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

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

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

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

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

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

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

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

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

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

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

1. A tenant hosts a nuisance party

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

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

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

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

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

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

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