Milwaukee County Issues New Local Rule Regarding Stipulated Dismissals In Eviction Lawsuits

On May 1, 2015, the Chief Judge of Milwaukee County, Judge Jeffrey Kremers, issued new local rule 3.85 concerning Stipulations to Dismiss the first cause of action (possession of the property) in eviction cases.

Readers should review local rule 3.85 itself but I have summarized the pertinent points below.

1. A landlord and tenant may agree to dismiss the first cause of action (return of premises) in exchange for the tenant's promise to pay certain amounts to the landlord. Local Rule 3.85 governs when such agreements will be accepted and enforced by the Court.

2. All stipulations must be in writing.

3. The stipulation must state a date certain on which the final payment will be due.

4. The payment period should not be any longer than reasonably necessary for the tenant to pay the full amount owed to landlord. Once the final payment is made the landlord no longer has the right to seek an eviction of the tenant without filing a new eviction lawsuit.

5. If the stipulation requires payment from the tenant for any monies other than rent or court costs, the stipulation must specify what those other amounts are for. The court will not approve a stipulation requiring the payment of an obligation that is not enforceable under the lease or law. Translation: you can not include the payment of a landlord's attorney's fees in a stipulated dismissal for a residential eviction action.

6. The stipulation must be signed by all parties in the presence of the court or confirmed in the presence of the court by both parties.

7. If the tenant cannot appear in court to sign the stipulation than the landlord must file an affidavit that states the following:

a. The absent party has reviewed the stipulation and understands what it says.

b. The Landlord or its agent reviewed the stipulation with the absent party prior to signing and the affidavit shall name the person who reviewed the stipulation with the absent party.

c. The absent party agrees that they owe the amount they are agreeing to pay.

d. The absent party is signing the stipulation freely and voluntarily.

e. The absent party must have an "acceptable" reason for why they cannot come to court (such as employment obligations, education, or medical issues) and the court will determine if the reason is acceptable or not.

8. If the stipulation was signed by both parties in court and the tenant defaults by not paying one of the first 3 payments due under the stipulation, the landlord may file an affidavit of default with the court -- without notice to the tenant -- and the court will grant a judgment of eviction and issue a writ of restitution.

9. In all other instances than that stated in #8 above, the landlord will be required to give notice to the tenant stating when the landlord will be coming to court to file the affidavit of default and to obtain the judgment of eviction and the writ.

a. Notice to the tenant is required if the landlord does not come to court to obtain the writ before the 4th or subsequent payment is due under the stipulation.

b. Notice to the tenant is required if the stipulation was not signed by the tenant in court (or affirmed in court) regardless of whether or not the tenant has made any timely payments or not.

c. The notice to the tenant must include a letter identifying the overdue payment (by amount and due date) and explaining in clear and understandable terms that it is the landlord's intention is to ask the court for an eviction judgment and writ of restitution.

d. The notice must be served on the tenant by certified mail and first class mail. The landlord must file proof of mailing by certified mail with the court and an affidavit certifying that the notice was also served by first class mail with the court.

e. The landlord may not come to court to obtain the eviction judgment and writ unless at least seven (7) calendar days have passed after the date of mailing.

The new local rule is very different from how things had been handled with stipulated dismissals in eviction cases in the past. So landlords need to be aware of this new local rule and follow each and every requirement or risk the Court denying you the eviction judgment and writ that you will so desperately want and need at that point and time.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SB 179 ("Landlord-Tenant Bill") Is On It's Way To Governor Walker To Be Signed Into Law

At about 6:40 pm on October 16, 2013, SB 179 (commonly referred to as the Landlord-Tenant Bill) was concurred by the state Senate after a minor amendment was made in the state Assembly earlier. The bill passed 18-15 despite attempts to delay the bill via a motion to non-concur. The bill now goes to the Governor who has 30 days to "call" for the bill and sign it.

If you would like to watch the hearing you can do so by clicking here. The portion of the hearing dealing with SB 179 starts at approximately 2:58.

This bill which will hopefully become law -- absent a veto by the Governor -- will makes some major changes to Wisconsin Landlord Tenant law and the small claims eviction procedure. It also cleans up several of the unintended consequences of Act 143, which also dealt with landlord-tenant law, which became law back on March 31, 2012.

