, including:

1. How to properly screen prospective tenants.
2. How to draft written screening criteria to assist you in the selection process and protect you from discrimination complaints.
3. How to comply with both federal and state Fair Housing laws including how to handle with “reasonable modifications” and “reasonable accommodations” requests.
4. How to legally reject an applicant.
5. What rental documents you should be using and why.
6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
8. When you are legally allowed to enter your tenant’s apartment.
9. How to properly draft an eviction summons and complaint.
10. What to do to keep the commissioner from dismissing your eviction suit.
11. What you can legally deduct from a security deposit.
12. How to properly draft a security deposit transmittal / 21 day letter.
13. How to handle pet damage.
14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).

. . . and much more. There will also be time for questions and answers.

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

Last year’s AASEW Landlord Boot Camp was filled to capacity and we even had to turn a few people away. So call early to reserve your spot.

Call the Association at (414) 276-7378, email membership@apartmentassoc.org or go to our Landlord Boot Camp landing page to sign up online and reserve your spot.

Remember that “landlording” is a business — so take the time to educate yourself on how to better manage your business and avoid costly errors!

Don't Miss the 2nd Annual East Side Landlord Think Small Conference on Wednesday November 9, 2011

I will be the featured speaker at the upcoming East Side Landlord Think Small Conference on Wednesday, November 9, 2011 from 3 pm - 6:30 pm at UW-Milwaukee, Chapman Hall located at 2310 E. Hartford Avenue, in the Regent's Room on the 2nd floor.

This conference is FREE to any and all interested landlords, with a special focus on Milwaukee's East Side landlords.

This conference is composed of 3 componants:

1. Featured Speaker - I will be speaking on the issues of "Causes for Eviction and Termination of Tenancy" and "Notices Terminating Tenancy." You will learn about the 4 basic notices that can be served on a residential tenant in Wisconsin (5 day, 14 day, 28 day and 30 day notices) and when you should be using each notice and why. While no one wants to have to evict a tenant . . . sometimes it is necessary. At the very least, landlords need to become comfortable with the various notice that can be served on a tenant when a tenant breaches his/her rental agreement or the landlord wants to terminate the tenant's tenancy. I will also discuss the proper way to serve a tenant with one of these notices. I will be handing out a detailed 11 page outline on this topic that attendees can take home to refer to when needed in the future. Examples of properly drafted 5 day, 14 day, 28 day, and 30 day notices will also be distributed.

2. Round Table Discussion - This discussion will include a panel of UW-Milwaukee staff, City of Milwaukee staff, myself, and others and will focus on local topics and common problems that East Side landlords encounter.

3. Panel of Experts - The panel will be comprised of members of the Milwaukee Police Department, Campus Police Department, Department of Public Works, Department of Neighborhood Services, and UW-Milwaukee Department of Neighborhood Housing and who will field any questions that you may have.

There will also be time to network with other landlords.

If you are interested in attending please RSVP to Heather Harbach, UW-Milwaukee Neighborhood Relations Liason at (414) 229-4451 or harbach@uwm.edu. You can also register for the event by clicking here.

I hope to see everyone there!!

Crime-Free Lease Bill On The Horizon

On September 12, 2011, on behalf of the AASEW, I traveled to Madison to meet with the Wisconsin Rental Housing Coalition, several legislators’ aides, and an attorney from the Legislative Reference Bureau to assist in the review of and drafting of a new piece of legislation that will greatly affect residential landlords.

Not yet a bill, this proposed legislation is referred to as LRB-2098/1 or informally as the “Crime-Free Lease bill.” Initiated by fellow landlord and South Milwaukee Police Officer Brian Fleming, this legislation if passed, will change current Wisconsin law to allow a landlord to terminate the tenancy of any tenant (even those under a lease for term) that engages in criminal activity in their rental unit or on the rental property. A new type of 5 day notice would be created under this legislation which would not allow the tenant the opportunity to cure the breach and stay. It would basically be a “1 strike” law similar to what is in place in federal Section 8 site-based housing.

Criminal activity under the proposed legislation would be defined as any act or behavior that is punishable in Wisconsin by a fine or period of imprisonment or that is a violation of a municipal ordinance.

If the tenant fails to vacate the unit after being served with this new 5 day notice, the landlord would still be required to prove the criminal activity in eviction court.

The impetus for this legislation was the National Crime Free Lease Addendum that has been adopted and used in many counties outside of Wisconsin. Under this initiative, a tenant agrees not to engage in criminal activity on the rental property -- or allow any of their guests to do the same -- and signs a contract with the landlord to that effect. If the tenant or the tenant's guests engage in the prohibited criminal activity, they agree to vacate the property upon notice by the landlord.

