Fair Housing Update: Review of 2010 Fair Housing Trends Report

A large segment of my work involves advising landlords and property managers about fair housing laws and counseling them what they can and cannot do in the rental industry with regard to the federal and state fair housing laws and discrimination in general. As such, I recently took the time to read the National Fair Housing Alliance's (NFHA) 2010 Fair Housing Trends Report which was published May 26, 2010.

To provide you with some background on the protected classes and fair housing law in general you may wish to review my July 10th post which discusses the various protected classes or visit Atty. Ron Leshnower's Fair Housing Blog.

Some of the relevant highlights of the report are below.

- In 2009 there were a total of 30,213 fair housing complaints filed. This is a significantly higher number of complaint than in past years. It should be noted that all of these complaints do not arise in the context of rental housing -- many involve mortgage lending, hosing construction etc.

- NFHA conservatively estimates that there are over 4 million fair housing violations each year although most of them are never reported.

- In 2009 H.U.D. (U.S. Dep't of Housing and Urban Development) and D.O.J. (Department of Justice) charged more fair housing cases than in past years.

- Private fair housing groups continue to process the highest number of complaints -- 19,924 (or 66%) of the total complaint load even though there are fewer private fair housing groups than in prior years.

- Since 1999, private non-profit fair housing organizations have processed 186,308 (66%) of the complaints. By comparison, Fair Housing Assistance Program (FHAP) agencies processed 69,358 complaints (25%), and HUD processed 25,881 (9%) of the cases.

- People with disabilities continued to be the protected class that is most discriminated against (or at least the most reported) in 2009. This was also true in 2008. The report explains that disability complaints remain high for several reasons: (1) HUD has an office devoted solely to disability issues, (2) many apartment owners make direct comments refusing to make reasonable accomodations or modifications for people with disabilities so the discrimination is easier to detect, (3) builders, developers, and architects still continue to design and construct apartment complexes that violate the Accesibility Guidelines, (4) every state has a Protection and Advocacy System and every city has one or more non-profit agencies dedicated to assisting people with cognitive, mental, sensory, and physical disabilities.

ASIDE: In a recent article from Milwaukee Magazine's newsbuzz, disability related discrimination leads the way in Milwaukee also.

- In 2009, private fair housing groups reported 15, 624 complaints of housing discrimination in the rental market. FHAP agencies reported 6,464 and HUD reported 1,656. The report goes on to explain that one reason for the increase in the number of rental market complaints from prior years may be the foreclosure crises -- i.e. many tenants were evicted when the owner defaulted on his/her mortgage and many others lost their homes and needed to enter the rental market where they faced discrimination.

- In 2009, several representatives in Washington introduced bills to extend the protection of the Fair Housing Act to create 2 additional federally protected classes: (1) gender identity, and (2) sexual orientation.

Obviously, more work needs to be done to ensure that landlords are aware of the protected classes and do not engage in discrimination, but as the title of the report says - 2009 was a "step in the right direction."

ASIDE: There is a portion of the report that addresses fair housing implications of the foreclosure crisis that is very interesting and worth a read.

Audits In Milwaukee by HUD Regarding Compliance with Lead-Based Paint Disclosure Laws

A fellow board member on the Apartment Association of SE Wisconsin forwarded the email below to me and other landlord-tenant attorneys and others in the industry. It concerns the recent audits of landlords and management companies in the city of Miwlaukee with regard to complying with the federal lead-based paint disclosure laws. I spoke with a potential client yesterday who was also being audited and had failed to give out the required disclosure forms and pamphlet. The feds seem to have turned up the heat on this issue. Please read the email below and also view my blog post on this topic at http://petriepettit.com/blog/landlord-tenant/lead-based-paint-disclosure-form-you-must-use-this-document Subject: Lead based paint warnings Ladies and gents Our benevolent government is comprised of multitudes of faceless bureaucrats with nothing to do so they dredge up projects to justify their cushy jobs, benefits and pensions. The latest of these to affect our real estate residential industry is that the Dept of Housing and Urban Development (HUD) is auditing landlords to be SURE that they give the required Lead warnings to each incoming tenant. Thie would include the pamphlets and forms you received from us and are instructed to use. As our buildings were constructed before 1978 (when lead paint was officially banned - even tho nobody used it for years previous), ALL tenants MUST sign the form and get the pamphlet. For EACH failure to provide the form and pamphlet, the fine can reach $11,000. You can see this could add up to real money real fast. I urge you to check your files and be SURE the lead form is there for each tenant. Those of you who send your leases to the office usually do not send the Lead form which is usually not necessary for tenant management, but it is vital that the forms are available for one of these audits. Today the audits are in the City of Milwaukee. A friend of mine was just audited and the HUD guy was there 3 hours and made many copies of stuff. My friend has about 300 units in Milwaukee. They could audit anywhere next. We will be checking with each of you in the near future to check on this. This is serious. Do not fail. Please take heed of this and make sure you are in compliance -- the penalties are huge and can easily put a landlord out of business.

EXECUTION OF WRIT: Part 2 - The Details

Last week I provided some basic information about what is involved in the execution of a writ of restitution (eviction) and how the process works. With this week's post I wanted to provide everyone with some additional -- more detailed -- information about the execution process. I attempted to group these tidbits of info by category. Much of the information below is specific to Milwaukee County and the Milwaukee County eviction squad.

General

- The applicable Wisconsin Statute regarding executing a writ is 799.45, Wis. Stats.

- Milwaukee County Eviction Squad's phone number is (414) 278-5030.

- A typical eviction move-out takes 1 hour.

- Approximately 15-20 evictions are performed per day.

- There is both a 1st and a 2nd shift that performs evictions. The 1st shift arrives at the office around 7 am. The 2nd shift works until 8 pm.

- The landlord should alert the Sheriff if any of the following apply: (1) the tenant has mental health issues, (2) there are dangerous dogs residing in the unit, (3) the tenants are believed to be involved with drug dealing, (4) there are guns on the property, (5) the tenant is elderly and/or disabled and has no place to move to or family to assist him/her.

The reason that the Sheriff wants to be notified of (1) - (4) is for the Sheriff's own safety. If there is a mentally unstable tenant, dogs, drugs, guns, or some other factor that might result in the increased risk of injury, the Sheriff wants to be notified of this in advance so that they can have back-up near by. The execution of a writ can be very dangerous. Tenants who are being displaced from their homes are often emotional (understandably so). I have heard of Sheriff's deputies being injured and even killed while performing an eviction. If a landlord has any inkling that there could be issues during the eviction this should be communicated to the Sheriff's Department.

The reason that the Sheriff wants to be notified of (5) (if the tenant is elderly and/or disabled and has no family to assist or place to move to) is because the Sheriff will then contact the Department of Aging or a social service agency prior to the eviction so that someone can be on hand to assist the elderly and/or disabled person in locating a safe place.

The best way to notify the Sheriff of any of the above conditions is to attach a note to the paperwork that you are filing with the Sheriff. This way the clerk can pass that note along to the eviction squad along with the Writ.

- After the tenant's property has been removed, the tenant and any other individuals living in the unit will be escorted out of the unit. The Sheriff will put a placard on the door. If the tenant returns and enters the unit after the eviction has occurred the police should be called. The Sheriff cannot make a tenant leave the apartment complex or neighborhood as the Sheriff only has the authority to remove the tenant from the unit.

Eviction Route

- The eviction squad performs all evictions on the south side of Milwaukee first and then they move to the north side.

Notification To Landlord

- The Sheriff will do its best to notify the landlord of the date and time for the eviction on three different occassions: (1) the night before the eviction is scheduled, (2) at 7:30 a.m. the morning of the scheduled eviction, and (3) as they are driving to the property to perform the eviction.

Moving Companies

- Certain moving companies are used only on certain days of the week in Milwaukee County. So a landlord does have some control over what day of the week his/her eviction will occur by choosing who to hire as the moving company. If Eagle Movers has been retained then the Sheriff will schedule the eviction for Monday, Wednesday, or Friday. If Aetna Movers are hired then the eviction will occur on a Tuesday. If Dweyer Movers (owned by Eagle Movers) are used then the eviction will be on a Thursday. Wednesdays are reserved for JC Triplett.