I will be devoting a segment of the AASEW's upcoming Landlord Boot Camp on October 26, 2013, to discussing SB 179 and its effect on the landlord-tenant landscape. For more information on the upcoming Boot Camp, including a summary of other topics that will be covered, prior attendees' testimonials, and how to register to attend, please go to www.LandlordBootCamp2013.com.

Assuming the Governor signs SB 179 into law, I will most likley be posting on this topic again in the near future and offerring my own analysis of the law, but for now I have reproduced for the Wisconsin Legislative Council's October 14, 2013 memo which summarizes current law in Wisconsin and then summarizes how SB 179 will affect/change current law.

This memorandum describes Senate Substitute Amendment 1 to 2013 Senate Bill 179, as amended by Senate Amendments 17 and 18, relating to landlord-tenant law, small claims actions, and towing of vehicles. In addition, this Memo describes Assembly Amendment 1 to 2013 Senate Bill 179, as passed by the Senate. The section numbers in brackets refer to the sections of Senate Bill 179 that are described under each heading, below.

RESTRICTIONS ON LOCAL ORDINANCES [Sections 1-4]

Under current law, a city, village, town, or county (municipality) is prohibited from enacting or enforcing certain ordinances relating to landlords and tenants, such as an ordinance imposing a moratorium on eviction actions or an ordinance that places certain limitations on what information a landlord may obtain and use concerning a prospective tenant. [ss. 66.0104 and 66.1010, Stats.]

Senate Bill 179 additionally prohibits a municipality from enacting or enforcing an ordinance that does any of the following:

• Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
• Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
• Requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.
• Requires a landlord to communicate to the municipality any information concerning the landlord unless the information is required under federal or state law or is required of all residential real property owners.

Senate Substitute Amendment 1 authorizes a municipality to enact or enforce an ordinance that requires a landlord to communicate to the municipality any information concerning the landlord ifthe information is solely information that will enable a person to contact the owner or, at the option of the owner, an agent of the owner.

Senate Amendment 17 to Senate Substitute Amendment 1 authorizes a municipality to enact or create an ordinance that requires a landlord to communicate information to tenants that is not required to be communicated to tenants under federal or state law if the ordinance has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

Assembly Amendment 1 to Senate Bill 179, as passed by the Senate (i.e., as amended by Senate Substitute Amendment 1 and Senate Amendments 17 and 18) modifies the provision described above that generally prohibits a municipality from enacting or enforcing an ordinance requiring a landlord to communicate to the municipality any information concerning the landlord, unless an exception applies. Assembly Amendment 1 provides that the general prohibition relates to communication to the municipality of any information concerning the landlord or a tenant, unless an exception applies.

NOTIFICATION TO A PROSPECTIVE TENANT OF BUILDING CODE OR HOUSING CODE VIOLATIONS [Section 11]

Under current law, if a landlord has actual knowledgeof any uncorrected building code or housing code violation in the dwelling unit or a common area that presents a significant threat to the prospective tenant’s health or safety, the landlord must disclose the violation to a prospective tenant before entering into a rental agreement or accepting any earnest money or security deposit. [s. 704.07 (2) (bm), Stats.]

Under Senate Bill 179, the landlord must disclose the types of violations described above only if he or she has received written notice of the violation from a local housing code enforcement agency.

Senate Substitute Amendment 1 deletes this provision from the bill.

COMMISSION OF CRIMES ON RENTAL PROPERTY [Section 18]

Under current law, if a lease contains any of a list of prohibited provisions, the lease is void and unenforceable. Among the prohibited provisions is a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime. [s. 704.44 (9), Stats.]

Senate Bill 179 repeals the provision of current law describe above.

Senate Substitute Amendment 1 replaces the current law provision described above with a provision that states that the lease is void and unenforceable if it contains a provision that allows the landlord to terminate a tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime. Victim is defined by reference to s. 950.02 (4), which generally provides that “victim” means a person against whom a crime has been committed, unless he or she is the person charged with or alleged to have committed the crime.

In addition, the substitute amendment requires a lease to include a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats. The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking. The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premises.

The substitute amendment also provides that a lease is void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for criminal activity in relation to the property and the lease does not include the notice regarding domestic abuse protections described above.

