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 : )