Appliances

- If the landlord provides appliances with his/her rental unit then the landlord should notify the Sheriff of this. The landlord should also provide the Sheriff with information about the type of appliances, manufacturer, color etc. If the Sheriff is not advised of this information and the tenant tells the moving company that the appliances are his/hers, there is little the Sheriff can do to prevent this type of theft.

Storage Lockers

- If the tenant has property stored in a storage locker which needs to be removed, the Sheriff needs to be told of this. If the landlord does not know which storage locker is the tenant's, the Sheriff will not remove any items from any of the lockers as they could be held responsible if they remove items from the wrong storage locker.

Tenant's Personal Property

- The Sheriff has the authority to decide what of the tenant's belongings are of no value (junk) and what is valuable and should be packed and moved to storage.

- Neither the Sheriff nor the moving company will remove a tenant's clothing. This rule is in place for safety reasons because in the past the Sheriff/movers were stuck by needles that were left in clothing.

- Only large items will be removed. Smaller items will be left in the unit for the landlord to remove.

- If the tenant's property is infested with roaches, bed bugs, or some other critter, the items will NOT be moved. Moldy items will also not be placed into the moving truck. The moving companies do not want to help spread these infestations throughout the city so the removal of such property will be left to the landlord.

- Once the Sheriff determines what is junk/garbage, the landlord then has a choice to either leave the junk in the property (which the landlord can then remove later) or have the moving company haul everything to the curve (which the moving company will charge the landlord for doing).

- If a tenant is present, and his/her property is determiend to be of value, the tenant is given a choice as to what should be done with his/her belongings. The property can be moved and placed into storage (which the tenant will then be required to pay for if s/he wants the possessions back) or the tenant can opt to have his/her property placed at the curb (for the tenant to remove).

- If a tenant's personal property is going to be placed into storage, the moving company must put the property into boxes, which the landlord will pay for. While it is frustrating for the landlord to have to pay for boxes to house the tenant's property, the moving company cannot just throw the tenant's belongings haphazardly into the back of the truck for many reasons (safety and liability are two that come to mind). The property will also be inventoried.

Liability for Execution of Void Writ

- The Sheriff will be liable to the tenant for any damages resulting from the execution of a writ that was given to the Sheriff beyond the 30 day period. The Sheriff will also be liable for any resulting damages if the Sheriff executes a writ beyond the 10 day period. Wolfe-Lille v. Kenosha County Sheriff, 699 F. 2d 864 (7th Cir. 1983).

Cancellation of Writ

- Landlord must have the docket number that was giving at the time that the paperwork was filed with the Sheriff, in order to cancel an eviction. Only the Sheriff and the landlord are given the docket number. The tenant should NEVER be given the docket number or else s/he could cancel their own eviction.

- If a landlord cancels an eviction, the Sheriff discards the paperwork. As a result, a landlord cannot "un-cancel" an execution of the writ. A landlord should never cancel the eviction with the Sheriff unless they are certain that the tenant has vacated.

Costs of Execution

- The Sheriff charges $112.50 per hour for their time in executing a writ.

- The total cost to execute the writ will be based on the actual hours expended by the Sheriff. The costs will be taken out of the $130 deposit that was previously posted. Any remaining monies will be returned to the landlord within 4-8 weeks. If the total cost exceeds the $130 deposit, the Sheriff will send a bill for the overage.

- The cost of the Sheriff and the moving company are all chargeable to the landlord. However these costs will be taxed and added to any money judgment that the landlord pursues against the tenant -- whether or not the judgment is collectible, is a whole different issue.

- The only costs that are the truly the responsibility of the tenant (aside from if the landlord obtains a judgment against the tenant and actually collects on it) are the costs incurred for the storage of the tenant's belongings after the delivery of the property to the storage facility.

EXECUTION OF WRIT: Part 1 - The Basics

I have noticed a trend in the last several months of more and more tenants refusing to leave a landlord's rental property even after the landlord has obtained a judgment of eviction against the tenant and been issued a Writ of Restitution ("writ"). As a result of this trend more and more landlords are being forced to go through the process of having the writ executed. The execution of the writ is the process whereby the Sheriff actually removes the non-vacating tenant and returns possession of the property to the landlord.

Background Information:

Most eviction lawsuits have 3 causes of action or claims. The first cause of action is for return of the rental property. This is often referred to as the "eviction" portion and in Milwaukee County it is called the "1st cause of action." The 2nd and 3rd causes of action have to do with the money that the tenant might owe the landlord. The 2nd cause refers to the past due rent that may be owed and the 3rd cause refers to any claims for physical damages to the unit and/or holdover damages. Together the 2nd and 3rd causes of action are often referred to as the "money claims."

This post will focus on the 1st cause of action generally, and specifically, on what a landlord must do s/he has been granted a judgment of eviction and received a writ of restitution but the tenant continues to reside in the unit.

A landlord typically obtains a judgment of eviction (and the ensuing writ) in one of three ways. First, the tenant fails to show for court and the landlord is granted a default judgment. Second, the tenant appears in court and contests the eviction thus necessitating an eviction trial before a judge. Assuming the landlord proves his/her case, the landlord obtains a judgment of eviction and is issued a writ. Third, the tenant appears in court and admits that they are in breach of the lease and the court commissioner or judge grants a judgment of eviction against the tenant based on his/her admission and issues a writ.

Many landlords mistakenly believe that after they obtain a judgment of eviction and a writ that they can then change the locks and toss out the tenants personal property if the tenant fails to leave. DO NOT DO THIS. If the tenant fails to vacate the unit, even after there has been a judgment and a writ issued, the only legal way to remove the tenant is to hire the Sheriff and to have the writ executed (sec. 799.45, Wis. Stats.) If a landlord attempts to illegally evict a tenant (also referred to as a "self-help" eviction) th elandlord is openeing himself/herself up to either civil or criminal liability, or both. The tenant can sue the landlord that engaged in a self-help eviction for double damages and attorney fees. While it may seem "unfair" to require the landlord to expend more time and money after s/he has already obtained a judgment of eviction against a non paying tenant, that is what the law requires.

The Writ of Restitution:

Along with obtaining a judgement of eviction comes the issuance of a Writ of Restitution (writ). A writ is a document that orders the Sheriff to evict the tenant and anyone else that has occupancy of the rental unit. The writ also contains additional information that will assist the Sheriff in executing the writ, such as the name and address and phone number of the landlord, the landlord's attorney, and the defendant/tenant.

In Milwaukee County the court does not give you a writ. Instead the court gives you an Authorization for Writ. The landlord must then take that Authorization to the Clerk of Courts and pay $5 in order to obtain the actual writ. The landlord must then complete the writ and tender it to the Sheriff.

Each county handles the distribution of the writ differently. In Waukesha County (at least last time I was there) a landlord is required to return to court the following day to obtain the writ and pay the fee. The Clerk completes the writ for you in Waukesha. In Racine County, a landlord should pick up a blank writ from the Clerk of Courts before court, complete all the requested information on the writ, and then present it to the judge when the case is called and the judge will sign the writ. No fee is required in Racine County. In Kenosha County, a landlord must go to the Clerk of Courts after court and pay $5 and the Clerk will then complete the writ for you and hand it to you. It is advisable to talk to the Clerk of Courts in whatever county you own rental property about the process of obtaining the writ before you appear in court.

A writ is only valid for 30 days. If a landlord does not tender the writ to the Sheriff within the 30 day period the writ will expire and the landlord will need to start the entire eviction process over again in order to remove a tenant that is still residing in the property. Yep, you heard me correctly. If the landlord lets the writ expire, the landlord will need to serve the tenant with a new notice, purchase a new summons and have it filed and served on the tenant, appear in court again etc. etc. Do not let the writ expire! New landlords (or landlords with no previous eviction experience) should not let a tenant dupe them into not filing the writ with the Sheriff within the 30 day period. Tenants may tell you that they just need 10 more days, and then another 5 days, and then 3 more days and they will be out, etc. etc. If all those extra days add up to 30 - the landlord has only himself/herself to blame.

