Landlords Sue City of Milwaukee To Stop Residential Rental Certificate Ordinance

On December 29, 2009, three landlords filed a lawsuit against the city of Milwaukee in an attempt to stop the new Residential Rental Certificate Ordinance that was recently passed.

The lawsuit includes a complaint, motion for temporary injunction, ex parte motion for temporary restraining order (TRO) and supporting affidavits. Essentially, the plaintiffs are arguing that the ordinance as written is (1) unconstitutionally vague, (2) contains fatal defects, (3) fails to provide for an impartial review and (4)interferes with their constitutional right to contract with their tenants.

I would suggest that you read the entire lawsuit but I will attempt to summarize the plaintiffs' main arguments.

1. 1st claim: The ordinance is unconstitutionally vague

The plaintiffs' argue that the ordinance contains terms and phrases that are so vague that they do not properly notify landlords owning rental properties in the two designated areas as to what specific conditions will result in a denial of a residential rental certificate or the revocation of a certificate. The ordinance gives the DNS Commissioner and his inspectors the subjective power to determine whether the conditions in a rental unit constitute a denial or revocation of the certificate. This subjective power will result in a non-uniform application of the ordinance.

The plaintiffs cite 7 examples within the ordinance where the landlord does not have sufficient notice as to what specific conditions or number of conditions will trigger a denial or revocation of a rental certificate by the city.

2. 2nd claim: The ordinance contains fatal defects

Basically this argument states that the ordinance as written contains terms which are unclear, have no definition, and fail to set forth clear standards for which a rental certificate will be granted. Additionally it is argued that the ordinance gives the DNS Commissioner and his inspectors the arbitrary power to grant, deny or revoke a rental certificate without providing specific standards as to how that discretion should be used.

The plaintiffs provide 9 examples within the ordinance where significant terms are not defined or are unclear. Essentially their argument is that the standard as to what will casue the issuance of a rental certificate is a subjective standard contained only in the minds of the Commissioner and his inspectors (and essentailly that the subjective standard will most likely vary from one inspector to the next). This argument also focuses on the fact that the ordinance allows for the DNS Commissioenr to draft rules or regulations which have not been made a part of the ordinance. This means that the Commissioner could change the rules at any time and without providing owners prior notice of the changes. The rules and regulations are not required to be made publicly available since they are not contained in the ordinance itself.

3. 3rd claim: Failure to provide impartial review

Under the ordinance as written if a landlord does not agree with the decision rendered by the city inspector, the landlord can appeal that decision to the Commissioner of DNS -- the employer of the inspector that made the intial decision. The plaintiffs argue that as written the ordinance allows the individual and agency that made the unwritten rules for inspection and then subjectively applied those rules, to also act as the decision-maker for the review of any contested determination. Wisconsin Statutes Sec. 68.11(2) require that all municipalities provide an "imparital decision-maker . . . who did not participate in making or reviewing the initial determination" to preside over any review.

4. 4th claim: Interference with the constitutional right to contract

According to the ordinance, all rental units within the two designated areas will be required to have a rental certificate in place (if there is a tenant residing in the unit) as of January 1st, 2010 --- Friday. If no certificate is in place by 1/1/10 then the owner of the rental will be in violation of the ordinance as written. The argument made by the plaintiffs is that since the ordinance does not provide for the rental certificates to be issued until after an inspection takes place (which will be at least 30 days after 1/1/10) that landlords will be forced to terminate the tenancies of their tenants or else be in violation of the ordinance. By being forced to issue a termination notice to their tenants, the plaintiffs argue that the city isinterfering with the landlords and tenants rental agreement - and by doing so they are interfering with a landlords right to enter into a contract with his/her tenant.

The plaintiffs are asking that the court to temporarily enjoin the city from enforcing the residentail rental certificate ordinance. They are also asking the court to issue an order declaring that the ordinance is invalid. Finally the plaintiffs are asking the court to permanatly enjoin the city from enforcing the ordinance.

This lawsuit has been tabbed to Judge Timothy Witkowiak.

A hearing on the plaintiff's motion for a temporary restraining order was held earlier today before Judge Timothy Dugan. Judge Dugan denied the landlords' motion for a TRO without reaching the underlying problems with the ordinance. One of the requirements in order to be granted a TRO is that some "irreperable harm" must be demonstrated. Judge Dugan felt that becasue no landlord has been issued a citation by the city and because the city has not tried to remove any tenant from the plaintiff's' rental units, as of yet, that the plaintiffs failed to demonstrate any irreperable harm."

