I Think That My Tenant Has Vacated the Rental Unit, What Do I Do Now? PART 1: Surrender of the Rental Unit

In an ideal world, the tenant would return their keys, remove all personal property (including trash), and leave the rental unit spotless. Then it would be clear that the tenant has surrendered the rental unit and, as there wouldn’t be any personal property remaining, there would be nothing to debate its abandonment. Unfortunately, that rarely happens.

In this situation, there are generally two main issues: (1) Has the tenant surrendered the rental unit (i.e. vacated and has no need to come back to clean, pick up personal property, or for any other reason); and (2) Has the tenant abandoned any remaining personal property.  In this post we will discuss the first issue: Has the tenant surrendered the rental unit?

Surrender of the Rental Unit:

The gold standard to confirm that a tenant has surrendered a rental unit is for the tenant to return the keys to the rental unit to the landlord. If the tenant has returned the keys to the landlord, he or she can’t get back into the unit and thus they are not planning to come back and clean or remove more personal property.

So, if it looks like a tenant may have left but not returned the keys, you should try and contact the tenant and get him or her to return the keys.

If that isn’t an option, the next best scenario would be for the tenant to sign a statement that he or she has surrendered the rental unit.

If that isn’t an option, the next best scenario is to talk with the tenant and have him or her tell you that he or she has surrendered the rental unit and then follow that conversation up with a letter to the tenant confirming the date and time you spoke with him/her and that he or she told you they had surrendered the rental unit.

If the tenant does not respond to any of your attempts to contact him or her, then you have to make a decision. Should you:

1. Play it safe and serve a notice for failure to pay rent, file an eviction, and have the Sheriff execute the writ.  This is the safest way to proceed, but also the most time-consuming and costly; or
2. Assume that the tenant has surrendered the rental unit and change the locks.

I have had to defend landlords who have chosen Option #2 and been sued by the tenant who claims the landlord engaged in an illegal self-help eviction by changing the locks without going through the judicial eviction process.  So such lawsuits do happen and it often takes quite a bit of money to resolve such lawsuits depending on the amount and quality of the personal property that was disposed of by the landlord.

Most of my clients are more risk adverse and always elect to follow option #1. But , I do have other client that are willing to take the risk and go for option #2.

If the landlord wants to pursue option #2, then I recommend that the landlord document the file with any and all attempts made to determine or confirm that the tenant has surrendered the rental unit. Examples would include:

• Memos to the file noting all the attempts the landlord made to contact the tenant to confirm he or she has vacated;
• Memo to file of all telephone calls to the tenant’s emergency contact or other known family members who confirmed that tenant has vacated;
• Interview neighbors and document the last time they saw the tenant (sometimes the next door neighbor will tell you that they saw the tenant pull up in a moving van the day before and load it up and then the tenant waived good-bye to them);
• You could run a CCAP search on the tenant to see if the tenant has been arrested and is in jail (in which case you will definitely need to proceed with the eviction process) or got a recent speeding ticket and gave a new address;
• Take pictures of the rental unit showing what, if any, personal property the tenant left behind (ideally it will be trash or items that aren’t necessary for day-to-day living like toiletries, mail with old dates and addresses on it, expired food, etc.).

The goal is to document the file so that if you opt to change the locks, and the tenant later sues you for performing an illegal eviction, you would be able to prove to a court that you did investigate and try to determine if the tenant had surrendered the rental unit and; further, that based on all the information you obtained, a reasonable person would have determined that the tenant had surrendered the renal unit as well.

Unfortunately, there is not a bright line test to determine whether or not a landlord is “safe” in changing the locks on the rental unit or if the landlord should instead go through with the eviction process. That is why the decision often hinges on the landlord’s aversion to risk.

Stay tuned for my next blog post - I Think That My Tenant Has Vacated the Rental Unit, What Do I Do Now? PART 2: Abandonment of Personal Property

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!

Self-Help Evictions (or Why You Should Not Remove The Roof In An Attempt To Evict Your Tenant)

I apologize for the delay in drafting a new post but this has been a crazy week with two trials in the early part of the week and another one tomorrow (all tenants fighting evictions and none of these trials have been or will be easy). But enough with the excuses . . .

I saw a recent article about a landlord in Lusaka, Zambia (Africa) that actually attempted to evict his tenants by physically removing the roof (which was made of iron sheets) to the home. The article states that the landlord "may not have followed the proper procedures to evict the tenant." No kidding . . . . really, I'm sure it would be illegal to remove the roof to a rental unit in order to evict a tenant in any country (but I am just guessing).