Executing The Writ:

In Milwaukee County, only the Sheriff can legally execute the writ. Before the Sheriff will do this however the landlord must hire a moving company. The landlord must obtain a Letter of Authority from a licensed and bonded moving company and in return the landlord will have to shell out a refundable deposit of approximately $350 to the movers.

Once the landlord has engaged the services of a moving company the landlord should go to the Sheriff's Department for Milwaukee County and bring along the following items:

1. The Authorization for Writ

2. The fully completed Writ of Restitution

3. $130 deposit to give to the Sheriff

4. A set of keys to the unit to give to the Sheriff.

By law, once the writ has been delivered to the Sheriff, the Sheriff must execute the writ within the next 10 days (sec. 799.45(5), Wis. Stats.) Due to the large amount of evictions in Milwaukee, it typically takes the Sheriff the full 10 days. Oftentimes the Milwaukee County Sheriff will mail the tenant a 24 hour notice the day before the planned eviction to give them one last chance to leave on his/her own. This notice is not legally required and so it is irrelevant if the Sheriff does not do it for every eviction. Think of it as a courtesy.

If the tenant still has personal property in the rental unit when the Sheriff arrives to execute the writ ,the Sheriff will then determine what of the tenant's personal property should be stored by the moving company and what property is considered to have no value and can be disposed of. After the tenant's personal property has been dealt with, and if the tenant is still residing in the property, the Sheriff will direct the tenant -- and any others residing in the unit -- out of the unit and insure that the unit is secure. If the tenant refuses to leave the unit, s/he will be arrested for Disorderly Conduct. It should be noted that the Sheriff can make the tenant leave the specific rental unit but cannot make the tenant leave the apartment building or complex. If the tenant refuses to leave the building then the landlord must call the police.

It is helpful if the landlord or his agent can be present during the eviction to answer any questions that the Sheriff or moving company may have. I have heard of one instance where a tenant told the Sheriff that the refirgerator and stove in the unit were purchased by the tenant and were his. This was not the truth. The landlord was not present during the eviction however to refute the tenant (or to produce the rental agreement to the Sheriff which would have shown that the landord supplied a refrigerator and stove along with the rental) and the appliances were taken off to storage. The landlord had a difficult time retrieving his property and had to pay a storage fee to get the appliances back.

In smaller counties -- those with a population of less than 500,000 -- a landlord is allowed to remove, store, and dispose of a tenant's property himself/herself and the only role that the Sheriff performs is to supervise the landlord. I have not had any experience with this type of eviction, so I can not provide yu with any more information other than this option is legally available to landlords who own rental property outside of Milwaukee County.

Next week I will blog on some of the smaller details involved with executing a writ that will assist you in the process.

FREE Seminar on Evictions - Saturday, August 14th

I will be presenting a free seminar on the topic of evictions for the City of Milwaukee's Landlord Training Program on Saturday, August 14th. I am presenting this seminar on behalf of the Apartment Association of Southeastern Wisconsin (AASEW).

The Seminar will run from 9 am - 12 noon and will be held at Alverno College's Wehr Theater which is located at 3441 S. 39th Street. I was informed that there is a parking lot located at 40th & Morgan for attendees to use.

I will cover three topics:

1. Causes for Evictions - I will explain the different types of notices that can be served on a tenant and explain under what circumstances you should use the different notices)

2. Notices Terminating Tenancy - I will explain what must be included in a proper notice and how to properly serve a notice), and

3. The Judicial Eviction Process - I will cover the "nuts and bolts" of what you must do to file an eviction lawsuit and what to expect once you arrive in court).

The attendees will receive copies of my detailed outlines on the above topics plus examples of various forms.

If you are interested in attending the seminar you must register in advance by calling (414) 286-2954 or email jhagne@milwaukee.gov.

Hope to see you there!

With All of This Flood Damage Lately . . . Let's Talk About Untenantability

With all of the flood damage from the July 22, 2010 storms throughout SE Wisconsin, I have been receiving lots of questions asking what will cause a rental unit to become "untenantable" and if that happens what are a landlord's duties and a tenant's rights.

"Untenantable" basically means that a property is not fit for an occupant, is not in proper repair, and/or is not liveable. A rental property can become untenantable as a result of many things. A property could become untenantable as a result of a tenant's negligence, failure by the landlord to keep up the property, or an act of God.

A tenant could be negligent and leave a candle burning which causes a fire and results in substantial smoke and fire damage leaving the property untenantable. A landlord could fail to perform the necessary upkeep to his/her rental property and over time this could result in plumbing or electrical problems thus rendering a unit untenantable. Through neither the fault of the landlord nor the tenant, a major storm could pass through causing the basement to be flooded by a combination of storm and sewer water --- sound familiar??? --- and this could result in a rental become untenantable in certain sitautions, if neglected.

Sec. 704.07, Wis. Stats., addresses the topic of untenantability. The statute states that it is a landlord's duty to:

1. Keep in a reasonable state of repair portions of the premises over which the landlord maintains control, and

2. Keep in a reasonable state of repair all equipment under the landlord's control necessary to supply services that the landlord has expressly or impliedly agreed to furnish to the tenant, such as heat, water, elevator or air conditioning, and

3. Make all necessary structural repairs, and

4. Repair or replace any plumbing, electrical wiring, machinery, or equipment furnished with the premises and which is no longer in reasonable working condition, and

5. Comply with any applicable local housing codes.

The same statute also sets forth the duties of a tenant:

1. If the premises are damaged by the negligence or improper use of the premises by the tenant, the tenant must repair the damage and restore the appearance of the premises, or a landlord may elect to undertake the repair themself and in such cases the tenant must reimburse the landlord for the reasonable cost of the repairs

A QUICK ASIDE: My personal view is that even if the tenant causes the damage, it is the landlord that should make the repairs. It is the landlord's property and I would not be comfortable allowing a tenant to make repairs to my property. I want to be the person to choose the contractor, ensure that the contractor is insured and bonded and is complying with the new EPA lead renovation rules, and decide what materials the contractor uses. If a landlord passes that responsibility onto a tenant, there are a million things that could go wrong. The tenant could elect to perform the repairs himself/herself and not have a clue what they are doing which could result in more damage, additional costs, and possible injury. The tenant could opt to hiring the contractor who quotes the cheapest price and who uses inferior products that won't last. The tenant could hire a contractor that is not bonded and insured who could then injur himself/herself and then attempt to sue me, the landlord. I could go on and on with the potential pitfalls in allowing a tenant to make repairs to your rental property, but I won't. Suffice it to say that it is your rental property, and it is your investment and as such you should be in control of it and make the key decisions.

As you can see, both the landlord and the tenant may have duties when it comes to making sure that a rental property remains tenantable. But if you follow my advice, and do not allow your tenant to make any repairs (even if s/he caused the damage), then the onus to keep a unit tenantable primarily falls on the landlord.

Sec. 704.07 also addresses the sitaution where a landlord fails to make the necessary repairs and return the unit to a liveable condition. Sec. 704.07(4), states that if the premises become untenantable because of damage by fire, water, or other casualty or because of any condition hazardous to health, or if there is substantial violation that affects the health or safety of the tenant, then:

1. The tenant has the right to vacate the premises, unless the landlord proceeds to promptly repair or rebuild or eliminate the health hazard,

or

2. The tenant may vacate the premises if the nature and time of the repair, rebuilding, or elimination of the hazard, would impose an undue hardship on the tenant, if s/he stayed in the unit.

If the tenant justifiably moves out of the unit for one of the above reasons then the tenant will not be held responsible for rent after the point when the premises become untenatable. Additionally if a unit becomes untenatable, and the landlord does not make the needed repairs, the landlord must return any prepaid rent for the period of time after which the unit is untenantable.