Mayor Signs Milwaukee's Residential Rental Certificate Program Ordinance

About 1 hour before the close of business yesterday, December 10, 2009, Mayor Tom Barrett signed the city of Milwaukee's Residential Rental Certificate Program ordinance into law. Mayor Barrett left everyone waiting and wondering if he would sign it as the deadline to do so was the close of business yesterday.

The ordinance can be read in its entirety here.

The Preinspection Checklist can be found here. The checklist gives a detailed overview of all items that DNS will be inspecting when they come knocking in 2010. The landlords in the two designated areas will probably get pretty familiar with that checklist during the next 5 years of the "pilot program."

The ordinance will go into effect as of January 1, 2010.

MILWAUKEE'S RESIDENTIAL RENTAL CERTIFICATE ORDINANCE PASSES

Earlier today by a vote of 9-5 the city of Milwaukee's Residential Rental Certificate Program ordinance was passed by the Common Council.

Voting in favor of the new ordinance were Aldermen Ashanti Hamilton (1st district), Nic Kovac (3rd district), Robert Bauman (4th district), Milele Coggs (6th district), Willie Wade (7th district), Robert Puente (9th district), Michael Murphy (10th district), Terry Witkowski (13 district), and Willie Hines, Jr. (15th district).

Voting against the ordinance were Aldermen James Bohl, Jr. (5th district), Robert Donovan (8th district), Joe Dudzik (11th district), James Witkowiak (12th district), and Tony Zielinski (14th district).

Alderman Joe Davis, Sr. was not present and did not vote.

There was very little discussion on the proposed ordinance prior to its vote. Alderman Kovac (the primary sponsor of the ordinance) spoke in favor of the revised ordinance and gave a summary of the revisions that were made. Alderman Robert Donovan then spoke out against the ordinance and summarized some of the criticism that citizens had with the proposal as expressed at the public hearing earlier. Alderman Murphy then spoke in favor of the ordinance and emphasized that it is a pilot program that will be reviewed each year.

If you are interested in viewing the video recording of the vote and other related information just click here.

This new ordinance will make it mandatory for all landlords who own rental property in two designated areas of the city (the UWM area on the city's east side and the Lindsay Heights neighborhood on the city's north side) to apply for a rental certificate in order to continue renting out their rental properties. When applying for the certificate the owner will need to pay a $85 per unit fee and allow an inspector from the city's Department of Neighborhood Services to inspect the interior of the unit.

For more detailed information on this ordinance please refer to my prior post.

The AASEW was opposed to this ordinance and had hired legal counsel to point out the various legal problems with the ordinance and its drafting to the ordinance's sponsor, Alderman Nic Kovac. On a positive note, the original ordinance that was proposed was revised to address some of the issues and concerns that were brought to light by the AASEW. A copy of the newly enacted ordinance (Proposed Substitute C) can be read in its entirety here.

The Department of Neighborhood Services also put together a Residential Rental Inspection Program Preinspection Checklist which it is assumed will be sent to the owners of rental property in the two designated areas prior to the inspection. This checklist sets forth the specific types of violations that DNS will be looking for during its inspection. While the checklist is still pretty extensive it is still better then just having the subjective term "disqualifying violation" in the ordinance as was the case with the prior version.

This ordinance will become effective January 1, 2010.

As this ordinance is phased in please let me know your thoughts as to how it is being implemented. This is a pilot program and it will be reviewed annually so any and all input from affected landlords is vital.

MILWAUKEE'S RESIDENTIAL RENTAL CERTIFICATE PROGRAM VOTE PUSHED BACK 1 CYCLE

The Common Council did not vote on the passing of the city's proposed Residential Rental Certificate Program earlier today as was planned. Instead the Comon Council voted 9-5 to hold the proposed ordinance for 1 cycle (1 month) for further review.

The proposed ordinance, which would require all rental property owners in the UWM-area and Lindsay Heights neighborhood on the north side of Milwaukee to pay an $85 fee per unit fee and submit to an internal inspection of in order to be able to rent out their property, passed out of the ZND committee last week by a vote of 3-2. The proposed ordinance was to be voted on by the Common Council earlier today.

