New Landlord-Tenant Law - Act 317 - Is Effective on April 18, 2018.

On April 16, 2018 Governor Walker signed into law 2017 Wisconsin Act 317 which is Wisconsin's newest Landlord-Tenant law. The law was published yesterday, April 17th, which means that it will become effective tomorrow, April 18, 2018.

It is a very large law -- 8 1/2 pages long -- too much for me to cover in this post. I have chosen to focus on the portions of the law that affect Landlord-Tenant law specifically. There are other portions of the law that will affect Landlording in general, however, so I recommend that you review the entire law.

ASSISTANCE ANIMALS

• Repeals Wis. Stat. § 106.50(2r)(bm) entitled “Animals Assisting Persons with Disabilities" which was a very confusing provision and only focused on animals that assisted people with visual, hearing, or mobility impairments and only applied to animals that were specially trained.
• Replaces the above statutory section with two separate provisions, one addressing Animals That Do Work or Perform Tasks for Persons with Disabilities, and one for Emotional Support Animals. Both sections provide guidance on the law regarding assistance animals.

Animals That Do Work or Perform Tasks for Individuals with Disabilities (“Animal")

• If a rental applicant/tenant (“Tenant") has a disability and a disability-related need for an Animal, it is discrimination for a Landlord to do any of the following because the Tenant keeps such an Animal:

1. Refuse to rent;
2. Cause the eviction of;
3. Require extra compensation from the Tenant as a condition of continued residence; or
4. Engage in the harassment of the Tenant.

• If a Tenant wants to keep an Animal, the Landlord may request -- unless the disability and the disability-related need is apparent or known -- that the Tenant provide:

1. Reliable documentation that the Tenant has a disability; and
2. Reliable documentation of the disability-related need for the Animal.

• A Tenant who keeps an Animal shall accept liability for damage to the premises caused by the Animal.
• A Landlord can deny a Tenant the ability to keep an Animal if:

1. The Tenant is not disabled, does not have a disability-related need for the Animal, or fails to provide the necessary documentation;
2. Allowing the Animal would impose an undue financial and administrative burden or would fundamentally alter the nature of services provided by the Landlord;
3. The specific Animal poses a direct threat to a person's health or safety that cannot be reduced or eliminated by another reasonable accommodation;
4. The specific Animal would cause substantial physical damage to a person's property that cannot be reduced or eliminated by another reasonable accommodation.

Emotional Support Animals (“ESA")

• An ESA is defined as an animal that provides emotional support, well-being, comfort, or companionship to an individual but is not trained to perform tasks for the benefit of a disabled person.
• If a rental applicant/tenant (“Tenant") has a disability and a disability-related need for an ESA, it is discrimination for a Landlord to do any of the following because the Tenant keeps an ESA:

1. Refuse to rent;
2. Cause the eviction of;
3. Require extra compensation from the Tenant as a condition of continued residence; or
4. Engage in the harassment of the Tenant.

• If a Tenant wants to keep an ESA, the Landlord may request -- unless the disability and the disability-related need is apparent or known -- that the Tenant provide:

1. Reliable documentation that the Tenant has a disability; and
2. Reliable documentation of the disability-related need for the ESA from a licensed health care professional.

NOTE: A “licensed health care professional" is defined as a physician, psychologist, social worker, or other health care professional who satisfies all of the following:

1. Licensed or certified in the state of Wisconsin; and
2. Acting within the scope of his or her license or certification.

• A Tenant who keeps an ESA shall accept liability for damage to the premises caused by the ESA.
• A Landlord can deny a Tenant the ability to keep an ESA if:

1. The Tenant is not disabled, does not have a disability-related need for the ESA, or fails to provide the necessary documentation;
2. Allowing the ESA would impose an undue financial and administrative burden or would fundamentally alter the nature of services provided by the Landlord;
3. The specific ESA poses a direct threat to a person's health or safety that cannot be reduced or eliminated by another reasonable accommodation;
4. The specific ESA would cause substantial physical damage to a person's property that cannot be reduced or eliminated by another reasonable accommodation.

• If a Tenant, for the purpose of obtaining housing, intentionally misrepresents that s/he has a disability or misrepresents the need for an ESA to assist with the disability, the Tenant shall pay a fine of not less than $500.
• If a licensed health care professional, for the purpose of allowing a patient to obtain housing, misrepresents that the patient has a disability or a disability-related need for an ESA, the health care provider shall pay a fine of not less than $500.

CHARGING FOR LANDLORD'S TIME AND MATERIALS

• Current law states that if Landlord elects to repair the damage caused by the Tenant then the Tenant must reimburse the Landlord for the reasonable cost.
• The new law defines what “Reasonable Costs" include the following:

1. Materials or labor provided by Landlord;
2. At a reasonable hourly rate, the time a Landlord spends doing the following: (a) purchasing or providing materials, (b) supervising an agent of the Landlord, and/or (c) hiring a third-party contractor.