Current law in Wisconsin conflicts with the Crime Free Lease Addendum as tenants under a lease for a specific term, must be afforded the opportunity to correct the breach and remain a tenant the first time that they violate their lease -- even if that violation is a crime.

Sec 704.17(2)(b) of the Wisconsin Statutes, allows a tenant under a lease who engages in criminal activity, to remain a tenant as long as s/he ceases the criminal activity within 5 days of being served the notice of breach. Thus, a landlord can be stuck with a tenant that he knows engages in criminal behavior until that tenant commits a second crime and can be served with a 14 day notice (which does not afford the tenant the opportunity to "cure" the breach and remain a tenant).

This puts Wisconsin landlords in a very difficult position and opens them up to liability. It also prevents a landlord from protecting his/her other tenants from the tenant that is engaging in criminal activity.

Once the bill is officially introduced and has obtained co-sponsors I will let you know so that you can begin calling and writing your state representatives to encourage them to vote in favor of this very important legislation.

FREE Landlord-Tenant Law Seminar - September 24th, 2011

I wanted to let you know about a FREE landlord-tenant law seminar that I will be presenting for the City of Milwaukee on Saturday, September 24, 2011.

The seminar will start at 9am and run through 11:30 am or so. It will be held at the Anderson Building which is located at 4001 S. 6^th Street – 3^rd floor in Milwaukee.

I will be covering three main topics:

1. Causes for Eviction (including the 5 day, 14 day, 28 day and 30 day notice and under what circumstances you can serve each one)
2. Notices Terminating Tenancy (how to draft them properly and how to serve them legally)
3. The Judicial Eviction Process (everything you need to know about how to draft and file an eviction lawsuit and what you will need to present to the court to

   prove your eviction as well as your collection of past-due rent, damages,

   holdover damages etc.)

If you are interested in attending this seminar pre-registration is required so you will need to contact Jeanne Hagner at (414)286-2954 or jhagne@milwaukee.gov

It is necessary that you register so that we can insure that there will be enough outlines and handouts for everyone.

I hope to see many of you there.

5 Day Notice Terminating Tenancy for Drug or Gang Nuisance In Wisconsin

I thought I would try something new with this blog post. I've embedded a video clip from a seminar that I have given in the past. Let me know what you think.

This clip focuses on a very specific -- and often misunderstood -- type of 5 day notice in Wisconsin called a 5 Day Notice for gang and/or drug nuisance.

There are only very specific instances in which a landlord is legally allowed to serve a tenant with a 5 Day Notice for Drug/Gang Nuisance --- the video clip above explains when this special type of notice can be used.

A 5 Day Notices for Drug /Gang nuisance does not allow the tenant the ability to cure the breach. Gang/Drug nuisance notices are the only 5 day notice in Wisconsin that does not allow the tenant the opportunity to cure the breach.

Click here for a printable table that summarizes the various types of notices that a residential landlord in Wisconsin can serve on his tenant.

If you need more information on how to serve a notice on your tenant, including the 5 Day Notice for Drug/Gang Nuisance, you should refer to my earlier post on that topic.

If you would like to learn more about landlord-tenant law please consider attending Landlord Boot Camp which is sponsored by the Apartment Association of Southeastern Wisconsin, Inc. I will presenting this all-day seminar on Saturday, February 26, 2011 from 8:30 am - 5:30 pm. Contact Paulette at 414-276-7378 or paulette@apartmentassoc.org to register.

Notices Available To Landlords In Residential Tenancies

There are several types of notices that a landlord can serve on a tenant when a landlord wishes to terminate the tenancy or when a tenant commits a breach of their residential rental agreement. Most of these notices can be used in both periodic tenancies -- like a month to month -- and a lease for term -- like a 12 month lease -- but under different situations. But there are some notices that can only be used in a periodic tenancy and others that can only be used in term leases.

In an effort to clarify under what circumstances you can use each notice I have put together this table for your reference.

	LEASE FOR TERM (i.e. 1 year lease or less)	PERIODIC TENANCY (i.e. month to month)
5 Day Notice To Pay Rent or Vacate	Yes (Sec. 704.17(2)(a), Wis. Stats.	Yes (Sec. 704.17(1)(a), Wis. Stats.)
14 Day Notice Terminating Tenancy For Failure To Pay Rent	Yes but only if tenant served with 5 Day Notice To Pay Rent in previous 12 months (Sec. 704.17(2)(a), Wis. Stats.)	Yes (Sec. 704.17(1)(a), Wis. Stats.)
5 Day Notice To Correct Breach (other than non-payment of rent)or Vacate	Yes (Sec. 704.17(2)(b), Wis. Stats.)	No
14 Day Notice Terminating Tenancy for Breach (other than non-payment of rent)	Yes but only if tenant served with 5 Day Notice To Correct Breach in previous 12 months (Sec. 704.17(2)(b), Wis. Stats.)	Yes (Sec. 704.17(1)(b), Wis. Stats.)
5 Day Notice Terminating Tenancy for Drug or Gang Nuisance	Yes (Sec. 704.17(2)(c), Wis. Stats.)	Yes (Sec. 704.17(1)(c), Wis. Stats.)
28 Day Notice	No	Yes (Sec. 704.19, Wis. Stats.)