In response to the setback of having the proposed ordinance pass out of committee the AASEW, who represents approximately 680 landlords in Milwaukee and the surrounding areas, retained legal counsel to review the ordinance for procedural and drafting errors. Errors were found and were communicated to the City Attorney. The AASEW wrote to the President of the Commom Council and the various council members and pointed out its many concerns with the ordinance as written.

Prior to a vote being taken as to whether or not the ordinance should be passed, a motion was made by Alderman Donovan to hold the ordinance for one cycle (1 month) to further review any problems and concerns. This motion passed by a vote of 9-5. It is assumed that the ordinance will be revised and then referred back to the ZND committee for an additional public hearing.

I will keep you advised as to what happens next.

For additional information on the proposed Residential Rental Certificate Program please refer to my earlier post.

Read Tom Daykin, of the Journal Sentinel, blog post about this change of events here.

Hearing On Milwaukee's Residential Rental Certificate Program to be Held on October 27th at 10 am

A hearing on Milwaukee's proposed Residential Rental Certificate Program will be held before the Zoning and Development Committee on October 27, 2009 at 10 AM in room 301 of Milwaukee's CIty Hall.

It is at this hearing that people may speak in favor or against the proposed ordinance. The ZND committee will then decide whether or not the proposed ordinance should be referred to the common council for a vote by the alderpersons.

If you would like to read more about the proposed ordinance that will affect landlords in the UWM area and Lindsay Heights area on the north side of Milwaukee you should refer to my earlier post on the subject.

If you want to be heard. You need to be present at this hearing.

To determine your alderman and contact information go here.

City of Milwaukee's "Residential Rental Certificate Program" Is Unveiled

Well I have finally been able to get my hands on a preliminary copy of the city of Milwaukee's proposed mandatory rental inspection ordinance. The ordinance is sponsored by Alderman Kovac, Wade, Davis and Hines. The ordinance refers to the proposed program as a "Residential Rental Certificate" program. The program is really just a variation on "landlord licensing" and mandatorty rental inspection programs. I would encourage you to read the enitre proposed ordinance, but I have also set forth the key points below:

- This will be a 5 year pilot program.

- The targeted area includes the UWM area on the city's east side and the Lindsay Heights neighborhood on the city's north side. These areas were selected because the city believes the areas need to be monitored to prevent deterioration. Allegedly these two areas include older housing stock, have a high density of rental properties, have a higher percentage of complaints, and have high tenant turnover. The city feels that frequent inspections of the rental properties in these two areas are needed to maintain safe, decent, and sanitary living conditions.

- Every rental unit in the selected areas must apply for and receive a rental certificate before the owner is allowed to rent out the unit.

- The ordinance includes duplexes and larger multi-unit rental properties. Owner-occupied duplexes are excluded.

- The owner must also complete, sign and submit an application to the city that will include the owner's legal name, the address of the rental property, the owner's phone number, and the owner's date of birth.

- A fee of $85 must accompany each rental unit application.

- Prior to the city issuing a rental certificate the unit will be subject to an internal and external inspection by the Department of Neighborhood Services (D.N.S.).

- DNS will conduct the inspection within 60 days of receipt of the application.

- The owner must notify the tenant at least 2 days in advance of the inspection.

- A fee of $50 will be imposed if DNS is unable to gain access to the unit for inspection.

- If during the inspection DNS finds a "disqualifying violation" (defined as a condition that affects safe, decent and sanitary living conditions or other conditions that violate the city building code, building maintenance code or zoning code) the unit will be issued a 1 year certificate.

- Any violation identified during the inspection must be abated within a reasonable amount of time (to be determiend by DNS).

- If conditions are found that are determined to constitute an imminent danger to health and safety, DNS shall order the condition to be remedied and may limit or prohibit occupancy where approporiate.

- DNS shall reinspect the unit as necessary to determine if any "disqualifying violations" have been remedied. A reinspection fee may be charged.

- If no disqualifying violations are found the unit will be given a 4 year certificate.

- A temporary certificate can be given for up to 30 days if the disqualifying violations do not constitute a hazard to the occupants of the rental and if a plan to correct the violations is submitted and approved by DNS.

- After the certificate expires the owner will be required to renew the certificate and submit to another inspection and pay another $85 fee per unit.

- If after the issuance of a 4 year certificate, DNS determines learns that there is a building or zoning code violation, the 4 year certificate can be revoked and the city can choose to replace the 4 year certificate with a 1 year certificate.