It is very important to note however that the tenant's ability to vacate the unit and be absolved of paying rent DOES NOT APPLY if the tenant's negligence or improper use of the property caused the damage or unsafe condition.

If the unit is damaged, but it is not untenantable such that a tenant can remain in the unit, sec. 704,07 allows a tenant to abate the rent (i.e withhold a portion of the rent) to the extent that the tenant is deprived of the full normal use of the premises. A tenant cannot abate rent 100% and remain living in the unit. If the unit is in such bad shape that a tenant feels no rent is owed then the unit is untenantable and the tenant should vacate. A tenant should be very careful before choosing to abate rent. If proper abatement procedures are not followed a tenant can find themselves on the wrong end of an eviction.

Whether or not a unit is untenantable is very fact-intensive. Different facts will give rise to different outcomes. Different judges and different court commissioners can come to different conclusions based on the very same facts.

Let me give you some real life examples to demonstrate just how subjective a determination of untenantability can be.

What if, as a result of the recent storms, the basement of your rental property is flooded by storm/sewer water (as occurred with my rental property this past week), does this make the unit untenantable? I don't think it does because we are only talking about the basement and not the living quarters. But if, I failed to remove the standing water, clean, and dry the basement -- thus preventing my tenant from using the washer and dryer for a length of time -- an argument could be made that my tenant should be able to abate rent to some extent. But if the same flood caused storm/sewer water to crest the first floor where my tenant lives and resulted in water damage to the hardwoord floors, my tenant's personal property, etc etc., then I believe a better argument could be made that the unit is untenantable.

What if the tenant has no hot water becasue the pilot light on the hot water heater was snuffed out during the flooding (which once again happened to my tenants this past week), does this make the unit untenantable? Probably not. But if I ignore my tenants' calls and fail to relight the pilot light on the water heater for the tenant, the tenant is being deprived of something that I was to provide under the rental agreement -- the hot water, and an argument for abatement of rent could be made.

What if a a tree that was struck by lighting crashed through the living room of my rental property and there was a gaping hole in the roof and little birds were nesting in my tenant's couch (thank God this has never happened to me) untenantable now? Yes, a reasonable argument could be made that the premises are uninhabitable now. Same goes for when there is a substantial fire resulting in smoke damage and structural concerns. What about an infestation of bed bugs?

There are no clear answers. Certain facts may tilt the scale in one direction or the other. There is no black line rule as to when a unit is tenantable and when a unit is untentable. Using some common sense and the guidance of Sec. 704.07, Wis. Stats. hopefully you will be able to evaluate any future situations that come your way. And if you haven't cleaned up the damage to your rental properties from last week's floods . . . what are you waiting for, DNS to show up?

What Is This Mitigation of Damages Requirement That I Keep Hearing About?

Whether a tenant breaches his or her lease and is evicted, leaves after receiving the 5 day or 14 day notice, or skips out in the middle of the night with months remaining on the lease, a landlord has the responsibility to make reasonable efforts to mitigate the tenant's damage under Wisconsin law.

Put quite simply - a landlord cannot just sit back and do nothing and expect to collect rent from the departed tenant until the lease term ends. Per Sec. 704.29 of the Wisconsin Statutes, a landlord must make reasonable efforts to attempt to mitigate the tenant's damages by trying to re-rent the unit for the tenant.

"Reasonable efforts" are defined as "those steps that the landlord would have taken to rent the premises if they had been vacated in due course . . ." So if you typically advertise your vacancies in the Journal Sentinel then you should advertise the tenant's vacant unit in the Journal-Sentinel also. If you typically advertise vacancies on Craig's List, then you should do the same for the tenant's vacant's unit. If you always post a "For Rent" sign in the front of the apartment building, then you should do the same here as well.

The tenant is legally responsible for any costs incurred by the landlord to re-rent their now vacant unit. Whether the old tenant is collectible and you will ever be reimbursed for those out of pocket costs is a practical matter that the statutes do not address.

If you have other vacant units at the same property, you do not need to re-rent the tenant's old unit before you rent out the other vacant units. But you should add your ex-tenant's vacant unit into the mix and show it along with your other vacancies to any prospective renters.

The Wisconsin Statutes do not provide us with a definition of "reasonable efforts." What is reasonable is determined on a case by case basis and varies depending on the specific facts and the judge or court commisioner that is hearing the case. A landlord should use common sense. If you follow the same procedures as you always do when you have vacancies, you should be OK.

I hope it goes without saying that the following would NOT be considered to be reasonable efforts to mitigate a tenant's damages:

1. The arbitrary refusal to re-rent the unit to a prospective tenant.

2. An attempt to rent the unit at a higher rental amount then other similar units in an attempt to dissuade a prospective renter from choosing the tenant's vacant unit.

An issue that often arises in these mitigation cases is what if the landlord cannot not begin re-renting the unit because the tenant caused extensive damage and the landlord needs time to return the unit to a rentable condition. In my experience, I have found the courts to be understanding if a landlord is placed into a catch-22 situation like this. I have argued successfully in court on many occasions that if the tenant caused damage to the unit which requires the landlord to need more time to repair the unit -- thus delaying his/her ability to attempt to re-rent the unit -- that this should not be held against the landlord as long as the landlord moves forward with the repairs in a reasonable amount of time.

The argument is a simple one . . . "your Honor, but for the tenant having caused damage to the unit, my client would have been able to begin the re-rental process immediately. It was the fact that the tenant decided to paint the master bedroom a beautiful shade of purple, allowed their cat to use the hallway carpet as a personal litter box, and encouraged their 2 year old child to express her artistic abilities with a permanant marker on the newly refinished hardwood floors, that delayed my client's ability to re-rent the unit the following month."

According to sec. 704.29(3), Wis. Stats., a landlord must allege and prove that s/he made efforts to re-rent the unit for the tenant. The tenant then has the burden of proving that the efforts that the landlord took were not reasonable. The burden then shifts to the tenant to prove that the efforts taken by the landlord were not reasonable. The tenant also has the burden to demonstrate the amount of money that could have been obtained as rent had the landlord made reasonable efforts to mitigate by re-renting.

The issue as to whether or not the landlord used "reasonable efforts" to re-rent the unit is frequently raised by residential tenants that appear in court to fight any money damages claims sought by the landlord. The mitigation issue is ALWAYS raised by commercial tenants because commercial lease terms are typically for many years which could result in the tenant being "on the hook" for tens of thousands of dollars.

So if you are ever in the unfortunate situation where a tenant has vacated your rental unit with months remaining on the lease, you will want to make sure and save any documents that will demonstrate that you made reasonable efforts to re-rent the tenant's unit. This often includes, photos of the "For Rent" sign indicating the date it was put up, copies of advertisements placed on Craig's List or in the Journal Sentinel, invoices for the cost of the ads, a list of the potential renters who called interested in renting the unit, the reasons why any potential tenant was rejected (this is another time when having written screening criteria is a must), and any other evidence that shows that your efforts to mitigate your ex-tenant's damages were reasonable.

Once the unit is re-rented, the tenant's responsibility for rent is over. So typically the tenant will remain responsible for rent until either the end of the lease term or until you are able to re-rent the unit, whichever comes first.

While it may seem unfair that you have to expend extra time and energy to help reduce a tenant's damages when s/he was the one in the worng -- it is the law.

Don't Miss Next AASEW Town Hall Meeting on Monday, July 19th

Have a question about landlord tenant law? Property management? Real estate investing/short sales? Then come to the AASEW General Membership meeting on Monday, July 19th, 7:00 p.m. at the Best Western Hotel, 1005 South Moorland Road in Brookfield.

Attorney and AASEW President, Tristan Pettit, AASEW Director and Portfolio Director at StuartCo, Susan Ipsarides, and owner of Plan B Homebuyers & Tailwind Funding, Brian Meidam, will all be on hand to answer your questions and give you tips to help you manage your rental property business.