Senate Amendment 18 to Senate Substitute Amendment 1 modifies the language required under the notice of domestic abuse protections. Under Senate Amendment 18, the notice provides that a tenant has a defense to an eviction action under the circumstances provided in s. 106.50 (5m) (dm), Stats., instead of providing that a tenant may be able to stop an eviction action under such circumstances.

TERMINATION OF TENANCY IN MOBILE OR MANUFACTURED HOME COMMUNITIES FOR THREAT OF SERIOUS HARM [No provision in Bill]

Under current law, a landlord may terminate the tenancy of a tenant if the tenant commits one or more acts, including verbal threats, that cause another tenant, or a child of that other tenant, who occupies a dwelling unit in the same single-family rental unit, multi-unit dwelling, or apartment complex as the offending tenant, to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises. [s. 704.16 (3), Stats.]

Senate Substitute Amendment 1 authorizes a landlord to terminate the tenancy of the tenant of a mobile or manufactured home community who threatens another tenant, or child of another tenant, of the mobile or manufactured home community under the same circumstances, described above.

TIMING OF RETURN OF SECURITY DEPOSIT [Section 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first. [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, if a tenant is evicted, the landlord must return the security deposit to the tenant within 21 days after the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant's rental agreement terminates, the date on which the new tenant’s tenancy begins.

Senate Substitute Amendment 1 provides that the timing of the return of the security deposit depends on whether the tenant is evicted before or after the termination date of the lease. If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins. If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction.

SERVICE OF SUMMONS IN EVICTION ACTION [Section 22]

Under current law, under most circumstances, the summons in an eviction action must be personally served upon the defendant (the tenant), unless this cannot be achieved with “reasonable diligence.” In this case, the summons may be served by leaving a copy of the summons at the defendant’s usual place of abode in the presence of either: (1) a competent member of the family who is at least 14 years old; or (2) a competent adult who resides in the abode of the defendant. The person serving the summons must inform the family member or other person of the contents of the summons. [s. 801.11 (1) (b), Stats.]

Under Senate Bill 179, a court may, by rule, authorize the summons in an eviction to be served by regular mail.

Senate Substitute Amendment 1 provides that use of certified mail shall be required for all eviction cases for which service by mail is authorized by a court.

TIMING OF APPEARANCE AND TRIAL IN EVICTION ACTIONS [Sections 20, 23 and 24]

Under current law, the summons in an eviction action specifies the date that the defendant must appear in court. That appearance date must be set at not less than five days or more than 30 days after the summons is issued. [s. 799.05 (3) (b), Stats.] Also, the court generally sets the matter for a trial or hearing when the tenant makes the initial appearance. Current law does not specify the required timing of the trial or hearing. [s. 799.20 (4) and 799.206 (3), Stats.]

Senate Bill 179 changes the appearance date to not less than five days or more than 14 days after the summons is issued. The bill also specifies that the trial or hearing must be scheduled within 20 days after the date of appearance.

Senate Substitute Amendment 1 changes the appearance date to not less than five days or more than 25 days after the summons is issued. The substitute amendment also specifies that a trial or hearing on the issue of possession of the premises involved in the action must be held and completed within 30 days after the date of appearance, and provides that this provision applies only to residential tenancies.

WHO MAY APPEAR IN SMALL CLAIMS ACTIONS [Section 21]

Under current law, in any small claims action, a person may commence and prosecute or defend an action or proceeding himself or herself, or by an attorney or a full-time authorized employee of the person. [s. 799.06 (2), Stats.]

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent. This provision applies to all small claims actions, not only evictions.

Senate Substitute Amendment 1 clarifies that “member”means a member as defined in s. 183.0102 (15), Stats.:

“Member” means a person who has been admitted to membership in a limited liability company as provided in s. 183.0801 and who has not dissociated from the limited liability company.

DISPOSITION OF PROPERTY LEFT ON RENTAL PREMISES AFTER EVICTION [Sections 9, 10 and 29-46]

Under current law, if a tenant leaves property of value on the rental premises after he or she has been evicted, the property must be removed and stored. The evicted tenant is notified of the location of the property and provided with the receipt needed to obtain possession of the property. The evicted tenant is responsible for the costs of storage. In Milwaukee County, the sheriff must remove and store the property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property. If the landlord does not choose to remove and store the property, the sheriff must do so. [s. 799.45 (3), Stats.]