- If at any time after the issuance of a 4 year certificate or a 1 year certificate, DNS determines that there are building or zoning code violations that are critical and constitute an unsafe or unfit condition, the city can revoke the certificate.

- Any violation identified after a certificate has been issued must be abated within a reasonable amount of time (to be determiend by DNS).

- Any person who purchases a rental unit in the targeted areas must apply for a rental certificate and pay the accompanying fee within 30 days of the purchase.

- Any person that sells a rental unit in the targeted areas must notify the purchasor of the property that a residential rental certificate is required by the city.

- An owner that fails to apply for a residential rental certificate will be fined $100 for the first infraction. If the owner fails to respond to a subsequent notices by the city the fine will increase to $150.

- Residential rental inspection fees will be charged against the owner's real estate and will be considered a "special charge."

If you would like to contact your alderman you can find contact information here.

Free Landlord-Tenant Law Seminar To Be Held On October 24, 2009

On Saturday October 24, 2009 from 9:30 am - 4:30 pm at the UWM Union Ballroom the UW-Milwaukee COAST and the City of Milwaukee Department of Neighborhood Services will be offering a free landlord-tenant law seminar to the public. This seminar is NOT restricted to just landlords and tenants in the UW-M area.

On behalf of the AASEW, I will be presenting a portion of the seminar on the topics of causes for eviction, notices terminating tenancy and the eviction process. Additional topics that will be covered include applicant screening, rental documents, management of rental properties, fair housing issues, DNS inspection process, and the role of law enforcement.

For more detailed information regarding who the presenters will be and how to register please refer to the attached flyer.

UPDATE ON MILWAUKEE'S PROPOSED MANDATORY RENTAL UNIT INSPECTION PROGRAM

A friend of mine was at a meeting this morning with the City of Milwaukee's Budget Director and learned some more information on the City's proposed mandatory rental unit inspection program.

First, the proposed ordinance is in the final stages of drafting and will be released in the near future.

Second, it will be a 5 year pilot program in the UWM area only.

Third, there will be a fee of $40 per landlord and a $35 per unit inspection fee.

Fourth, the pilot program must be approved by the city's common council each and every year in order for it to continue.

Fifth, if a rental unit passes its 1st inspection then the unit will receive a 4 year compliance certificate and will not need to be reinspected until the 4 years expires.

NOTE: MUCH OF THIS INFORMATION IN THIS POST IS NO LONGER ACCURATE - TO FIND OUT WHAT THE ACTUAL ORDINANCE STATES GO TO MY NEW POST ON THE SUBJECT.

One Person's Attempt To Spread The Word About Milwaukee's Proposed Mandatory Rental Inspection Program (a.k.a "Landlord Licensing")

A fellow attorney friend of mine forwarded a pamphlet/flyer/handout that he saw on the east side of Milwaukee. The UWM area is where the city plan's to begin its mandatory interior inspections of rental units (a.k.a "Landlord Licensing") program assuming that the ordinance is passed by the common council. The handout should definitely make tenants living in that area give some thought to the city's latest attempt to infringe upon their rights. The handout raises some good issues that I did not address in my earlier posts on this topic on September 10, 2009 and September 14, 2009.

Why Milwaukee's Mandatory Rental Inspection Program (a.k.a. "Landlord Licensing") Is Not Needed and Is A Bad Idea.

Here are a few of the reasons why the City of Milwaukee's soon-to-be proposed ordinance requiring mandatory rental inspections (a.k.a. "Landlord Licensing") should not be passed.

For more background information on this proposed new ordinance please read my earlier post entitled " Milwaukee To Propose Landlord Licensing and Mandatory Interior Inspections of Rental Property."

There Are Better Ways To Spend Milwaukee’s Limited Money - The city of Milwaukee has no money and as such the city is threatening to close libraries, not hire additional police officers, not pay overtime to police officers, cut back on the number of firemen assigned to each ladder company. Under this new ordinance the city will spend money which would be better spent on more police officers and other safety issues rather than hiring more building inspectors.

Tenant’s Right to Privacy – Under this new ordinance rental properties would be subject to search by building inspectors. Tenants will have building inspectors walking through their apartments and looking at everything. This is unnecessary and intrusive. It should be the tenant’s decision to call the inspector if the landlord has failed to make a repair. Tenants’ right to privacy in their own home is a basic American right.