NOTE: I have chosen not to include a 30 day notice which must be used in leases for more than 1 year in most situations as residential leases greater than 1 year are infrenquently used.

IF YOU WOULD LIKE TO PRINT OUT A COPY OF THIS SUMMARY JUST CLICK HERE.

SMALL CLAIMS BENCH/BAR MEETING: Milwaukee County Gives Clarification Regarding Including Late Fees In 5 Day Notices and Other Issues

The Milwaukee County Small Claims court has reinstituted its monthly Bench/Bar meetings. These meetings allow the Milwaukee County Small Claims Court, including Judge Jane Carroll (presiding small claims judge) and the court commissioners, to come together with attorneys that appear regularly in small claims court, to discuss issues and concerns.

The most recent small claims bench/bar meeting was held on Monday, December 6, 2010. I was able to attend the meeting and found it to be very insightful. The meeting was attended by attorneys for tenants (Legal Action of Wisconsin, Inc.), attorneys for landlords (myself and a few others), the attorney for the AASEW, court commissioners, small claims judge, and other court staff. The overall response to the meeting was very good and Judge Carroll indicated that another meeting would be scheduled in January.

It was very enlightening -- and helpful -- to hear everyone discuss issues of concern and to learn the thought process behind certain rules and procedures in small claims court.

For those of you that could not attend the meeting, I have attempted to provide a summary of the discussion, below:

- Judge Carroll explained that she felt that nothing was wrong with a landlord including a late fee in a 5 day notice as long as the tenant was under a lease for a term as opposed to a month to month or other periodic tenancy.

Back in March of 2009 or so, when Judge Siefert was still the small claims judge, evictions were being dismissed if the landlord included late fees in the 5 day notice which was served on the tenant. Here is a post on that topic that I previously wrote.

It was origianlly explained to me several months ago, that the reason for this new policy was that the court was now reading the statute very strictly, and sec. 704.17(1), Wis. Stats. (regarding notices in month to month situations and other periodic tenancies) and sec. 704.17(2), Wis. Stats. (regarding notices in leases for a specific term) said that a 5 day notice could be given to a tenant for failure to pay "rent." "Rent" was strictly interpreted to include rent -- not late fees, security deposit amounts not paid, damages owed etc.

The discussion on this issue at the bench/bar meeting clarified that the court considered a tenant's failure to pay a late fee to be a "breach of a covenant or condition of the tenant's agreement" rather than a failure to pay rent and therefore a landlord would need to use a different 5 day notice -- one for breach other than failure to pay rent -- as opposed to a 5 day notice for failure to pay rent, in that particular cotext.

Judge Carroll said that she saw no problem with a landlord combining the two notices, as long as the tenant was under a lease for term, thus allowing a landlord to include a late fee in a 5 day notice for failure to pay rent.

The combining of notices (to include a late fee and the past due rent amount) would NOT be allowed (and could result in the dismissal of an eviction) if the tenant was under a periodic tenancy, such as a month to month tenancy. The reason for this distinction is that the Wisconsin Statutes do not allow a landlord to serve a tenant with a 5 day notice for the breach of lease for other than non-payment of rent. If there is a breach of the lease for anything other than the non-payment of rent, in a month to month or other periodic tenancy, the Wisconsin Statutes require that a 14 day notice be used.

The court further explained that if a tenant was under a month to month or other periodic tenancy, that a landlord could combine the notices (failure to pay rent and breach of agreement other than failure to pay rent) into a 14 day notice if the landlord wanted to include a late fee along with the rent owed. It should be noted however that 14 day notices do not allow a tenant the opportunity to cure the breach.

If this sounds confusing to you, you are not alone -- IT IS CONFUSING!! This is an example of the minutia of the law.

A quick summary:

1. It is OK to include a late fee in a 5 day notice for failure to pay rent as long as the tenant is under a lease for term (as opposed to a periodic tenancy like a month to month).

2. It is NOT OK to include a late fee in a 5 day notice for failure to pay rent if the tenant is a month to month tenant. In that case the 5 day can only list rent owed OR the landlord should use a 14 day notice if the landlord wants to include a late fee.

Truthfully, I think the above will cause more confusion for landlords that are representing themselves (pro se) and for attorneys who do not specialize in landlord-tenant law. To keep things simple I am still going to reccomend that my Milwaukee County landlord clients not include late fees in their 5 day notices.

