Building Management and Building Maintenance Are Considered To Be "Essential" Under Governor's Emergency Safer At Home Order

On March 24, 2020, Governor Evers authorized Andrea Palm, Secretary-Designee for the Department of Health Services to Issue Emergency Order #12 entitled the Safer At Home Act.

With regard to landlords and property managers, the Order states that those involved in building management and building maintenance are considered to be "essential" and therefore may leave their residence to provide services or perform work necessary to offer, provide, operate, maintain, and repair Essential Infrastructure.

Landlords and Property Manager are also mentioned in #3 of the Order entitled "Prohibited Activities" which states that Landlord or rental property managers shall avoid entering leased residential premises unless emergency maintenance is required.

So if you have a vacant rental unit and need to show it to a prospective tenant, that is fine.  However, if the tenant still resides in the rental unit then you are not allowed to show the unit to a prospective tenant.

The Order takes effect at 8 am on March 25, 2020 and remains in effect until 8 am on April 24, 2020.

UPDATE 4/28/20: The above has been extended until May 26, 2020 at 8 am per Governor's Order #28

Stay Healthy

T

Freddie Mac and Fannie Mae Offer Multifamily Property Owners Mortgage Forbearance If They Suspend All Evictions For Tenants Affected By The Coronavirus

On March 23, 2020 the Federal Housing Finance Agency (FHFA) announced that Freddie Mac and Fannie Mae will offer multifamily property owners mortgage forbearance with the condition that they they suspend all evictions for renters unable to pay rent due to the impact of the coronavirus.

The eviction suspensions would need to remain in place for the entire duration of the time that the property owner remains in forbearance.  The forbearance is available to all multifamily properties with a Freddie Mac or Fannie Mae backed performing multifamily mortgage negatively affected by the coronavirus pandemic.

For more information please read the entire FHFA notice.

GUEST POST: What Are Landlords Supposed To Do In This Age of COVID-19?

This is a guest post by Atty. Jennifer Hayden of Petrie + Pettit S.C.

Updated on 3-24-20

What the H*ll Are We Supposed to Do Now?

We honestly have no idea. We are in uncharted waters. But we do know that under the shelter of each other, we all survive.

These are our current suggestions based on the ever-changing information we are being provided with. Please let us know your thoughts, comments and suggestions below.

Daily Operations – Keep it Sane and Clean

With prospective tenants, handle everything possible by e-mail or mail. If you have to meet them in person, follow the CDC recommendations and gloves, hand sanitizer and social distancing. You can ask prospective tenants if they have cold or flu symptoms (as long as you ask every prospective tenant the same question) and decline to show them a unit if they confirm. If a current tenant informs you that they are not willing to allow prospective tenants into their unit while they are residing in it based on health concerns, we suggest you abide by that request. Similarly, if a current tenant is self-isolating or quarantining, his or her unit should not be shown to prospective tenants.

UPDATE: The City of Milwaukee Order from the Commissioner of Health prohibits a landlord or rental property manager from entering a leased residential rental premises unless a maintenance emergency exists, effective at 12:01 a.m. on March 25, 2020. Although we don’t have much guidance on the specific interpretation of these orders and later language suggests that real estate services are a professional service and an essential business, the specific language regarding entry into an apartment with a residential tenant to show the apartment to prospective tenants gives me pause.

If you haven’t done so already, immediately implement cleaning and sanitizing recommendations set forth by the Center for Disease Control and Prevention (“CDC”) for all public areas. You may wish to consider closing or restricting access to any non-essential public areas such as community rooms or fitness centers. Although this could theoretically give rise to a claim for rent abatement or that you breached a tenant’s lease, given the circumstances and the forced closure of other businesses, it is a defensible position.

Communicate regularly with current tenants to keep them informed and confident that you are following the recommendations of the CDC and any applicable orders from government entities or agencies.

Unpaid Rent

Consider instituting a consistent deferment or repayment plan for tenants who contact you and inform you they may not be able to make rental payments due to a COVID-19 related layoff or job loss.