Increased Cost of Rent for Tenants – The current rental property owner already pays ever-increasing real estate taxes and municipal fees. Under this proposed ordinance rental property owners will have to pay a fee to the city for being a landlord – possibly having to pay a fee per each rental unit owned. Landlords will not be able to absorb that additional cost, especially when they are barely making ends meet in today’s tough economic times. As a result the additional charges for this program to landlords will most likely be passed on to tenant living in those rental properties.

Landlord Licensing Will Cause More Harm Than Good – A study conducted in 2003 by the LaFollette Institute for the City of Milwaukee, concluded that any form of landlord licensing would not work in Milwaukee. The study indicated that any benefits would be uncertain at best and at worst would have negative effects on the housing market and the availability of affordable housing. It said that any such program would be expensive and would cause more problems than it would solve. To read the entire study click here.

Denying An Owner The Right To Rent Out His/Her Property Is Too Great A Power To Give a Building Inspector – Under the new program the city will have the ability to deny a rental property owner a certificate of compliance if the property does not pass muster. Without the certificate of compliance the landlord will not be allowed to rent out his property. This is too great of a power to give a city bureaucrat. Even nuisance properties require that a lawsuit be filed and that a court order closure of that property before the owner is prevented from renting it out. Under this ordinance a building code inspector would be able to close down a rental property for infractions much less severe then those that are required to close down a nuisance property. A city building inspector could use this power for improper reasons to penalize a landlord who is out of favor with City Hall. In other cities and in Milwaukee there have been “rogue” inspectors who abuse their authority. To read about such examples click here. And here. And here.

The Foreclosure Crisis Is Putting Property Owners Under Stress – With falling rents and declining property values due to foreclosures – and the financial difficulties due to unemployment etc. – the rental housing market is severely stressed. This proposed licensing program will discourage further investment. It will hurt rental owners, tenants, and even neighborhood home owners as rental units become “board-ups.”

Rental Property Owners Are Already Over-Regulated – With all of the regulations imposed on rental property owners you need to be a lawyer in order to sort through them all and understand them. There are hundreds of laws and regulations imposed by the federal government (EPA, HUD) the state (Department of Commerce, Consumer Protections, Wisconsin Statutes etc,. and the various municipalities (Building Inspector, Health Department, Public Works). More regulations of rental property owners and their rental properties are nor necessary nor are they desirable.

Please refer to www.rentalinspectionprogram.com for more information on this topic.

Milwaukee's Chronic Nuisance Ordinance and It's Improper Use Against Landlords

The City of Milwaukee's Chronic Nuisance Ordinance (80-10) is a thorn in the side of many landlords. Essentially the ordinance says that if your property generates more than 3 calls for police service for "nuisance activities" within a 30 day period that the city will charge you for the costs associated with abating the alleged nuisance.

Nuisance activities include the following: harassment, disorderly conduct, battery, indecent exposure, prostitution, littering, theft, possession, manufacture or delivery of drugs, gambling, illegal possession of firearms, keeping a dangerous animal, trespass to land, conspiracy to commit a crime, discharge of a firearm, excessive noise, loitering, public drinking, sale of liquor, possession of counterfeit items, possession or selling of drug paraphenalia, selling or giving tobacco products to children, misuse of emergency telephone numbers, harboring an animal that causes a disturbance, illegal use or sale of fireworks, and truancy. In summary, a nuisance activity is pretty much anything and everything you can think of.

If your rental property is being used as a drug house or is the headquarters for a gang or if you are allowing tenant to run a house of prostitution out of your apartment complex then I agree that your property is more than likely occupying more than its fair share of the police department's time and resources and that the property may be a chronic nuisance. But this is not the only -- nor is it the typical -- situation in which this ordinance is being used against landlords.

Oftentimes landlords are having fines added to their property tax bill or being contacted by the police becasue a tenant called 911 to report a legitimate crime, or because a neighbor (who is mad that they live next to an apartment complex) called the police because s/he doesn't like it when the tenants stand and talk in front of the building, or my all-time favorite, a person (not a tenant or the owner) walked by the rental property and decided to drop their hamburger wrapper on the lawn. All of the above instances qualify as nuisance activities under Milwaukee's ordinance and can result in a property being declared a chronic nuisance.