- Small claims court will NOT be splitting up the 2 pm (initial appearance on evictions) court calandar as it did last year.

Many of you may recall the attempt by the courts to reduce the amount of people sitting in room 400 during the flu season last year. The goal was to prevent people from spreading the flu and so the court split the eviction calandar in half and made some landlords appear at 2 pm and others appear at 3 pm.

If you were a landord or attorney with multiple properties having multiple owners (some with names in the beginning of the alphabet and some toward the end of the alphabet), this often met you were stuck in small claims court even longer than usual. Even with the splitting of the court's calandar there were still a lot of people sitting in room 400 at one time - so I'm not sure that the transmission of the flu was really reduced. I was happy to learn that the court would be forgoing this splitting of the calandar this season.

- The court asked for everyone's thoughts regarding requiring a landlord to provide written notice to a tenant that defaults on a stipulated dismissal, in all circumstances.

Currently, if a tenant enters into a stipulated dismissal of an eviction action and agrees to either vacate by a date certain or remain in the unit and pay past due rent under a payment plan, and the tenant defaults on the stipulation, a landlord may come to court and file an Affidavit of Default and obtain a judgment of eviction and a writ of restitution WITHOUT having to provide the tenant with any notice.

Under a slightly different scenario, it is the policy of small claims court currently, that if the tenant enters into such a stipulated dismissal outside of court (i.e. signs the stipulation at the office of the landlord) and therefore neither the court nor the landlord's attorney explains the stipulation to the tenant, and should the tenant default, the landlord MUST provide written notice to the tenant of the default and provide the tenant with the date and time that the landlord will be coming to court to request the judgment of eviction and writ.

Judge Carroll expressed concern that some of these stipulations, notably those that involve payments that will occur several months into the future, should possibly require written notice to the tenant. Judge Carroll indicated that in some of the stipulated dismissals that she approves in her court (as opposed to those approved by the court commissioners in room 400) she requires the landlord to provide written notice to the tenant of the default, if the default occurs 5 months or more after the stipulation was entered into. Judge Carroll's concern was that some tenants would default on the stipulation and think they were working things out with the landlord to remedy the default, only to be surprised when the Sheriff was at the door ready to evict the tenant, thus leaving the tenant little time to move.

Many suggestions and opinions were offerred during the discussion. I indicated that requiring another level of notice to the tenant would just cause further delay to the landlord in getting possession of his/her rental property and would allow the tenant another opportunity to argue that they didnt receive the "notice" and therefore should have additional time to vacate. One suggestion was to require landlords to send a letter via regular U.S. mail to the tenant within 48 hours after going into court to file the Affidavit of Default and obtaining the eviction judgment and the writ. Another suggestion was to require such notice only in situations in which the landlord and tenant modified (orally or in writing) the terms of the stipulated dismissal. Yet another suggestion was to require such a notice only when the default occurred X number of months after the stipulation was entered into.

No decision was made to modfify the notice requirements in defaults of stipulated dismissals but the court appreciated everyone's thoughts and input and indicated that the topic may be addressed again in the future.

- Judge Carroll expressed concern with "proving up" modifications to stipulated dismissals or other agreements.

Judge Carroll indicated that she has witnessed many instances in which a landlord, who has already received a judgment of eviction and a writ, would then attempt to work with a tenant so that they could remain in the unit, rather than executing that writ with the Sheriff. Nothing is wrong with attempting to work to keep the tenant in the unit in, Judge Carroll explained,but what is a problemis that these agreements are not being put in writing. To avoid confusion, and possibly additional litigation, she emphasized that any agreement resulting from such negotiations should ber put in writing. Modifications to previosuly enetered into agreements are not being put in writing and this is resulting in the Court seeing a lot of "he said, she said" sitautions.

The practical effect of failing to memorialize such agreements or modifications often results in the scenario below:

At some point in time the landlord decides to stop working with the tenant to keep them in the rental unit, and tenders the writ to the Sheriff. The Sheriff gives the tenant a 24 hour notice before executing the writ which causes the tenant to run into court and file a motion to reopen the judgment of eviction. The tenant argues that while a writ was granted to the landlord, since that time the landlord began to work with the tenant to allow them to remain in the unit. The landlord told the tenant that they could stay if they did X and Y (or at least that is what the tenant "heard") and the tenant has done X and Y, so the landlord should not be allowed to have the writ executed becasue of the new agreement. The court then schedules a hearing on the tenant's motion to reopen the eviction judgment -- which results in a stay of the execution of the writ. The landlord now has to appear in court again and both the tenant and the landlord have differernt versions of their discussions and the court has to sort through all of this -- with nothing in writing to support either side's argument.

The court understands that landlords would often like keep a tenant if possible, and that is the reason for a landlord attempting to "work with" a tenant even after a writ has been obtained. But as Judge Carroll pointed out, because these modification are not put in writing there is often disagreements as to what was agreed to between the parties.