ABATEMENT

• Current law states that if the rental property in untentable and the Tenant remains in the property that rent can be abated.
• New law adds that the Tenant can only abate rent if s/he remains in the property and “the condition materially affects the health or safety of the tenant or substantially affects the use and occupancy of the premises.

CREDIT AND BACKGROUND CHECKS

• Essentially incorporates Wis. Admin, Code § ATCP 134.05(4) regarding credit checks and increases the amount that can be charged by $5 and adds a new provision regarding charging out of state applicants for background checks.
• A Landlord may require a rental applicant to pay the Landlord's actual cost, up to $25, to obtain a consumer credit report on the applicant from a consumer credit reporting agency that compiles and maintains files on a nationwide basis.
• A Landlord must notify the applicant of the charge prior to ordering the report and must provide a copy of the report to the applicant if applicant paid for the report.
• A Landlord cannot require an applicant to pay for the report is the applicant provides a copy of his/her credit report that is less than 30 days old, to the Landlord prior to the Landlord ordering the report.
• A Landlord may require an applicant who is not a resident of Wisconsin to pay the Landlord's actual costs, up to $25, to obtain a background check.
• A Landlord must notify the applicant of the charge prior to ordering the report and must provide a copy to the applicant.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

ELECTRONIC DELIVERY OF CERTAIN DOCUMENTS/INFORMATION

• A rental agreement may include provisions that allow a Landlord to provide and indicate agreement to send the following via electronic means:

1. A copy of the rental agreement and any document related to the rental agreement;
2. A security deposit and any documents related to the accounting and disposition of the security deposit and security deposit refund;
3. Any promise made by the Landlord, prior to entering into the rental agreement to clean, repair, or otherwise improve any portion of the rental unit;
4. A notice for Landlord to enter the rental unit.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

RENT INCLUDES LATE FEES

• In the section regarding Notices Terminating Tenancy (Wis. Stat. § 704.17) the term “rent" is defined to include any rent that is past due as well as any late fees owed for rent that is past due.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

INCORRECT AMOUNT IN NOTICE

• A notice for failure to pay rent or any other amount due under the rental agreement that includes an incorrect statement of the amount due is still valid unless any of the following apply:

1. The Landlord's statement of the amount due is intentionally incorrect; or
2. The Tenant paid or tendered payment of the amount that the Tenant believes to be due.
• NOTE: This portion of Act 317 first applies to rental agreements entered into or renewed as of the effective date of the new law which is April 18, 2018.

CONSOLIDATED COURT AUTOMATION PROGRAMS (CCAP)

• The Director of State Courts may not remove case management information from CCAP for any civil case that is not closed, confidential, or sealed for the following periods:

1. If a writ of restitution has been granted in an eviction action - 10 years;
2. If an eviction action has been dismissed and no money judgment has been docketed – 2 years.

NOTARIZATION

• A Court may not require that a person filing a summons or complaint under ch. 799 to have the summons and complaint notarized.

CONTESTED EVICTION

• Prior law stated that in an eviction, garnishment, or replevin action if any party claims that a contest exists, the matter shall be scheduled for a hearing before the judge.
• New law states that in an eviction, garnishment, or replevin action, if any party raises valid legal grounds for a contest, the matter shall be scheduled for a hearing before the judge.

SERVICE OF NOTICES

• If a Landlord gives a notice terminating tenancy via certified mail, proof of certified mailing from the U.S. Post Office is sufficient to establish that proper service has been provided. An affidavit of Service may not be requested to establish proper service has been provided.

WAIVER

• It shall not be a defense to an eviction action or a claim for damages that the Landlord or Tenant has previously waived any violation or breach of any terms of the rental agreement, including, but not limited to, the acceptance of rent or that a custom or practice occurred or developed between the parties in connection with the rental agreement so as to waive or lesson the right of the Landlord or Tenant to insist upon strict performance of the terms of the rental agreement.

EMERGENCY ASSISTANCE (“EA")

• Prior law said that the Court shall stay an eviction if the Tenant applies for EA.
• In McQuestion v. Crawford, 2009 WI App. 35, 316 Wis.2d. 494, 765 N.W.2d 822, the Wisconsin Court of Appeals held that any EA stay may be in effect for only a “reasonable period of time."
• New law requires that:

1. No EA stay may be granted after a writ of restitution has already been issued; and
2. If a stay is granted the stay may not be for more than 10 working days.

REPRESENTATIONS TO COURT AS TO PREPARATION OF PLEADINGS OR OTHER DOCUMENTS

• If an attorney drafts or assists in drafting a pleading, motion, or other document for a self-represented person. Any such document must contain a statement immediately adjacent to the person's signature that “This document was prepared with the assistance of a lawyer, followed by the name of the attorney and the attorney's state bar number."