EXECUTION OF WRIT: Part 1 - The Basics

I have noticed a trend over the last several months of more tenants refusing to vacate a landlord's rental property even after the landlord has obtained a judgment of eviction and been issued a Writ of Restitution ("writ"). As a result of this trend, more and more landlords are being forced to have the writ executed. The execution of the writ is the process by which the Sheriff removes the non-vacating tenant and returns possession of the property to the landlord.

Background Information:

Most eviction lawsuits have 3 causes of action (claims). The first cause of action is for the return of the rental property. This is often referred to as the "eviction" portion, and in Milwaukee County, it is called the "1st cause of action." The 2nd and 3rd causes of action concern the amount the tenant may owe the landlord. The 2nd cause refers to the past due rent that may be owed, and the 3rd cause refers to any claims for physical damages to the unit and/or holdover damages. Together, the 2nd and 3rd causes of action are often referred to as the "money claims."

This post will focus on the 1st cause of action generally and, specifically, on what a landlord must do when a judgment of eviction has been granted and a writ of restitution has been issued, but the tenant continues to reside in the unit.

A landlord typically obtains a judgment of eviction (and the ensuing writ) in one of three ways. First, the tenant fails to show for court, and the landlord is granted a default judgment. Second, the tenant appears in court and contests the eviction, necessitating a trial before a judge. Assuming the landlord proves his/her case, the landlord obtains a judgment of eviction and is issued a writ. Third, the tenant appears in court and admits to breaching the lease. The court commissioner or judge grants a judgment of eviction against the tenant based on that admission and issues a writ.

Many landlords mistakenly believe that after obtaining a judgment of eviction and a writ, they can change the locks and dispose of the tenant's personal property if the tenant fails to vacate. DO NOT DO THIS! If the tenant fails to vacate the unit, even after there has been a judgment and a writ issued, the only legal way to remove the tenant is to hire the Sheriff and to have the writ executed (sec. 799.45, Wis. Stats.) If a landlord attempts to illegally evict a tenant (also referred to as a "self-help" eviction), the landlord is opening himself/herself up to either civil or criminal liability, or both. The tenant can sue the landlord who engaged in a self-help eviction for double damages and attorney fees. While it may seem "unfair" to require the landlord to expend more time and money after s/he has already obtained a judgment of eviction against a non-paying tenant, that is what the law requires.

The Writ of Restitution:

Along with obtaining a judgment of eviction comes the issuance of a Writ of Restitution (writ). A writ is a document that orders the Sheriff to evict the tenant and any other occupants of the rental unit. The writ also contains additional information that will assist the Sheriff in executing the writ, such as the name and address and phone number of the landlord, the landlord's attorney, and the defendant/tenant.

In Milwaukee County, the court does not give you a writ. Instead, the court gives you an Authorization for Writ. The landlord must then take that Authorization to the Clerk of Courts and pay $5 in order to obtain the actual writ. The landlord must then complete the writ and tender it to the Sheriff.

Each county handles the distribution of the writ differently. In Waukesha County (at least last time I was there), a landlord is required to return to court the following day to obtain the writ and pay the fee. The Clerk completes the writ for you in Waukesha. In Racine County, a landlord should obtain a blank writ from the Clerk of Courts before court, complete all requested information on the writ, and present it to the judge when the case is called. The judge will then sign the writ. No fee is required in Racine County. In Kenosha County, a landlord must go to the Clerk of Courts after court and pay $5, and the Clerk will then complete the writ for you and hand it to you. It is advisable to talk to the Clerk of Courts in whatever county you own rental property about the process of obtaining the writ before you appear in court.

A writ is only valid for 30 days. If a landlord does not tender the writ to the Sheriff within the 30-day period, the writ will expire, and the landlord will need to start the entire eviction process over again in order to remove a tenant who is still residing in the property. Yep, you heard me correctly. If the landlord lets the writ expire, the landlord will need to serve the tenant with a new notice, purchase a new summons, have it filed and served on the tenant, and appear in court again. Do not let the writ expire! New landlords (or landlords with no previous eviction experience) should not let a tenant dupe them into not filing the writ with the Sheriff within the 30-day period. Tenants may tell you they need 10 more days, then another 5, then 3 more, and they will be out. If all those extra days add up to 30, the landlord has only himself/herself to blame.

Executing The Writ:

In Milwaukee County, only the Sheriff can legally execute the writ. Before the Sheriff will do this, however, the landlord must hire a moving company. The landlord must obtain a Letter of Authority from a licensed and bonded moving company, and, in return, the landlord must pay a refundable deposit of approximately $350 to the movers.

Once the landlord has engaged the services of a moving company, the landlord should go to the Sheriff's Department for Milwaukee County and bring along the following items:

1. The Authorization for Writ

2. The fully completed Writ of Restitution

3. $130 deposit to give to the Sheriff

4. A set of keys to the unit to give to the Sheriff.

By law, once the writ has been delivered to the Sheriff, the Sheriff must execute the writ within the next 10 days (sec. 799.45(5), Wis. Stats.) Due to the large number of evictions in Milwaukee, it typically takes the Sheriff the full 10 days. Often, the Milwaukee County Sheriff will mail the tenant a 24-hour notice the day before the planned eviction to give them one last chance to vacate on their own. This notice is not legally required; therefore, it is irrelevant whether the Sheriff does it for every eviction. Think of it as a courtesy.

If the tenant still has personal property in the rental unit when the Sheriff arrives to execute the writ, the Sheriff will then determine what of the tenant's personal property should be stored by the moving company and what property is considered to have no value and can be disposed of. After the tenant's personal property has been removed, and if the tenant is still residing in the property, the Sheriff will direct the tenant and any others residing in the unit out of the unit and ensure the unit is secure. If the tenant refuses to leave the unit, s/he will be arrested for Disorderly Conduct. Note that the Sheriff can require the tenant to vacate the specific rental unit, but cannot require the tenant to vacate the apartment building or complex. If the tenant refuses to leave the building, then the landlord must call the police.

It is helpful if the landlord or their agent is present during the eviction to answer any questions the Sheriff or moving company may have. I have heard of one instance where a tenant told the Sheriff that the refrigerator and stove in the unit were purchased by the tenant and were his. This was not the truth. The landlord was not present during the eviction; however, to refute the tenant (or to produce the rental agreement to the Sheriff, which would have shown that the landlord supplied a refrigerator and stove along with the rental), and the appliances were taken to storage. The landlord had difficulty retrieving his property and had to pay a storage fee to retrieve the appliances.

In smaller counties -- those with a population of less than $500,000 -- a landlord is allowed to remove, store, and dispose of a tenant's property himself/herself, and the only role that the Sheriff performs is to supervise the landlord. I do not have experience with this type of eviction, so I cannot provide any additional information beyond the fact that this option is legally available to landlords who own rental property outside Milwaukee County.

Next week, I will write more about some of the smaller details involved with executing a writ that will assist you in the process.