My thoughts on this issue are simple: (1) If you have a writ, execute it and remove the tenant from your rental property -- the time for trying to work with the tenant so that they can remain in the unit is long past if you have filed an eviction action against them, in my opinion, or (2) if you still want to work with the tenant so that they can remain in the unit at this late date ----- put the agreement in writing, using clear and simple terms tht the tenant, the landlord, and the court, can understand and interpret.

With A Month To Month Rental Agreement A Landlord Has More Options Than Just The 5 Day Notice

One reason many landlords choose to enter into a month to month tenancy (m2m) with a tenant rather than a 1 year lease (or other term lease) is because it is easier to remove a tenant under a m2m tenancy.

In a m2m tenancy a landlord has the choice of serving a tenant with a 5 Day Notice for failure to pay rent, a 14 Day Notice for failure to pay rent or for any other non-rent breach, or a 28 Day Notice. One of the notices -- the 28 Day Notice -- can legally terminate a m2m tenancy without the tenant even having committed a breach.

The 5 Day Notice:

Under a m2m tenancy a landlord has the option to serve the tenant a 5 Day Notice if the tenant fails to pay rent. A 5 Day Notice allows the tenant the right to pay the past due rent within the 5 day cure period and if that is done then the tenancy continues and the tenant can remain. If the tenant fails to pay rent within the 5 days then the tenancy is terminated and the landlord may file an eviction action against the tenant if they have not already vacated.

Please be aware however that the Wisconsin Statutes do not allow a landlord the option of serving a 5 Day Notice on a M2M tenant for a breach other than non-payment of rent. See sec. 704.17(1)(b), Wis. Stats. It is not clear why the law is written this way and it is my opinion that is should be changed because not all landlords wish to terminate a tenant's tenancy with a 14 day notice just because they breached the rental agreement for something other than paying rent. Although as written, Wisconsin law seems to require this.

NOTE: I am not sure why, but many landlords believe that they are required to serve a tenant with a 14 Day Notice after the tenant has been served -- and not cured -- a 5 Day Notice. This is not true and is not required under Wisconsin law. If a tenant is served a 5 Day Notice for committing a breach and does not cure the breach within 5 days the landlord is NOT required to then serve the tenant with a 14 Day Notice. If a 5 Day Notice is not cured (and the tenant has not voluntarily vacated the property) then the landlord should immediately file an eviction action to remove the tenant. This is true whether the tenant is under a m2m tenancy or under a term lease.

The 14 Day Notice:

If a tenant commits a breach under a m2m tenancy the landlord can legally bypass the 5 Day Notice and proceed directly to a 14 Day Notice. Under a 14 Day Notice the tenancy will terminate at the end of the 14 days and the tenant has no right to cure the breach and remain. At the end of the 14 days the landlord is entitled to file an eviction to remove the tenant if they have not vacated. A 14 Day Notice is basically a "1 strike and you are out" notice. Landlords using m2m rental agreements do not have to give a tenant the opportunity to cure the breach.

This is a key difference between a m2m tenancy versus a term lease. If a tenant commits a breach for the first time under a term lease, the tenant must be given the opportunity to cure the breach. A landlord using a term lease can only serve a tenant with a 14 Day Notice if this is the tenant's second time committing breach within a 12 month period and the tenant was previously served a 5 Day Notice for the same or similar breach.

The 28 Day Notice:

The other major distinction between a term lease and a m2m tenancy is that a tenant under a m2m can have their tenancy terminated even if they have not committed a breach with a 28 Day Notice. So a landlord using a m2m rental agreement has the option to issue his/her tenant a 28 Day Notice to vacate for any reason or no reason at all. The only restriction is that the landlord cannot serve a 28 Day Notice to retaliate or discriminate against a tenant.

Summary:

Under a lease for term a landlord may only terminate the lease if the tenant has committed a breach. If it is the first time that the tenant has committed a breach, a landlord must serve the tenant with a 5 Day Notice which allows the tenant the opportunity to cure the breach.

A tenant under a m2m tenancy is not afforded the same protections. A m2m tenant can be removed even if no breach has been committed by simply serving them with a 28 Day Notice. If the tenant has committed a breach, the landlord can choose to serve a 14 Day Notice (which does not allow the tenant the opportunity to cure the breach), a 5 Day Notice if the tenant fails to pay rent (which does allow the tenant the opportunity to cure the breach and remain as a tenant), or a 14 Day Notice if the tenant has committed a breach for something other than non-payment of rent (which does not allow the tenant the opportunity to cure the breach).