I have heard from many landlords -- both in my capacity as an attorney representing landlords and as the president of the Apartment Association of Southeastern Wisconsin (AASEW) -- about circumstances in which they have been contacted by the police as a result of examples similar to those mentioned above. I recently received an email from a new AASEW member who was very upset at being in such a situation and contacted the AASEW for assistance and guidance. I have reproduced the member's email, with his permission, ommitting his name and the property address to protect his identity.

I own a 30 unit building at __________________. Last December there were 2 family arguments in which police were called, and a misdialed 911 call. According to the City's Nuisance Ordinance, 3 or more nuisance calls in any 30 day period from a property puts the owner on a list for "supervision" from the district's community liaison officer for a full 12 months. The owner must submit a plan for abatement for acceptance by MPD, fully execute the plan in a timely manner, check for nuisance incidents monthly at MPD Public Records office, and then submit a report and action plan for abatement for each incident.

My plan was approved and executed. I do have continuing nuisance incidents occurring though, but so far only one was a repeat from the same tenant. She had called the police to report that her son was receiving death threats. If my son where receiving death threats, I'd call the police too, but the community liaison officer told me that that was considered a nuisance, and strongly implied that if I didn't deal with it, the property would be designated as a Chronic Nuisance. So, against my better judgment, I filed an eviction. Of course, I was laughed out of court. As any landlord will tell you, a failed eviction action usually means the situation will deteriorate. This is not good business, but the fact is I'm being strong-armed by MPD to act.

I have taken absolutely EVERY action I was directed to take, or suggested I take, by MPD and more. I have responded to nuisance reports in as heavy-handed ways I can muster, with warnings, fines, and 5 Day Notices, to try and satisfy MPD. However, I feel like I'm being railroaded, and no matter what I do MPD will designate it as a Chronic Nuisance.

Please understand that, while my building is by no means the "Ritz", it is also by no means a slum either. Nor am I a slum landlord. This is a nice building in which we have invested heavily, increasing the value, as well as the tax collections for the City of Milwaukee. We turned this building around from a bad property in 2003, with crappy tenants who avoided calling the police like the plague, to a rehabbed property with much better tenants with higher expectations and no qualms about calling the police to demand service (which I pay for).

My understanding is that this ordinance was originally enacted to give the City some ammunition against irresponsible landlords. I fear that MPD is using the ordinance to coerce landlords to enforce the law in their stead. I have asked MPD on several occasions, both verbally and in writing, to provide me with information regarding any citations given to people who are involved in the nuisance activity, and I have gotten none. The ordinance extends to 911 abuse. Why landlords are put in a position where they are required by MPD to enforce 911 abuse is a mystery to me. Why not fine AT&T - it's their line! The whole thing boils down to MPD's inability to enforce the laws, and the abdication of their enforcement responsibilities in favor of coercing landlords to do their job for them, under threat of fines. The whole thing is, in a word, insane. Even if a landlord is successful in eviction someone, the problem just goes somewhere else anyway.

The final insult to me is the fact that MPD's definition of "property" may be a single family home, or a 30 unit building like mine. I get the same 3 call limit per month for 30 families as a single family in a regular house. I pay 30 times more taxes than the single family owner, but I receive 1/30th of the service quota. In my opinion this is an impossible and patently unfair standard.

There are single family homes and condos next to some of my buildings where the tenants are involved in gun play, drugs and prostitution. I have lost tenants due to these neighboring activities. Alas, these are not nuisance properties because there are less than 3 calls per month regarding each property. I have a few family disputes and misdialed 911 calls each month from my 30 family building, and I'm the nuisance.

I thought that this individual's email was extremely well-written and clearly pointed out several of the problems with how the City is applying the Chronic Nuisance property against landlords, such as:

1. Regardless of the size of the property (whether it be a single family home or a 100 unit apartment complex) after 3 "nuisance activities" your property can be declared a chronic nuisance.

2. Many of the so-called nuisance activities are not activities for which a Milwaukee County Court Commissioner or Judge will evict a tenant for participating in. As this person stated, the writer indicaterd, when he tried to evict the tenant he was "laughed out of court." I have been involved in eviction trials where at the close of evidence, rather then evicting the tenant that was selling drugs out of my client's property, the Judger told the tenant that he really didin't need to have 20 people coming and going from his apartment between the hours of 11 pm and 3 am most nights of the week and that he should stop that activity as it wasn't fair to his neighbors. The Judge then denied my clients request for a judgment of eviction but rather scheduled the case for a staus conference in 60 days to see if things improved. If landlords cannot even get obvious drug dealers evicted how are they going to be able to have a tenant that littered, called 911, or made an excessive noise evicted?