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise. If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement, or at any other time before the tenant is evicted from the premises. If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Senate Substitute Amendment 1 deletes the bill provision that authorizes a landlord to provide the notice described “at any time before the tenant is evicted,” and provides that any notice that is provided must be provided either when the tenant enters into or renews the rental agreement.

TOWING OF VEHICLES [Sections 5-8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued. If the vehicle is taken by a towing service to any location other than a public highway within one mile from the location in which the vehicle was improperly parked, the municipality or the traffic or police officer must, within 24 hours, provide the towing service with the name and last-known address of the registered owner and all lienholders of record. [s. 349.19 (3m) and (5) (c), Stats.]

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued. “Properly posted” means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately removed. The vehicle may be removed by a towing service at the request of the property owner or property owner’s agent, a traffic officer, or a parking enforcer. A parking enforcer is a person who enforces nonmoving traffic violations and who is employed by a municipality, a county, or the state. Also, the bill requires the Department of Transportation (DOT) to promulgate rules establishing reasonable charges for removal and storage of vehicles under the provisions described above.

Under Senate Substitute Amendment 1, if a property owner has a vehicle towed under the provisions described above, the towing service must notify a local law enforcement agency of the make, model, and license plate of the vehicle and the location to which the vehicle will be towed. The law enforcement agency is required to maintain a record of the notice as well as the identification of the towing service. Also, the substitute amendment prohibits a towing service from removing a vehicle that has been reported to a law enforcement agency as stolen.

In addition, under the substitute amendment, if requested by the municipality in which the vehicle was illegally parked, the towing service must charge the vehicle owner a service fee not to exceed $35. The towing service must then remit the service fee to the municipality according to procedures specified in the statute.

The substitute amendment provides that the rules promulgated by DOT must establish the form, and manner of display, of the notice necessary to qualify as “properly posted” under the provisions described above, as well as guidelines for towing services to notify law enforcement of the removal of a vehicle.

5 Things This Landlords' Attorney Wants For Christmas

With the coming of the holidays, comes list of gifts that people want for Christmas. So I thought I would put together one of my own. So here is a list of the top 5 things that this landlords' lawyer would like for Christmas.

5. That Tenants' Requests For Reasonable Accommodations To Allow for the Keeping of Companion/Comfort Animals Would Actually Be "Reasonable"

The past few years -- and especially this past year -- have seen a large rise in requests by tenants for a reasonable accommodation to landlords' "no pet" or "limited pet" policies specifically to allow for the keeping of a companion/comfort animal. A companion/comfort animal does not need to be specially trained and therefore can be any type of animal including the family dog, cat, gunea pig, or even a miniature horse. A tenant can ask for a reasonable accommodation -- and it should be provided -- as long as the tenant has a disability (i.e. an individual with a physical or mental impairment that substantially limits one or more major life activities) and the accommodation request has a "nexus" to the tenant's disability and will allow them to more fully enjoy a major life activity.

However, somewhere along the line tenants seem to have forgotten about the word "reasonable" in "reasonable accommodations."

It is not reasonable in my opinion to need 5 kittens as companion animals (which were recently born to a landlord-approved pet cat) just because the tenant thinks the kittens are cute and does not want to get rid of the litter.

It is not reasonable in my opinion for a tenant to request a pit bull dog as a reasonable accommodation just because the tenant's relative recently lost their home to foreclosure and can't find a place for their pet "pitty" to live.

It is not reasonable to have to allow a miniature horse as a companion animal because the tenant does not want to have a dog instead because dogs do not live as long as horses do, and if the dog should die it would exacerbate the tenant's mental health issues. Whereas the miniature horse will outlive the tenant so her mental health will be unaffected. Who cares what happens to the miniature horse after the tenant passes.

4. That Tenants Who File Bankruptcy Be Required To Disclose To The Bankruptcy Court That They Are Renters and that the Bankruptcy Court Create A More Efficient Process For The Tenant To "Pay and Stay" or Vacate

If a tenant files for bankruptcy something called the "automatic stay" kicks in that prevents any creditors (yes, that includes landlords) from attempting to collect a debt or in the case of landlords - evict a tenant. Now, tenant/debtors are supposed to disclose in their bankruptcy schedules that they file with the court whether or not they have any "executory contracts or unexpired leases." Without fail, tenants and there bankruptcy attorneys always check the box saying that they have no executory contracts or unexpired leases. I have handled at least 30 of these situations for my landlord clients and not once has the tenant advised the court that they were under an unexpired lease.