The ease in removing a tenant under a m2m tenancy is a significant reason for first time landlords, landlords that have had difficulty with past tenants, or any landlord that wants to have flexibility to consider using a m2m rather than the ol' standby 1 year lease. I personally only offer my new tenants a m2m rental agreement. It is only after a period of time has passed and the tenant has proven to me that they will pay their rent on time and that they will treat my rental property with care --- in other words they have demonstrated responsibility --- that I will offer them the opportunity to enter into a 1 year lease.

Finally, Some Legislation That Actually Assists Landlords - Senate Bill 607

Senators Plale, Hansen, and Lasee introduced Senante Bill (SB) 607 yesterday. What a breath of fresh air it is to read this bill. Rather then making landlords jump through more and more hoops to protect our tenants and rental property, this bill actually assists us in doing our jobs. I am so used to blogging about proposed legislation that hurts (or at the very least hinders) landlords that this is a nice change.

If passed, this bill will allow a landlord to terminate a tenant's tenancy, regardless if they are a month-to-month tenant, tenant under a lease for 1 year or less, or a tenant with a lease for more than 1 year, if the tenant or the tenant's guest, commits certain crimes, in property or near the property.

Currently if you have a tenant under a lease for one year or less or more than one year (as opposed to a periodic tenancy like a month-to-month) and if that tenant commits a crime you are legally prevented for terminating that tenant's tenancy and evicting them. The current law states that if a tenant under a lease commits a breach (including criminal activity) that they landlord MUST serve them with a 5 day notice that allows the tenant the opportunity to cure the breach.

Currently the only two exceptions to the above, are the very limited situations in which the tenant has created a gang or drug nuisance at the property AND the landlord has received a written notice of drug or gang nuisance from a law enforecement agency. Only in these two limited circumstances can a landlord serve a 5 day notice on the tenant that does not afford the tenant the right to cure the breach.

To better illustrate the current status of the law, here is an example:

Tenant A gets drunk and runs around the apartment complex brandishing a gun and threatening to shoot anyone that he passes. Assuming that Tenant A is not arrested and hauled off to jail, Tenant A's landlord is not legally allowed to terminate Tenant A's tenancy and file an eviction action as a result of this criminal behavior if Tenant A is under a lease for one year or less or a lease for more than one year. The only legal recourse that the landlord has is to serve Tenant A with a 5 day notice which affords Tenant A with the opportunity to cure the breach (the criminal activity) or vacate. How does Tenant A cure the breach? By not running around the apartment complex within the next 5 days brandishing a gun and threatening to shoot people. Ridiculous I know, but that is all Tenant A must do to cure his breach and if he does that, the landlord is legally required to keep him as a tenant as long as the tenant is under a lease.

The law as written puts a landlord in a very difficult position as it requires the landlord to give the tenant a second chance even though the landlord has notice that the tenant has violent tendencies or is doing things that could jeopardize the safety of other tenants. I have always been concerned about the possibility that Tenant A, after committing the 1st breach (crime) and then curing the breach, then proceed to commit another crime and in so doing causes harm to another tenant. If that was to occur another innocent tenant is injured (or at the very least scared out of their socks) and there is always the possibility that the injured tenant might contemplate suing the landlord for failing to protect them from danger since the landlord had knowledge of Tenant A's criminal tendencies. This would be a catch-22 sitaution for the landlord if I ever heard of one.

Section 8, site-based, subsidized housing prevents the above situation from occurring by allowing landlords to terminate the tenancy and evict a tenant (or family member or guest) that has committed certain criminal activity on or near the subsudized rental property, even if the tenant is under a lease for term. I call this the "One Strike" law. Market rate (non-subsidized) housing does not have a "one strike" law ---- but with this proposed legislation, we may have one in the future.

SB 607, if passed, will allow a landlord of market-rate housing to terminate the tenancy of and evict a tenant, even if they are under a lease, if the tenant or the tenant's guest commits certain crimes at the property or near the property, by issuing a 5 day notice with no right to cure.

The crimes that would allow a landlord to terminate a tenant's tenancy include:

1. Battery (or related crimes),

2. Endangering safety by use of a dangerous weapon (or related crimes),

3. Criminal gang activity,

4. Criminal damage to property (or related crimes),

5. Prostitution (or related crimes),

6. Harassment (or related crimes),

7. Any other breach of the rental agreement that jeopardizes the health, safety, or welfare of the owner, his/her agent, or another tenant.

SB 607 also allows a landlord to terminate the tenancy of a tenant under a periodic tenancy (month to month) that has committed one of the aforementioned crimes, by serving them with a 5 day notice with no right to cure. This proposed modification of the law, while helpful, is not as important as the above mentioned changes involving tenants under leases for term, as a landlord with a month-to-month tenant has always had the right to serve the tenant with a 14 day notice to vacate (without a right to cure the breach) or a 28 day notice (for any reason at all). Nonetheless, SB 607 will allow a landlord of a month-to-month tenant to remove a dangerous tenant more quickly then before.