Mediate Milwaukee has informed us that they will be continuing to perform mediations for free and by phone.

You can continue to issue notices for the non-payment of rent. As you saw in Tristan’s prior blog posts, most counties have restricted eviction actions in some capacity but are still accepting filings. Whether it is ultimately faster to file now and potentially have the case adjourned or to wait until the courts are holding hearings again and then file depends on the exact timing of any adjournments and how the court handles new filings once the court has resumed its normal practice. We have been getting notice that previously scheduled hearings in Milwaukee County are now being adjourned into June.

You should continue to issue notices for non-rent breaches, particularly those related to behavioral issues or conflicts between tenants. As more and more people are going to be home all day, we do expect to see some increases in these issues. Though you ultimately will not be able to proceed with an eviction action for some time, having issued notices will put you in the best position to proceed once you are able to do so.

What if a Tenant has COVID-19?

This one is tricky. This is our current advice. Its probably subject to change as this situation continues to evolve.

1. In general, a tenant is not required to inform his or her landlord if the tenant has tested positive for COVID-19 or has been exposed to it. As a result, landlords should not ask tenants if they have tested positive for COVID-19 or have been exposed to it, or the landlord may be violating privacy laws.

2. However, if a tenant requests that maintenance or staff come into their unit, you can confirm whether there is a anyone in the unit with cold or flu-like symptoms so that your staff can take necessary precautions.

3. If you have a confirmed or suspected case of COVID-19 at your property, you should notify your local public health department immediately for guidance and next steps on communicating with tenants.

4. If you have learned that a tenant is self-isolating/quarantining, you must respect the quarantine and take reasonable steps to respond. It is reasonable to send a notification to your staff that they should not enter the tenant’s unit without a manager’s approval.

5. If you believe that a tenant has tested positive or been exposed to the virus, you should put your pandemic plan into action.

We will continue to update these posts as this situation develops. Please feel free to let us know your thoughts and tips for navigating these new challenges.

Update On Court Closures and Related Issues Pertaining to COVID-19 - UPDATED 3-19-20

UPDATED ON 3-19-20

Here is the latest on the court closures - 

Milwaukee County

Most of my firm’s pending eviction cases in Milwaukee County have been rescheduled for mid to late April.

The Milwaukee County Sheriff is no longer executing any writs that were previously filed and they are no longer accepting the filing of any new writs.  So, if your tenant is still living in the unit they will be allowed to do so until at least April 3^rd,  unless they voluntarily move out. The Sheriff could not provide me with a date that they would resume executing writs.

Waukesha County

The Waukesha County Chief Judge also signed an Order Regarding Emergency Temporary Measures that affects all court appearances – including evictions --- and  accompanying guidelines which became effective as of March 13^th.  Essentially the guidelines state that all contested matters requiring in-person appearances, including small claims, and any hearing where evidence will be taken by other than telephonic means (including all de novo hearings) are suspended until April 12, 2020. Clerks in the individual branches will schedule these proceedings as the Court’s calendar permits.  You should contact the clerk directly.  Any hearing that can be done by phone will proceed as scheduled, included but not limited to stipulated divorces, name changes, scheduling conferences, status conferences, motion hearings.  These are guidelines only; if any party has questions regarding scheduling with a specific court, they should contact the branch directly for guidance.  My firm has an initial appearance on an eviction scheduled for Monday and it is still on and we are appearing by phone. So it appears that Waukesha Co. will still accept new eviction filings.

Washington County

Washington County does not have any Emergency Temporary Order in place for COVID-19 but my firms was contacted by a Washington County court in which we have pending eviction matters and advised us that they were going to be adjourned until April 13th. We were told that the individual judges were each handling their pending calendars and cases as they saw fit.