Wisconsin Supreme Court Rules Against Landlord in Maryland Arms Case and Chooses To Avoid Answering The Bigger Question

The Wisconsin Supreme Court filed its opinion in this very important case on July 7, 2010. While the majority opinion ruled against the landlord it did not go so far as to say that a landlord and tenant could not allocate liability for damage (when neither party was negligent in causing the damage) in their rental agreement.

If you would like to review the specific facts of the case and the arguments made by both sides please revisit my posts of May 29, 2009 and October 15, 2009.

The Court was split, so there is a majority opinion, a concurring opinion, and a dissenting opinion. So if you are brave enough you can read all three opinions which encompass 37 pages and can be read here. The Wisconsin Law Journal provides a very good summary of the decision if you are not feeling ambitious enough to read all 37 pages.

As an attorney who primarily represents landlords, I must admit that I had a mix of emotions after I finished reading the opinion. I was upset that the majority opinion held that the landlord should be responsible for damage to his rental property that was caused by the tenant leaving her hair dryer plugged in overnight. I was also frustrated by the fact that the major issue in the case -- whether or not a landlord and tenant can allocate liability through the language of the rental agreement -- was not addressed by the majority opinion, thus providing little guidance to landlords in the future. On the other hand I was also grateful that the majority decided to "pass the buck" and not address this issue becasue, quite frankly, if the majority had addressed that issue, I believe they would have said "no" a landlord cannot allocate liability on a tenant for damage that was not casued by the negligence of the tenant.

The majority opinion held that the landlord should be held responsible for the damage because the rental agreement (which was drafted by the landlord) was ambiguous when it came to who would be held liable for damage in a situation where neither the tenant not the landlord were negligent in causing the damage. The majority rested its decision on a very well established principle of contract law that any ambiguity in a contract should be construed against the drafter of the contract. The majority said that since the contract terms did not unambiguously state that the tenant would be liable for the damage under the specific fact situation in this case, then the landlord should be liable for the damage.

The majority declined to address the very important issue that the AASEW and other landlord associations were concerned about in this case -- whether a landlord can add a lease provision assigning liability to a tenant for damages (when the damages is not caused by the tenant's negligence) or whether doing so would be a violation of Wis. Stat. sec. 704.07. So essentially the "Supremes" chose to dodge the issue, which in effect means that nothing prevetns a landlord from allocating liability to a tenant for such damage in a rental agreement under similar facts. What this also means is that should a landlord make such an allocation and hold a tenant responsible for similar damage, the tenant can argue that such contract language violates sec. 704.07, and the courts will have no guidance as to how to rule.

It was a missed opportunity by the Supremes to add to Wisconsin Landlord-Tenant law. However, based, on the tortured analysis (my view) of the majority opinion, if the court had addressed the allocation of liability issue it would have most likely resulted in a holding that would not allow a landlord and tenant to allocate liability -- which would have been even worse. So in the end maybe it was best that the issue was not addressed.

Justice Ziegler, who agreed with the majority opinion, wrote a concurring opinion to add that her view of Wisconsin law is that a landlord and tenant are not prohibited from allocating liability by contract as long as it is done clearly (i.e. no ambiguity) and is otherwise enforceable by law.

The dissenting opinion, which begins on page 18 and is authored by Justice Prosser, stated that not only are a landlord and tenant allowed to allocate liability in a rental agreement but that that is exactly what the parties to this lawsuit did and that the majority opinion is ignoring the clear meanign of the language in the rental agreement. The dissent did not find the lease to be ambiguous at all. The dissent, quite correctly in my opinion, points out the absurd nature of the majority opinion by saying that "imposing responsibility on the landlord for damage caused by a tenant, when the landlord cannot control risks created by the tenant" (like keeping a hair dryer plugged in overnight) defies economic logic.

The dissent, being very pragmatic, actually takes the time to address what the practical effect the majority decision will have on landlords by stating, "When the landlord is made responsible for abnormal damages that is actually caused by tenants, the landlord must spread the resulting expense among all tenants by charging higher rent. When a tenant is made liable for damage that is caused by that tenant, the landlord is better able to control rent and the tenant has an economic incentive for prudent stewardship of the premises."

Which of the three opinions seem more reasonable and logical to you?

BED BUGS: Everything That You Wanted To Know . . . and More

If you have not heard -- bed bugs are making a comeback. Bed bugs are wreaking havoc on hotels, apartment complexes, and anywhere else where people congregate. I have even been told that 75% of all of the hotels in Las Vegas are infested with bed bugs - I don't know if that is true or not - but with the influx of people entering and exiting that city daily, it would not surprise me, since bed bugs are the ultimate hitchhiker. Unlike roaches or other varmits, bed bugs are attracted to people - not dirty living conditions, so you can have a perfectly clean apartment that still may be infested with bed bugs. In the past very strong chemicals (DDT) kept the bed bug population at bay, but with many pesticides now outlawed, bed bugs have made a comeback, much to the dismay of the rental community.

The pesky bed bug has appeared at more than a few of my client's rental complexes and trsut me when I tell you they are expensive and difficult to indicate. The best way to eliminate bed bugs is to prevent them from even showing up in the first place. But prevention is difficult since they hitch rides on furniture, clothing and other personal belongings.

Whereas, bed bugs used to be the specialty of exterminators who would spray chemicals around the infested rooms to kill them and their eggs, there are now other contractors that have entered the field. There are bed bug sniffing dogs that can be rented to sniff around your rental unit and alert you to any possible infestation and other companies that are killing bed bugs by different means then chemicals - such as heat treatment.

Because of the huge increase of bed bugs being found in rental housing lately, the AASEW's June membership meeting included a presentation on this "itchy" subject by AASEW business member, Giertsen Company of Wisconsin. Giertsen Co. is primarily a remediation company (wind, water and fire damage) however they have learned that the heating equipmen that is used to dry out a water damages property also can be used to kill the pesky bed bug.

Below is the PowerPoint presentation that Patrick Meyer of Giertsen Co. shared with the AASEW on June 21, 2010.

The old saying that my parents would tell me prior to going to bed when I was a kid -- "Don't let the bed bugs bite" -- has a whole new context for me after viewing this presentation.

Giertsen Bed Bug Blog

View more presentations from Petrie Stocking.

Compiling a List of "Bad" Tenants - a/k/a "Blacklisting" - Can Cause A Landlord A World of Hurt

Every so often it is suggested that landlords begin compiling a list of bad tenants to share with one another. This topic often arises after a landlord has been "burned" by a bad tenant that skipped out on a lease owing rent, caused severe damage to the landlord's rental property, or any number of other breaches of their rental agreement. It is argued that such a list could prevent other landlords from renting to the same "bad" tenant and hopefully avoid being burned as well. While this seems like a great idea on its face, blacklising tenants is full of legal ramifications.

This issue came up last week on the "AASEW Listserv" (a Yahoo groups community that includes 800+ landlords and property managers primarily located in the SE Wisconsin area that discuss all things rental). The list serv is expertly moderated by Tim Ballering. If you are not a member of this list serv (and you are invovled in the rental property industry) then you should definitely join by sending an email to ApartmentAssoc-subscribe@yahoogroups.com

Below is the question posed by a landlord and the moderator's response.

QUESTION:

Does our group have a policy about sharing names of problem tenants? I am sure some landlords would love to know who is a problem and others may feel differently about that.

ANSWER:

Short Version: We do not permit it.

Long Version (why we do not permit something that would be a great tool for all of us):

Posting deadbeats names to a list violates the Federal Fair Debt Collection Practices Act (FDCPA).

"Blacklists" are quite illegal and potentially costly to those involved with maintaining the list or those sharing the names that end up on the list. If you keep a list of who has been naughtly or nice, that list must contain both good and bad information about the tenant. Additionally, those named tenants must have the ability to review and challenge the validity of their inclusion. Finally, all provisions of the Fair Credit Reporting Act must be complied with that any other credit bureau must adhere to.

