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 hectic week with two trials early in the week and another 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) who actually attempted to evict his tenants by physically removing the roof (which was made of iron sheets) from 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 of 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 attempted to evict a tenant by removing the roof to the rental property, the landlord would be opening himself/herself up to liability for engaging in what is commonly referred to as a "self-help eviction."

Self-help eviction is a general term for any attempt to remove a tenant from a rental property outside the judicial eviction process and the Sheriff.

In Wisconsin, the only way to legally remove a tenant (who refuses to leave) is through the judicial eviction process. Once the landlord obtains a judgment of eviction and is issued the writ of restitution, if the tenant still fails to vacate the unit, the landlord's only legal avenue to reclaim their 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 ignores the order, the landlord cannot forcibly remove the tenant from the property. The landlord must engage the Sheriff to forcibly evict the tenant.

It is illegal in Wisconsin for a landlord to engage in a 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, including Milwaukee and Madison, also have local ordinances prohibiting 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 most landlords know that if a tenant will not vacate voluntarily, they must file an eviction lawsuit. What I think many landlords do not understand, however, is that after they have filed the eviction and obtained a judgment of eviction ordering the tenant to vacate the rental property, if the tenant still refuses to leave, 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 strongly urge any landlord considering skipping this part of the eviction process and resorting to self-help to 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 and a judge or jury finds no self-help eviction, the time and attorney fees to defend against the lawsuit can be substantial. Don't risk it.

I always encourage my clients to err 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 to you. If you use the Sheriff's services and the Sheriff removes the tenant, or otherwise determines that the unit has been abandoned, and a tenant later files a lawsuit for illegal eviction, the tenant must 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 : )