The bill will requires that the landlord give the tenant a written 5 day notice that states the basis of the breach and informs the tenant of his/her right to contest the termination if an eviction action is filed. If the tenant contests the eviction action, the landlord must still prove that the tenant or his/her guest committed the crime.

This bill has been referred to the committee on Judiciary, Corrections, Insurance and Campaign Finance Reform, and Housing.

Please take the time to contact your state representatives and tell them that they should fully support this proposed bill.

Also take the time to thank Brian Fleming - President of Milwaukee RING - for taking the time and effort to bring this major "hole in the law" to Senator Plale's attention. Without Brian's work on this there would be no SB 607.

Newly Revised 5-Day Notice To Pay Rent or Vacate Now Available at Wisconsin Legal Blank

As many of you know I am the author of the set of Landlord-Tenant forms that are sold at Wisconsin Legal Blank Co., Inc. I am currently in the process of reviewing and updating all of the L-T forms as well as creating a few new ones. At this time however, I wanted to alert you that the revised 5-Day Notice to Pay Rent or Vacate is now available for sale at WLB.

Essentailly the revisions to the Notice include the following:

- I have added language that states that the tenant will still be in default and subject to eviction if they make only a partial payment and/or make a full payment after the 5 day cure period has elapsed. It is my hope that by adding this language it will better protect a landlord that accepts a partial payment or late payment from having their eviction lawsuit dismissed based on a legal theory called "waiver."

NOTE: The best way to avoid a "waiver" arguement is to not accept any partial payment or any payment that is made after the 5 day period has elapsed. Having said that, I am aware that it is very difficult for a landlord to turn away money that s/he is almost certain to never see again if the landlord is evicting a tenant. So if you decide that you want to keep the partial or late payment then the next best option to avoid the tenant prevailing on a "waiver" argument is to place the payment in escrow -- do not cash the check!! -- and send the tenant a letter --- which I refer to as a "No Waiver" letter --- which essentially says that the landlord has received the partial or late payment and that the money will be held in escrow until after the court has decided whether or not to grant the eviction. The 'No Waiver" letter should also state that the money will be appplied to any past due amounts owed after the eviction has been decided and that by holding the money in escrow the landlord is not waiving his/her right to continue with the eviction against the tenant and that it is the landlord's intent to proceed with the eviction and have the tenant evicted. The new language added that has been added to the revised 5-Day Notice now available at WLB has been added as a "safety net" should the landlord not follow one of the two options set forth above.

- I have referenced the applicable Wisconsin Statutes regarding 5 day notices.

- I have made a few other grammatical changes.

I will be sure and let you know when other updated landlord-tenant forms are available at WLB.

How To Legally Serve A 5-Day Notice To Pay Rent or Vacate

There are basically 4 ways in which you can legally serve a tenant with a 5-Day Notice To Pay Rent or Vacate. First, you can personally serve the tenant with the notice. Second, you can serve them by what I refer to as a "substituted" service. Third, you can "post and mail" the notice to the tenant. Fourth, you can serve the tenant via certified or registered mail.

Landlords in Wisconsin are legally allowed to serve the notice to pay or quit on the tenant themselves. This is very different from the service of the eviction lawsuit (summons and complaint) which Wisconsin law will not allow to be served by a landlord or his/her agent.

Set forth below the are the 4 service options (as I categorize them) and the pros and cons of each option.

1. Personal Service: This form of service occurs when the notice is physically handed to the tenant. While this option sounds pretty simple it often ends up being more complicated. It becomes complicated because many landlords believe that if they cannot serve the tenant personally after the first attempt that they are allowed to post the notice on the door and be done with it -- WRONG. Wisconsin Statutes require that the Landlord use "reasonable diligence" before they can resort to service via "posting and mailing." "Reasonable diligence" is not defined in the statutes. As such, what constitutes "reasonable diligence" is decided by the court commissioner or judge that is hearing your case - and oftentimes the definition of "reasonable diligence" will change depending on which judge or commissioner you are before.

In Milwaukee County it has been unofficially declared that "reasonable diligence" means you must make at least 3 different attempts to personally serve the tenant and those 3 differernt attempts must occur on 3 different days and at 3 different times. For example, if you tried to serve the notice on the tenant on Monday at 8 am and they were not home, you would then have to wait until Tuesday to make your 2nd attempt in the afternoon. If you still couldn't personally serve the tenant on Tuesday then you would need to come back on Wednesday and to attempt to serve the tenant again but this time in the evening hours. Three different days at three different times of day. So if your tenant is home and answers the door then personal service is pretty easy. However, if they are not home or are dodging service then you could waste 3-4 days before you can legally "post and mail" the notice. This is an unecessary delay.