Fines can be as large as $50,000 per offense plus the poosibility of being sued civilly.

The pertinent rules under the FDCPA are:

§ 805. Communication in connection with debt collection

. . .

(b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

§ 806. Harassment or abuse

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

. . .

(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 603(f) or 604(3)

__________________________

So as helpful as a listing of bad tenants might appear on its face, it is illegal. The best way to avoid renting to problem tenants legally is to properly screen all rental applicants - to read more about this please see my April 17th post and refer to these helpful internet sites.

New Law Limits Landlords From Pursuing A Deceased Tenant's Estate

Governor Doyle recently signed into law 2009 WI Act 323 which creates a new section to Chapter 704 of the Wisconsin Statutes regarding Landlord-Tenant Law.

The new section 704.165, Wis. Stats., is entitled "Termination of Tenancy at Death of Tenant"

Below is a summary of the new law:

1. If a residential tenant dies and had a term lease, his/her tenancy will be terminated 60 days after the landlord learns of the death or the expiration of the rental term, whichever occurs first.

2. If a residential tenant dies and was under a periodic tenancy (i.e. month to month) then the tenancy will terminate 60 days after the landlord becomes aware of the death. If the deceased tenant's estate provides proper notice to terminate the tenancy under sec. 704.19, Wis. Stats. then the tenancy may be terminated even earlier as outlined in 704.19, Wis. Stats.

3. Neither the deceased residential tenant nor his/her estate will be liable for any rent after the tenancy is terminated.

4. The landlord must still attempt to mitigate the deceased tenant's damages by making attempts to re-rent the unit before the tenancy terminates.

5. Nothing in this new section relieves another adult tenant who resides at the rental property (and who did not die) from their obligations under the rental agreement or otherwise.

6. A landlord may not contact or otherwise communicate with a member of the deceased tenant's family in an attempt to obtain rent for which the family member has no liability.

7. This new law first applies to tenancies and rental agreements that are entered into on or after May 12, 2010.

Latest EPA Proposed Changes to "Renovate Right" Rules -- Deadline to Provide Feedback July 6th

ALERT! The latest EPA proposal will require dust sampling and lab testing clearance on many small jobs. The EPA estimates $160 per room in testing cost. In WI testing can only be done by state certified risk assessors and the cost is about $240 per room. So a repair to a damaged door jamb could cost ten times as much as it does today, and many times more than that if you were a do it yourselfer.

From the Federal Register (Link Below) #2 and #4 are the "gotchas."

Dust wipe testing must be performed after all renovations involving:

- Use of a heat gun at temperatures below 1,100 degrees Fahrenheit

- Removal or replacement of window or door frames

- Scraping 60 ft [2] or more of painted surfaces

- Removing more than 40 ft [2] of trim, molding, cabinets, or other fixtures.

Link to the proposed rule in the Federal Register

The 60 day comment period ends July 6th, 2010

Read the comments submitted by the Apartment Association of Southeastern WI and links to the EPA comment page at:

http://www.renovatorrules.com/

Make sure you post some feedback. This is one of the biggest changes to affect our industry and these changes are huge and will put many contractors (and landlords) out of business. Fines for violating these new laws can be as much as $32,500 per each violation.

AASEW's New "Mentor's Corner" to Debut on June 21st

At the next membership meeting of the Apartment Association of Southeastern Wisconsin (AASEW), to be held on June 21, 2010, the AASEW will be debuting its new "Mentor's Corner" for all AASEW members.

The "Mentor's Corner" will be held at 6:30 pm prior to the general meeting. The "Corner" will be staffed by one or more "seasoned" landlords who will be ready to answer your non-legal questions about any aspect of landlording. This is the place to be to get "street-smart" answers from landlords that have already "been there and done that."

Come and ask all those nagging questions that you have been afraid to ask such as how to deal with such as the tenant that pays rent lat every month, how to deal with parking problems, intra-tenant disputes, what to do when tenants fail to mow the lawn, chronic complainers . . . .

The "Mentor's Corner" will be held at 6:30 pm before every AASEW membership meeting (which are always held on the 3rd Monday of each month) at the Best Western Hotel located at 1005 S. Moorland Road in Brookfield.

Hope to see you there.

UPCOMING SEMINAR - How Evictions Work: Rules for Landlords and Property Managers

I will be presenting a seminar for the Institute of Real Estate Management (IREM Milwaukee Chapter #13) on several landlord - tenant law related topics in the near future

Topics to be covered:

1. Causes for Eviction

2. Notices To Terminate Tenancy

3. The Judicial Eviction Process

This seminar will be held on Thursday, June 17, 2010 from 9am - 10:30 am. Registration will start at 8:30 am.

The seminar will be held at The Wisconsin Club which is located at 900 W. Wisconsin Avenue in Milwaukee (right across from the Milwaukee County Courthouse - how appropriate : )

There will be handouts including a comprehensive outline on the topics covered and forms.

The cost will be $10 for ARM members, $25 for other IREM members and $45 for non-IREM members. If you are interested in attending please contact Jennie Macaluso-Ruditys at (414) 476-4736. Call Jennie ASAP as she will need to get a head count to the Wisconsin Club.

Hope to see you there.

Must A Landlord Provide A Census Taker with Information About His Tenants?

I have recently recieved several calls from my landlord and property manager clients asking me whether or not they have to provide census workers (called "census enumerators" or "census takers" ) with information about their tenants. Census employees started knocking on the doors of those who failed to return their census questionnaire on May 1st and will continue to do so until July 10th.

The short answer to the question is "yes." If a census taker has attempted to contact and obtain answers to the census questions from your tenant, and been unable unable to do so, the census taker is allowed to -- and in fact, is required to -- contact the landlord or manager of the rental property to obtain the requested information about your tenant.

Typically, providing personal information about your tenant to a third party is not something that you want to do unless you enjoy being sued. But providing a census enumerator with the answers to the questions from the census questionnaire regarding your tenants is one of the few exceptions to this rule. The Department of Commerce has clearly stated that landlords and property managers of rental property will not be in violation of any privacy laws if they provides the requested information about their tenants to the census taker. In fact, if a landlord refuses to provide the census enumerator with the requested information about his/her tenants, s/he may be fined up to $500.

The applicable law is found at Title 13 of the Code of Federal Regulations (CFR), Chapter 7, Subchapter II, Sections 221 and 223.

If you just clicked on the above links and attempted to read the two code sections, I commend you - they are difficult to read (and understand) and are filled with all kind of archaic language that is referred to as "legalese." Since I actually want this post to educate you -- and not piss you off -- allow me to paraphrase the law for you:

1. If a census enumerator is unable to contact the tenant and obtain the census info from the tenant, then the landlord or manager must assist the census employee in answering the census questions regarding their tenants.

2. The landlord or manager may ask to see the census workers identification before divulging any information.

3. The first question that the enumerator will ask is whether or not the apartment unit was occupied on April 1, 2010.

4. If the unit was not occupied by anyone on April 1, 2010, then the census employee questions for you regarding that rental unit should be done.

5. Assuming that the unit was occupied by a tenant on April 1, 2010, then you should provide the census enumerator with answers to as many of the census questions as possible. The census questionnaires questions can be found here. Two of the questions on the census questionnaire ask about an individual's race, the census enumerators are aware that you may not know this information about your tenants.

6. You are not breaking any privacy laws by answering these questions about your tenants for the census taker.

7. You may be fined up to $500 for failing to provide the census taker with this information about your tenants.

In summary, if the census taker is unable to reach your tenant and obtain answers to the census questionnaire from them, then you as the landlord or manager, are required to assist the census employee by providing the census employee with that information. Failure to do so may result in a $500 fine.

After you are done talking to the census worker, you may want to talk to your tenant about how important it is to complete their census questionnaire next time -- in part so that their landlord doesn't have to spend all of his/her limited time, doing the tenant's work for them. Good luck with that : )

CITY'S MOTION TO DISMISS LANDLORDS' LAWSUIT DENIED BY THE COURT - LAWSUIT CONTINUES

On May 21, 2010, Judge Timothy Wotkowiak, denied the City of Milwaukee's motion to dismiss the lawsuit filed by three Milwaukee landlords who sued the city as a result of its newly enacted ordinance requiring mandatory rental inspections of rental housing in two areas of the city.