A landlord is then required to pay a filing fee, file a motion to lift the automatic stay, wait 14 days for the tenant to object, and if so participate in a hearing before the court, to present evidence that the tenant isn't paying their rent and the landlord should be allowed to proceed to evict the tenant. This process can be expensive and time consuming for a landlord whose hands are legally bound from doing anything until the bankruptcy court says he can.

It would be nice if the court or the bankruptcy trustee would confirm whether or not the debtor is a tenant and whether or not they are up to date with rent and if not, determine if the tenant can get caught up so s/he can stay, or advise the tenant/debtor that they must vacate the landlord's property.

To require a landlord jump through all of these hoops in order to remove a non-paying tenant from his rental property is just another financial drain on landlords. A landlord will spend at least one month (if not more) trying to lift the stay in bankruptcy court. Once that is completed, he then needs to serve the tenant with the appropriate notice, and after that time has elapsed, pay more money to file the eviction, and then wait another 2 weeks or so until the initial appearance in eviction court. As you can see, this process can delay things at least 2 months. So I would like to expedite this somehow. Wishful thinking I know . . . but hey, this is my wish list : )

3. That Tenants Stop Using Jury Trial Demands To "Buy" More Time In Evictions

In my 17+ years of law practice I have probably encountered somewhere between 10-15 requests for a jury trial by a tenant that I am evicting. Not one of those cases have ever resulted in an actual jury being selected. Instead the demand is often made just because it will prolong the case. In Milwaukee County when a jury trial demand is made, the case is tabbed to a large claims judge who often has a very busy caseload and is unable to even get the case into court for a Scheduling Conference for 2 months. Oftentimes, a trial isn't scheduled for months after the Scheduling Conference. On the other hand if a jury trial is not made, the small claims judge in Milwaukee County can hear the eviction within a week in most cases.

I have had jury trial demands filed in failure to pay rent cases where the tenant has no legal defense. Tenant didn't pay rent, notice was properly served, tenant didn't pay past due rent within cure period, and an eviction lawsuit was field. Tenant doesn't deny any of it but wants a jury trial. Now my client gets to sit for months with a non-paying tenant before obtaining a judgement of eviction. And no, landlords rarely ever see those rent amounts from the tenant even if they obtain a money judgment against them later because many tenants are not collectible.

I have had jury trial demands filed in cases where the tenant is being evicted for engaging in criminal activity that is scaring (and at times injuring) fellow tenants and neighbors. Yet, with the jury demand having been made, the landlord, along with the law-abiding tenants and neighbors, have to deal with the scofflaw tenant for months, unless they by chance would get arrested.

The law needs to be changed in this regard. While jury trials are an important part of the judicial system this practice that I am seeing more and more of is clearly an abuse of the system. Perhaps requiring that all jury trials must be held within so many days of the initial appearance or in failure to pay rent cases requiring that all past due rent must be paid up and future rent continue to be paid or the tenant loses his/her right to the jury trial. Something needs to happen to stop this frivolous practice.

2. That All Courts Follow the Law with Regard To Granting "Stays" in Eviction Actions

Sec. 799.44(3), Wis. Stats., is very clear that before a court is allowed to "stay" a writ that the tenant must pay all rent and other charges due as well as any rent that will become due during the period of the "stay." This law is often ignored by the courts to landlords' detriment.

I understand that it is difficult to tell a tenant that you are ordering them to immediately vacate the rental property even when the cause of their non-payment of rent is due to no fault of their own - such as losing a job due to downsizing or health issues -- but that is what the law says. If it is a bad law (and I am not saying that it is) then it can and should be changed through the legislative process.

Let me put this in another context. A tenant that has lost their job or that has encountered a serious medical issue may also not have money to buy food for their family, but that doesn't mean that they are allowed to shoplift food from the grocery store. If they did that they would be arrested.

So why is a landlord required to provide housing for a tenant who's tenancy has been properly terminated and after all proper legal channels have been followed? What makes a landlord so special that s/he gets this special treatment that places them in a different category than any other creditor. Why is a landlord required to house the non-paying tenant to the landlord's financial detriment and risk their ability to continue to provide housing for their paying tenants. Again, for those non-landlords that may be reading this post, most tenants are not collectible, so saying that the landlord will be made whole when they obtain a money judgment against the tenant is not realistic.