Another drawback to personal service is the fact that you may end up face to face with your tenant. If there is some animosity between you and the tenant (as there often is when the tenant realizes that you will be evicting them if they don't pay rent) personal sevice of the notice could result in a personal confrontation.

2. Substituted Service: The second option is what I refer to as "substituted service" and essentially means you are serving someone else with the notice on behalf of the tenant. I almost never recommend that a client opt for substituted service because of all of the potential problems. Under section 704.21 of the Wisconsin Statutes you can serve a tenant by substituted service by serving a "competent family member who is at least 14 years old and who has been informed of the contents of the notice" or by "leaving a copy of the notice with a person apparently in charge, or occupying, the premises and mailing a copy to the tenant's last known address."

There are many potential pitfalls with substituted service. First, you will need to inquire as to the age of the person you are giving the notice to to insure that they are at least 14 years old. Second, you need to tell them what the notice is and what it means. I have been involved in a case in which the landlord served the tenant's son with the notice knowing that he was 16 years old. However when the case went to court the tenant raised as a defense the fact that her son was mentally retarded and only functioned at a third grade level and forgot to give her the notice. Rather right or wrong, the eviction lawsuit was dismissed for improper service.

Under the second option for substituted service, the landlord must leave a copy of the notice with a person "apparently in charge of the premises, or occupying the premises" and also mail the notice. I have seen many landlords forget to mail the notice under this option and as a result the service was declared improper and the eviction lawsuit dismissed. I have also heard of a situation in which the landlord served the notice on a gentleman (who was not a tenant but based on only being clothed in only boxer shorts he certainly appeared to be "apparently in charge or occupying the premises."), only to find out at the intial appearance in court that the gentleman was someone that the tenant "picked up" at a bar the night before and failede to notify the tenant that he was given the notice but rather threw it in the garbage. I know, I know, you are saying regardless of the "one night stand" throwing th enotice away, it still was a proper service as the landlord mailed the notice to the tenant as well, which he did. I would agree with you 100% but I was told that was not what the court commissioner concluded. Instead the court commissioner stated that becasue of the fact that the "one night stand" threw the notice in the garbage, the tenant didn't have proper notice of her ability to cure the breach by paying the past due rent to the landlord within 5 days, and as such the notice was improper.

Do you still think that serving a notice on a tenant is easy?

3. Post and Mail: As mentioned previously, if after using "reasonable diligence" and trying to serve the tenant by the above methods you are unable to personally serve or serve the tenant by substituted service, then -- and only then -- are you able to "post and mail." To "post" means to place a copy of the notice in a conspicuous location on the property. Oftentimes this is performed by tacking the notice to the tenant's door or sliding the notice under the door. The landlord must also mail the notice to the tenant. Problems arise if the lanldord fails to mail the notice or does not mail the notice on the same day as s/he posts the notice. If the landlord mails the notice the day after the posting then the date of service will be on the date that it was mailed - not the date that it was posted.

Sec. 704.19(7)(b) of the Wisconsin Statutes states that when "posting and mailing" or "leaving a copy of the notice with a person apparently in charge of or occupying the premises," the notice is deemed to have been given on the day of service OR the date of mailing - whichever is later. I have seen numerous cases where the landlord failed to mail the notice on the same day that it was posted and therefore it was determined that the eviction lawsuit was prematurely filed.

4. Certified or Registered Mail: Personally, I feel this is the best way to serve a tenant a 5-Day notice. You are not required to attempt to personally serve a tenant with the notice before serving via certified or registered mail so you can disregard "reasonable diligence." Nor must you attempt to obtain substituted service on the tenant before you can choose to serve via certified/registered mail. Certified and registered mail also does NOT need to be picked up by the tenant in order for the service to be proper. The law merely requires that the notice be mailed via certified or registered mail for it so be legally served. By using certified or regular mail you also eliminate any possible confrontation with the tenant. You eliminate the need to attempt to personally serve the tenant 3 different times on 3 different days at 3 different times of day. You also eliminate all of the potential pitfalls with substituted service.

Serving a notice on a tenant via certified/registered mail is not without complications however. When serving a tenant with a notice via certified/registered mail you must remember to add an additional 2 days for mailing on top of the notice period per section 704.19(7)(c), Wis. Stats. So, in effect the 5-Day notice becomes a 7-day notice. This means that the landord must insure that he does not file the eviction lawsuit (assuming the tenant does not cure the breach by paying the past due rent within the cure period) until at leasr 7 days after mailing the notice via certified or registered mail. Another negative of certified or regestered mail is the cost. If you own or manage many properties and send out a lot of 5-Day notices each month then the cost of certified/registered mail may be prohibitive.

Please be aware that if you own or manage subsidized housing that there are special service requirements for the 5-Day notice that may apply depending on the type of subsidy that is involved.