For background information on the ordinance that went into effect on January 1, 2010, please read my November 24, 2009 post. For background information on the lawsuit that was filed against the city you can refer to my December 31, 2009 post. And for information about the city's motion to dismiss and arguments both for and against the motion I would direct you to my May 4, 2010 post.

As stated in my earlier post, the plaintiff landlords made three key arguments as to why it was not necessary for them to serve the city with a formal Notice of Claim prior to initiating the lawsuit. Judge Witkowiak agreed with the arguments offerred by the landlords on all three issues.

Issue #1:

The court indicated that it was not practical to require the landlords to serve the city with a formal Notice of Claim -- which would have allowed the city 120 to respond -- in part because of the basis of the lawsuit. The landlords' lawsuit included the filing of a temporary restraining order to stop an immediate harm (the carrying out of the ordinance) and to make the plaintiffs wait for 120 days before they could even file suit would not be practical or just as the city would have been able to implement what is argued to be an unconstitutional program for at least 120 days before a court could review the issues and concerns with the ordinance.

Issue #2:

The court found that the city did have actual notice of the claim even though a formal notice was not served upon it. Judge Witkowiak spent considerable time pointing out all of various contacts made by landlords, the Apartment Association of SE Wisconsin (AASEW) , and others which provided the city with actual notice of the concerns with the ordinance. The court made reference to the letter that the AASEW's lawyers (who also happen to represent the three plaintiff landlords)sent to City Attorney Grant Langley outlining the many problems with the proposed ordinance. The court also referred to the letter that I wrote as President of the AASEW to Common Council President Willie Hines and the city's other alderman, expressing the association's many concerns with the ordinance. The aformentioned letters, along with a DVD of the public hearing held before the ZND committee of the Commom Council, were all attached to the plaintiff landlords' brief in opposition to the city's motion to dismiss, and appeared to carry great weight with the Court.

Issue #3:

Judge Witkowiak also stated that the city sufferred no prejudice by not having been served with a formal Notice of Claim by the plaintiffs. The city appeared to argue that it was prejudiced because it had to prepare its legal defense to the lawsuit and that somehow that was to be considered sufficient prejudice to grant the city's motion. I have heard a lot of "out there" arguments during my 15 years of law practice, but that was a new one, for me. The court properly determined that that was not the type of "prejudice" that the city needed to demonstrate in order to prevail on its motion.

As such a result of this decision, the plaintiff landlords' lawsuit will now move forward and address the actual problems with the ordinance.

A Scheduling Conference has been set for June 15, 2010. On this date, the court will provide deadlines for the parties to complete various matters that will assist in moving the case forward, such as deadlines to complete discovery (the fact gathering process), deadlines to file dispositive motions (motions that could end the case without the need for a fact-finding trial), and other matters.

Based on the comments of the attorney's for both the city and the plaintiff landlords it appears that both sides may very well be contemplating the filing of a dispositive motion -- such as a summary judgment motion -- which would allow the court to decide the lawsuit as a matter of law, without the need for a fact finding trial, because there are no material facts that are in dispute.

I will keep you up to date on the status of the lawsuit as I learn more.

A Short Hiatus

As many of you know, I am about to get married at the ripe old age of 40 this Friday. My fiancee, Nancy, and I will be getting married in Maui and then spending some additional time honeymooning on the islands.

While I initially thought about bringing my netbook with me and posting a blog or two while vacationing, upon deeper reflection I have decided against this --- somehow I don't think that would be a good way to start out my marriage.

As such, I will be taking a short hiatus through the Memorial Day holiday.

Assuming I am not buried beneath a desk of work, voicemails, emails and mail upon my return -- I have never been out of the office for more than 5 days, yet alone 2 weeks as will be the case this time -- it is my plan to resume blogging during the first week of June.

I hope that you all will understand and not forget about this blog during my absence and I look forward to resuming my blogging upon my return as a married man.

Happy Blogiversary

May 15, 2010 will be the one year anniversary of Tristan's Landlord-Tenant Law Blog. I thought I would use this occassion to post some interesting data that I have learned about my blog over the past year - thank you Google Analytics.

When I first began this project I did not know what to expect. I have been overwhelmed by the blog's popularity and the support of its readers over the last 12 months. My initial hope was to create a site that landlords and property managers could go to to learn more about landlord-tenant law in Wisconsin. It was also my hope that this blog would allow for those of us who own rental properties to discuss best practices and to learn from each other. I think these two goals have been achieved, and then some.

As I write this post, there are currently 111 posts that viewers can read covering all aspects of landlord tenant law including: new legislation affecting the rental housing industry, new case law that has changed Wisconisn landlord tenant law, discussions about best management practices including how to legally serve a 5 day notice and how to draft a 21 day letter (statement of how security deposit was applied), fair housing/discrimination law, upcoming seminars on topics of interest to landlords and much much more.

There have been over 233 comments posted about the 111 blog posts. With an average of over 2 comments per post it seems as though there has been at least some discussion about the topics that are important to the readers.

Since going live, there have been over 17,000 visits to Tristan's Landlord-Tenant Law Blog. During those 17,000 + visits over 42,375 pages have been viewed. When visiting my blog people spend an average of 2 minutes and 38 seconds on the site and view an average of 2.47 posts.

Of those 17,000 + visits, over 16,400 of them came from visitors within the United States. The site has also received visits from readers in England, Canada, India, Austrailia, the Philippines, Ireland, and Mexico.

Over the past 12 months, the most popular blog posts have been:

1. Late Fees-Part 1: What Amount Can You Legally Charge?

2. Lead-Based Paint Disclosure Form: You Must Use This Document

3. How To Legally Serve A 5-Day Notice To Pay Rent or Vacate

4. Suing An Ex-Tenant For Past Due Rent: What Factors To Consider

5. SSN Validator: Free Website That Allows You To Verify A Social Security Number.

Just this past month I have started to receive several "pingbacks." I had to call my IT guru to efind out what the heck a pingback is, but I learned that they are a good thing. Essentially a pingback is someone linking to your blog - a sign that you have some useful content.

To give you an idea of how the blog has grown since its debut, during its first full month only 28 people visited the site. The next month that number jumped to 731. Last month there were over 2,221 visits to the blog.

I realized the value of this blog one day when I was sitting in Eviction Court in Milwaukee County and overheard one landlord talking to another and telling him about my landlord-tenant law blog that he needed to check out because it contained some helpful information. A few days later, I was approached by a Legal Action attorney said that she appreciated the information on the blog because she felt that it was important to get the correct information out to the public.

One unexpected bonus that has occurred as a result of this blog is that I have been able to use some of my posts to assist my current clients. I have started providing clients with links to certain blog posts to emphasize a point that I made to them during a consultation. Being able to provide a client with the basic law about a particular topic that we just discussed has been much appreciated. They can then print out the post and refer back to it in the future.

Along with the good, there has some bad. After one recent post dealing with the City of Milwaukee's plan to enact a new ordinance requiring mandatory rental inspections, I was flamed by another blogger. My skin is pretty thick so this didn't bother me too much although I still have difficulty comprehending that the same person who will rant and rave to high heaven on the internet and call you every name under the sun and attack you personally, would never have the nerve to say things to your face. Just read some of the comments that people post on the journal Sentinel blogs -- WOW. Hiding under an anonymous screen name seems to give some people carte blanche to act without consideration or foresight.

Even worse than being flamed myself, was the fact that a friend of mine was also flamed because he was attempting to assist me on a technical matter beyond my grasp. My friend uploaded a flyer that had been distributed on the east side of Milwaukee and which contained some very outrageous rhetoric against the proposed ordinance. Because I did not yet know how to upload a document and then link to it on my blog, I needed some assistance. Unfortunately, it was spread across the blogosphere (OK just the Milwaukee blogosphere) that my friend was the author of the flyer - which was not the case - just because he was the person that uploaded the document.