Mediation

I was contacted by Mediate Milwaukee after they read my last blog post on COVID 19 and they indicated that they could be of assistance to landlords while the courts are shut.  They indicated that most of their landlord tenant mediation occurs via telephone with supplemental communication via email.  If you are interested in working out an informal resolutions with your tenant they may be of assistance to you.  If interested please contact Amy Holtz, Executive Director of Metro Milwaukee Mediation Services, Inc., at 414-939-8800 or amy@mediatemilwaukee.com

Milwaukee County Orders Emergency Temporary Orders Closing Eviction Court Due to COVID-19 Pandemic.

Well this has certainly been an “interesting” few days . . . and I assume that it will continue for the unknown future.  I know that I have seen more empty store shelves devoid of toilet tissue, Kleenex, and paper towels than I ever have before.  I’m sure that you have all been inundated with emails from your bank, vet, accountant, favorite restaurant and more, about COVID-19 and what changes are being made by those businesses in an attempt to mitigate the spread of the pandemic.  Well you can consider this blog post to be your email from your friendly Landlord-Tenant Law Attorney.

Effective today, March 16th, the Chief Judge in Milwaukee County ordered that all small claims court appearances, which include evictions, are suspended until after April 3, 2020, or until further Order of the Court.  Any court dates scheduled prior to April 3, 2020 will be rescheduled by the clerk and written notice will be sent out to the parties.

The Order goes on to say that no one may appear in person for any small claims hearing between now and April 3, 2020 or until further Order of the Court, unless it is an emergency matter, which has been approved by the judge or court commissioner.  The Court’s Guidance memo states that an emergency matter would be limited to such things as a Tenant’s request for stays of writs.

I have learned that the filing of an affidavit of default on a Stipulated Dismissal of an Eviction, when the tenant does not follow through on what they agreed to, is NOT considered to be an “emergency matter.”

Here is a copy of the Order and the attached guidelines for your review.

What does this mean to a landlord needing to file an eviction?

Well, while you are not precluded from drafting and serving notices terminating a tenancy and you are not precluded from drafting and serving an eviction lawsuit there are some practical matters with regard to the service of the eviction that may pose some concerns.

Wisconsin eviction law states that in eviction actions, the return date for a summons served upon a resident of Wisconsin shall be not less than 5 days nor more than than 25 days from the issue date, and service shall be made not less than 5 days prior to the return date. Wis. Stat. § 799.05(3)(b).

Most likely this pandemic and the restrictions enacted as a result will get worse before they get better.  I anticipate that the Emergency Temporary closure of the courts will be extended beyond April 3^rd.  While I hope that I am wrong, I don’t think that I will be.

So let’s say that you plan on filing your eviction within the next 3 weeks and set the return date for April 6^th for instance, what will happen if the court extends the closure until April 15^thor April 30^th?  Well, should the Court end up extending the Emergency Temporary Orders the Court it will have to adjourn your return date until whenever the Emergency Orders might be terminated.  Since we have no crystal ball, neither you nor I know when that will be.  Likely, if that happens, you will need to file an Amended Eviction Summons and reserve it so as to comply with the service requirements of Wis. Stat. § 799.05(3)(b) set forth above.  The result being that you would incur another service of process fee and your eviction would not get into court any sooner..

As I see it, a landlord or property manager has one of three options.  The first option is to file the eviction prior to April 3, 2020 and hope that they Emergency Orders are not extended, but if they are you will need to be prepared to file an Amended Summons and incur another service fee.  The second option would be to hold off on filing the eviction until the Emergency Temporary Orders have ended, whenever that will be.  The third option is to try and informally work with your tenant to come up with a resolution that works for both of you.

None of the options are ideal.  Whether or not a tenant pays their rent doesn’t affect the landlord’s obligation to pay its mortgage.  And if the tenant is engaging in a non-rent breach that is affecting the quiet use and enjoyment of the premises by other tenants, any further delay is certainly not a good option for the landlord or the other tenants.  Can you and the tenant arrive at a solution that works for both of you until the pandemic ends and the courts reopen?  I don’t know the answer to this question, but it appears that we are entering a brave new world, and we will need to be creative in order to survive.

Good luck and stay healthy.

T