3. Some of the 911 calls are legitimate calls for which the police should be called and the owner of that property should not be put in the position of having to choose between receiving a fine and having his/her property declared to be a nuisance or telling his tenants not to call 911 for real emergencies.

4. Oftentimes the property that is attributed with the call is not where the actual "nuisance activity" occurred. I heard of an instance where a woman had gotten into a fight with her boyfriend at her home and then fled, she then stopped at a nearby apartment complex and asked one of the tenant's if she could use her phone to call the police. Seeing that the lady was upset, the tenant allowed her to make the call. The lady called 911. As a result of the tenant being a helpful neighbor to the victim, the tenant's landlord was contacted by the police becasue the telephone call was considered to be an improper use of an emergency number.

I think the police and the Department of Neighborhood Services (which often gets involved in these situations) need to use some "common sense" and distinguish true nuisance activity from other activity rather than classifying everything as a nuisance.

I also think that it would also be helpful for the police and DNS to spend some time in eviction court and observe just how difficult it is to evict a tenant for anything other than failure to pay rent. Maybe after sitting in room 400 of the Milwaukee County Courthouse for an afternoon they will realize that they are living in an alternate universe if they think that a landlord can obtain an eviction judgment against a tenant who litters, improperly calls 911, makes loud noises, or loiters.

I have met with the new Commissioner of DNS, Art Dahlberg, along with other members of the AASEW board, and Mr. Dahlberg was also kind enough to speak at one of the AASEW's membership meetings. In speaking with the Commissioner, he has commented that he agrees that some common sense used when determining if something a a nuisance activity. It is my hope that the addition of some common sense will occur ASAP so that landlords like the one that emailed me above, are not being placed in such an unfair position.

If Milwaukee's Chrnoic Nuisance ordinance has been unfairly applied to you and your rental properties I would appreciate you providing me with the details by adding a comment to this post.

PASSING OF WORTHLESS CHECKS WILL NOT BE PROSECTED IN CITY OF MILWAUKEE

Issuing a worthless check is a crime in Wisconsin. Accordingly, when a tenant pays his/her rent or security deposit with a worthless check I typically advise my landlord clients to do two things: (1) serve the tenant with the proper notice terminating tenancy for failure to pay rent so that an eviction action can be commenced against the tenant, and (2) report the crime to the local police so that a potential criminal action could be initiated against the tenant. Unfortunately, this second piece of advice is no longer valid -- at least for clients who own or manage rental property in the City of Milwaukee.

The Milwaukee Police Department have in place a written policy statement containing 20 exceptions to its normal prosecution of "worthless check" complaints, and one of those policy exceptions directly affects landlords and/or their agents: Policy Exception 17 states that "checks issued pursuant to any contractual agreement, including the payment of rent or security deposits for rental property," will not be pursued. The Milwaukee Police Department does not provide an explanation or rationale for this policy exception. And upon reading the entire list of policy exceptions, I am hard pressed to come up with any situation involving the issuance of a worthless check which wouldn't fall under one of the twenty exceptions. Apparently, the Milwaukee Police Department is not interested in pursuing individuals who pass worthless checks in general and, specifically, the MPD will not pursue tenants who pass them to their landlords.

This means that it is more important than ever that City of Milwaukee landlords and/or property managers do thorough and legal background checks on all prospective tenants in order to increase their odds of obtaining trustworthy and responsible tenants. Secondly, landlords may want to consider adding language to their standard rental agreements stating that any and all rental payments and security deposit payments must be made via certified funds (i.e., certified check/cashier's check or money order). Third, City of Milwaukee landlords now have another reason not to allow tenants who have fallen behind with their rent payments to continue to reside in the their properties.

In order to protect yourself and your properties, landlords or their managers should consider commencing an eviction against a tenant as soon as the tenant is late in paying even one month's rent. If landlords continue to allow tenants to get further behind in rent payments and continue to accept promises of future payments from such tenants, landlords will increase the chances that the promised past due rent payments will be made via worthless checks -- and now landlords will receive absolutely no assistance from the Milwaukee Police Department when trying to recover these funds from their tenants.