Over the past year however, that was the only sour moment related to my blog that comes to mind. For the most part I have enjoyed publishing this blog and hope to continue doing so as long as it continues to be helpful to others.

I have learned much about myself during this past year as a blogger. First, I have learned that I am not as fast of a writer as I thought I was - my fiancee will testify to this as she has watched me sit in front of my computer for hours only to have a short blog post to show for all of my work. She has often had to encourages me to turn off the #%@* computer and come to bed. Second, I have learned that I actually do procrastinate (at least I do when it comes to writing a blog post). Third, I have also learned that while I type fast for a guy with no training, I do not type accurately. This sad fact dawns on me time and time again each morning as I sit with my bowl of Kashi cereal proofreading the post that I drafted the night before. While I actually do proof read my posts multiple times - I still find many typos and grammatical errors.

While I have been pleasantly surprised with the success of this blog, I by no means plan to sit back on my laurels and stagnate. If you have any suggestions of topics for future posts please let me know. I would like to tell the reader who faxed me months ago and asked me to write a post about how a tenant's bankruptcy filing affects the eviction process, that I have not forgotten about you. While I often cannot post as frequently as I would like -- that darn "work" thing seems to get in the way -- I most certainly am willing to write about topics and issues that are of particular interest to you.

In closing, I would like to thank everyone that has visited my blog this past year, and especially the 80 of you that are currently subscribed to my blog. Without your interest and readership, this blog would just be another lawyer spouting a bunch of legal mumbo jumbo.

Update On Landlords' Lawsuit Against City of Milwaukee and Its Rental Inspection Ordinance

There has not been a lot of media reporting on the lawsuit brought by three landlords against the City of Milwaukee and its rental inspection ordinance so I thought I would take the time to update you on its status.

If you are unfamiliar with the basics of the lawsuit you should refer to my earlier post on the topic.

The City of Milwaukee has filed a Motion To Dismiss the Landlords' lawsuit. Essentially the City is arguing that the lawsuit against it should be dimissed because the City was not provided the proper notice of the landlords' claims prior to the lawsuit being filed. In Wisconsin, if a person wants to sue a government entity - which would include the City of Milwaukee -- the law states that prior to the lawsuit, the government entity must be served with a Notice of Claim. The City then has 120 days to review that Notice and either attempt to settle the claim or deny the claim. If the City does not deny the claim within the 120 days it will be deemed denied anyway. After the 120 days have passed, a person then has 6 months in which to file the lawsuit. If more than 6 months passes then the person would be precluded from filing the lawsuit.

The reasoning behind what is called the "Notice of Claim" statute (Sec. 893.80, Wis. Stats.) is allegedly to allow the government an opportunity to settle a claim in order to avoid expensive litigation. A secondary reason for the requirement is to provide the government with enough information so that it can budget accordingly for settlement or litigation.

As a quick aside: I have sued a government entity on behalf of a client in the past so I am familiar with the Notice of Cliam statute. In my opinion the government does very little during the 120 days after it is served notice. The typical reaction is to ignore the claim and not even take the time to deny it but rather to allow the 120 days to pass after which the claim will be automatically denied. In fact, I would even go so far as to say that based on my experience that the government typically ignores the Notice of Claim that is served upon it just to see if the aggrieved person will actually file a lawsuit. It costs very little to file a Notice of Claim (which often is done without the assistance of an attorney) but it is expensive to file a lawsuit. The government has little to no interest to pay money to someone unless it knows the individual who filed the claim is serious. Essentially the Notice of Claim statute is a "legal hoop" that the government makes you jump through to see how high you will jump. There may little to no reason for you to jump, but nontheless, jump you must.

So the City of Milwaukee is arguing that the plaintiff landlords' didn't file the Notice prior to filing the lawsuit and therefore their lawsuit should be dismissed.

In its response brief, the plaintiffs argue that a formal notice of claim need not always be served as there are exceptions to this requirement. The plaintiff landlords rely on a recent Court of Appeals decision, Kuehne v. Burdette, which held that the Notice of Claim statute does not always require a formal notice of claim to be served nor is it always required for a plaintiff to wait 120 days before filing a lawsuit against the government.

The plaintiff landlords make three key arguements in their brief in opposition to the City's motion to dismiss:

1. Because the City's Rental Inspection Ordinance became law on January 1, 2010 -- just 22 days after it was passed by the Common Council -- and because the nature of the lawsuit is to determine whether or not the ordinance is constitutional, the plaintiffs were unable to comply with the notice of claim statute.

2. The City had actual notice of the claim even if a formal notice of claim was not served on it.

3. The City sufferred no prejudice as a result of the plaintiffs filing the lawsuit without first filing a formal notice of claim.

The plaintiffs' first argument is very similar to the one made in the Kuehne case. In Kuehne, five residents of a town filed an injunction against the Town of Ledgeview in order to prevent it from holding a referendum on whether or not the town should incorporate. The court in Kuehne stated that the notice of claim statute probably did not apply in the context of the lawsuit because it is illogical that a town can use lack of notice as a defense when the Town by its own actions made compliance with the notice of claim statute impossible.

The plaintiff landlords argue that the exact same situation in Kuehne is at play in the lawsuit against the City of Milwaukee. The City adopted the new ordinance and Mayor Barrett signed it into law 22 days later. If the plaintiffs had been required to file a notice of claim the City would have been under no legal obligation to respond to the notice until approximately May 1, 2010. By that time the rental inspection ordinance would have been in effect for a minimum of 4 months without a court being allowed to examine the constitutionality of the ordinance. The City can't use the notice of claim defense in order to allow it to move forward with its unconstitutional ordinance.

The plaintiffs' second argument is that they City had actual notice of the claim because the plaintiffs, through the actions of the AASEW, advised the City of its concerns and objections to the proposed ordinance as eary as October 29, 2009. On October 29th yours truly sent a letter to the Common Council pointing out the various constitutional problems with the ordinance. Additionally, the AASEW's attorney (who is also the attorneyfor the plaintiff landlords) also sent a letter to the City Attorney on the same date setting forth the myriad of problems with the proposed ordinance. Additionally there were numerous communications between the AASEW, its attorneys, and the alderman that sponsored the ordinance (Nic Kovac) and the DNS Commisioner. So the City had actual notice of the plaintiffs' claims approximately two months prior to the filing of the lawsuit. By contrast, in the Kuehne case the plaintiff gave notice to the Town on the same day as the lawsuit was filed and the Court of Appeals found that notice to have been sufficient.

Finally, the plaintiffs argue that the City was not prejudiced by the lack of a formal notice of claim. If the purpose of the notice requirement is to allow a government entity time to potentially resolve a claim, the fact that the AASEW 9of which the plaintiffs are members) notified the City of the problems with the ordinance and even met to discuss the potential problems, demonstrates that the City had the opportunity to resolve the issue if it wanted to. In essence the City is arguing that the plaintiff should be required to jump through the legal hoop for the sake of jumping rather than because the jumping serves an actual purpose.

The City was allowed the opportunity to have the last word so it did file a reply brief to the plaintiffs' brief in oppostion to the motion to dismiss.

I would point out that even if the City should prevail on its motion to dismiss, all that this will do is cause delay. A notice of claim has already been filed and served on the City (just in case) and another lawsuit will be filed if needed. So essentially the City's motion, if successful, will just delay things rather then address the underlying issue -- whether or not the rental inspection ordinance is constitutional as written.

A hearing on the City's motion to dismiss is scheduled to be heard before Judge Timothy Witkowiak on May 21, 2010 at 9:30 am in room 412 of the Milwaukee County Courthouse. The hearing, as most legal proceedings are, is open to the public. For those of you unable to attend, I will provide you with an update hopefully during the week of June 1st after I have returned from my upcoming wedding and honeymoon.