1. That All Landlords Join a Landlord Association (such as the Apartment Association of Southeastern Wisconsin - AASEW)

There are more private landlords in Wisconsin than there are teachers but landlords' voices are not anywhere near as powerful as are teachers. The reason for this is that landlords are not organized. Landlords tend to be an independent type that enjoy being their own bosses. That is well and good but landlords need to set that independent spirit aside on occasion for the betterment of themselves and all landlords. Only when landlords unit can positive change occur for them as there is strength in numbers. It is very difficult to survive financially as a landlord these days. But by joining a landlord association, a landlord's life can become a little easier. First, through landlord associations, landlords can create a united voice to challenge bad legislation or champion new legislation. Secondly, landlord associations provide educational opportunities for their members on changes in the law so landlords can stay out of legal trouble. Third, there is camaraderie in joining a landlord association which allows members to rub elbows with other landlords may be facing, or have previously faced, the same struggles that you are having.

If all landlords joined a landlord association and became active in them, we have the money and the numbers to create change that would assist our industry.

____

Oh by the way Santa - if you cant give me any of my wishes on this list, I will settle for a new toy bike with red and white streamers dangling from the handlebars : )

Happy Holidays everyone!

Judge Mary Kuhnmuench Will Be New Small Claims/Eviction Judge in Milwaukee County

In Milwaukee County we get a new small claims/eviction judge each year around August 1st or so. Most judicial rotations are three years long but for some reason --- possibly the high volume, tediousness, pro se litigants, stress level --- the small claims judge rotates every year.

Milwaukee County's new small claims/eviction judge effective July 27, 2012, will be Mary M. Kuhnmuench. Judge Kuhnmuench is currently completing her rotation in criminal misdemeanor court.

Judge Kuenhmuench was elected in 1998, and re-elected in both 2004 and 2010. Prior to being a judge she was an Assistant City Attorney in Milwaukee, an in-house corporate attorney at A.O. Smith and and adjunct professor of business law at Alverno College.

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!

Revised Small Claims Summons Required To Be Used As of November 1, 2011

In a prior post I explained that the small claims jurisdictional limit was increased from $5,000 to $10,000 as of July 1, 2011. This change has necessitated a revision to the mandatory small claims summons form that is required to be used when filing an eviction, replevin, and collection actions under $10,000 (as well as arbitrations confirmations and personal injury claims less than $5,000).

So far, the Clerk of Courts has been accepting filings using the old mandatory summons (1 page form) as well as the revised mandatory summons (2 page form). However, as of November 1, 2011, they will only be accepting the new 2 page summons - SC-500. Remeber that in Milwaukee County you are required to use the Summons that is written in both English and Spanish. All mandatory small claims forms can be found here.

So if you still have some of the old forms available make sure you use them all up by October 31st.

Don't have your eviction delayed because you are using an outdated form!

Small Claims Jurisdictional Limit Increased To $10,000

Wisconsin's small claims jurisdictional limit was increased from $5,000 to $10,000 effective July 1, 2011. This increase was included in Governor Walker's 2011-2013 Budget Bill.

The jurisidictional limit for small claims in Wisconsin was set at $5,000 back in 1995 and has remained the same for 16 years.

I see this as a positive change for debt collectors and potentially landlords.

All eviction actions -- regardless of the amount of rent owed -- must be brought in small claims court as small claims has exclusive jurisdiction of all eviction actions. Because of this, a landlord is allowed to receive a judgment for past due rent well beyond $5,000. So this jurisdictional change will not affect the amount of any past due rent judgement. But until now, a landlord was limited to obtaining a judgment for $5,000 or less in small claims for any physical damages to the rental property caused by the tenant. So this increase in small claims jurisdictional limit will be advantageous for landlords in such a situation.

Additionally, this change will also positively affect landlords bringing straight collection actions (which does not include a cause of action for eviction) against ex-tenants that skipped out owing past-due rent and/or damages greater than $5,000.

Since most tenants are not collectible, I am not sure if this change will greatly affect landlords . . . but it certainly won't hurt them.

It should be noted that this increase in the small claims jurisdictional amount does NOT apply to third-party complaints, personal injury lawsuits, or tort claims.