I'm certainly no expert in Zambian landlord-tenant law but I do know that in Wisconsin, if a landlord tried attempted to evict a tenant by removing the roof to the rental property, that the landlord would be opening himself/herself up to liability for engaging in what is commonly referred to as "self-help eviction."

Self-help eviction is a genreal term that refers to any attempt to remove a tenant from a rental property other than through the judicial eviction process and the use of the Sheriff.

In Wisconsin, the only way to legally remove a tenant (that refuses to leave) is through the judicial eviction process. Once the landlord obtains a judgment of eviction and is issued the writ of restitution, should the tenant still fail to vacate the unit, the only legal avenue that the landlord has to reclaim his/her real estate in Milwaukee County is to execute the writ with the Sheriff.

Yes, you heard me correctly! Even if the court has ordered the tenant out of the rental unit, and the tenant intentionally ignore the court's order, the landlord still cannot force the tenant out of his/her property. The landlord must engage the services of the Sheriff to forcibly evict the tenant.

It is illegal in Wisconsin for a landlord to engage in self-help eviction. Examples of self-help eviction would include the following:

1. Changing the locks to the rental unit.

2. Cutting off all utilities to the unit.

3. Removing the outside door to the rental unit.

4. Taking all of the tenant's belongings and putting them out on the curb.

5. Harassing the tenant in order to make them leave.

6. Removing the roof to the rental unit . . .

Wisconsin Administrative Code, ATCP 134.09(7), entitled Prohibited Practices, states that, "No landlord may exclude, forcibly evict or constructively evict a tenant from a dwelling unit, other than by an eviction procedure specified under ch. 799, Wis. Stats."

ATCP 134.08 (1), which lists prohibited rental provisions, also prohibits a landlord from including a clause in his or her rental agreement that authorizes the eviction of a tenant from a unit other than by the judicial eviction proceeding set forth in Ch. 799, Wis. Stats.

Many municipalities, such as Milwaukee and Madision, also have local ordinance that also prohibit self-help evictions.

While Chapter 704 of the Wisconsin Statutes does not specifically prohibit non-judicial forms of eviction, its legislative history states that the procedures for eviction set forth in Ch. 704 and Ch. 799 (Small Claims Procedure) are the exclusive means of conducting an eviction.

I believe (and hope) that most landlords understand that they cannot forcibly remove a tenant from a rental unit on their own. I think that most landlords no that if a tenant will not leave voluntarily that they must file an eviction lawsuit against the tenant. What I think many landlords do not understand however, is that after they have filed the eviction and obtained a judgement of eviction ordering the tenant to vacate the rental property, that if the tenant still refuses to leave, that the only legal avenue the landlord has is to execute the writ of restitution with the Sheriff. This understandably upsets landlords because it results in additional time, delay and money. In Milwaukee County it costs $125 to hire the Sheriff to evict the tenant and requires the posting of approximately $350 with a moving company.

Despite this additional cost and aggravation, this is the law in Wisconsin. I would alert any landlord that is thinking of skipping this part of the eviction process, and resort to self-help, to strongly reconsider.

The penalties for engaging in a self help eviction are sever. A violation of ATCP 134, which precludes self-help eviction, allows the tenant to sue the landlord for double his/her damages and recover his/her attorney's fees.

So if you find yourself on the wrong end of a lawsuit for self-help eviction you could end up paying the tenant's damages times two, the tenant's attorney's fees, all associated court costs, along with your own attorney's fees. Trust me, I have defended several landlords in lawsuits alleging self-help eviction and the outcome can be very expensive. Even if the landlord prevails in the end and a judge or jury decides that there was no self-help eviction, the costs in time and attorney's fees to defend against the lawsuit can be substantial. Don't risk it.

I always encourage my clients to error on the side of caution. If you are unsure whether or not a tenant has vacated the unit then you should file an eviction lawsuit and retain the services of the Sheriff to return the property back to you. If you use the Sheriff's services and the Sheriff removes the tenant, or otherwise determines that the unit has been abandoned, should a tenant later decide to file a lawsuit for illegal eviction s/he will need to sue the Sheriff, not the landlord. Using the Sheriff is a big CYA.

So the moral of this blog post is simple --- if you want your tenant to leave your rental property you should not remove the roof of the rental unit : )