Q&A: What A Landlord Should Do If Tenant Gives An Improper 28 Day Notice

Every now and then I like to highlight a question or comment that I receive on this blog that I think is especially educational. I recently received a great question from Peter which I have decided to reproduce as a blog post so that more people can view it and become better educated on the topic.

This specific question has to do with a month to month tenancy in which the tenant has served the landlord with an improper 28 day notice as the termination date does not coincide with the end of a rental period (i.e. end of the month) as required under Wisconsin Statute sec. 704.19.

Attorney Pettit,

This may be a little off subject, but I was hoping you could explain what a landlord's responsibility is when a tenant serves their landlord with a notice terminating their tenancy, but specifies an inaccurate termination date in the notice.

For example: a periodic tenant serves a 28 day notice to their landlord on 04-01-2012 terminating their tenancy on 05-05-2012. The notice was served with the proper length of time under Stat. 704.19(3), but it did not terminate the tenancy at the end of a rental period as required by Stat. 704.19(2)(b)1.

I know Stat. 704.19(5) says that such a notice would be valid, but would not be effective until the first date which could have been properly specified - i.e. May 31, 2012. My concern is the second-to-last sentence in Stat. 704.19(5) that says the party to whom the notice was served may “elect to treat the date specified in the notice as the legally effective date.”

Does that sentence mean the landlord has an obligation to inform the tenant that the termination date in their notice was inaccurate and will not be effective until May 31? If the landlord does not inform the tenant that the termination date in their notice was ineffective, could that be construed as the landlord’s “election” to treat the inaccurate date as the legally effective date?

There is no explanation in the chapter which describes what constitutes an “election” in this circumstance and that sentence seemingly creates an enormous loophole through which tenants can escape their responsibility to give a proper notice to vacate. Any thoughts or information you have on this matter are greatly appreciated. Thank you.

-----

Peter - Thanks for your question. Plese feel free to call me Tristan : )

You have cited the proper Wisconsin Statute that is applicable for this issue - 704.19. Sec. 704.19 is really the only guidance that we have on the issue. I am not aware of any caselaw interpreting 704.19 in Wisconsin.

I interpret the statute to mean that you, the landlord, can choose to accept the defective notice as it is and relieve the tenant for responsibility for rent after 5-5-12. If you do not want to accept the defective notice and relieve the tenant of responsibility as of 5-5 then I think it would be necessary to point out the tenant's error to the tenant, preferably in writing, to avoid an "waiver" argument that might be made by the tenant.

Each court (each judge, each court commissioner) is able to interpret the statute and the term "election" as they wish and to determine if you, the landlord, waived your right to the entire month's rent by failing to bring the tenant's error in the notice to his/her attention.

I don't know whether or not a court would decide that if you failed to bring the defective notice to the tenant's attention that you waived your right to collect the full month's rent. But sxperiencing how tenant-friendly many Wisconsin courts are, I wouldn't want to take the chance. To be safe -- and to "CYA" -- I would assume that a tenant might make the "waiver" argument and that a court could might make a ruling that because you did not bring this discrepency to the tenant's attention, that you waived your right to the full rent amount for May 2012.

From a practical standpoint, if I received an improper 28 day notice from a tenant, I would call the tenant and politely explain to them why the notice was improper and what the legal ramifications are --- that they are "on the hook" for all of May's rent. I would then follow that telephone call with a letter memorializing the discussion and explaining why the tenant's 28 day notice was improper-- explaining that the 28 day notice must coincide with the end of a rent paying period per 704.19(2)(b)(1).

Next, I would include in my letter that had the notice been drafted properly, that the tenant would be responsible for rent through the last day of the month - May 31st. I would then tell the tenant that you will treat the notice as effective on the last day of the month and remind them that while they can leave before the last day of the May that they are responsible for the full month's rent.

I would then wait and see what the tenant does.

Hopefully, after your explanation and showing them the statute, the tenant will understand that they made a mistake and pay you the entire month's rent.

If the tenant doesn't pay you any rent or only pays rent for 5 days of May, you should "5 day" them and then decide if you want to retain a portion of their security deposit to cover the rent that they are legally responsible for paying or if you would prefer to return the security deposit (to avoid any potential chance of the tenant being awarded double damages and attorney's fees) and sue them in a small claims (non-eviction) action for the rent they owe. There are pros and cons to either option and I am not suggesting one over the other but as I see it those are the two options that you have.

Thank you for your great question.

Don't Miss AASEW's January "Town Hall" Membership Meeting on January 16, 2012 at 7 PM

January's Apartment Association Meeting will be held this coming Monday, January 16, 2012 at 7 pm at the Best Western Hotel located at 1005 S. Moorland Road in Brookfield.

We will be hosting a "Town Hall" style meeting at which you can pose any and all of your property management or landlord-tenant law questions. Both Stacy Hegg of Wellston Properties and Atty. Tristan Pettit will be panel members.

Please bring yourself, a friend, and your questions to our meeting.

We have many new and exciting things in store for the AASEW in 2012. If you haven’t been to a meeting in awhile please come and join us!!!!

See the Association page for the more details

http://apartmentassoc.org

You Will Not Want To Miss AASEW's Fourth Annual Landlord Boot Camp on Saturday Feb. 25th

Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands of dollars.

The Apartment Association of Southeastern Wisconsin's Fourth Annual “Landlord Boot Camp” can help you navigate these treacherous waters and teach you how to run your properties with greater profit and less hassles.

I have given similar landlord-tenant law seminars to fellow attorneys, landlords, and property manager organizations throughout the state for other state-wide semianr companies that charge attendees $300-$400. This is your opportunity to learn all of the same information at a huge discount through the Apartment Association.

Who: Taught by Attorney Tristan R. Pettit (who drafts the landlord tenant forms for Wisconsin Legal Blank)

When: Saturday, February 25th, 2012. 8:30 am – 5 pm

Where: Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included: 100 plus page manual/outline to help you put what you learn into practice plus helpful forms.

Cost: $159 for AASEW members and $249 for non-members. If you are not a member of AASEW but are a member of another landlord/apartment association the cost to attend will be $199.

Specials: Not a member? Pay just a dollar more and enjoy a 2012 AASEW membership.

Wisconsin landlord-tenant laws are constantly changing. To help keep you up to date we offer prior attendees a $50 discount.

Sign up by going to the AASEW's Landlord Boot Camp landing page where you can sign up online and pay via PayPal.

What you will learn at the Apartment Association's 2012 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, including:

1. How to properly screen prospective tenants.
2. How to draft written screening criteria to assist you in the selection process and protect you from discrimination complaints.
3. How to comply with both federal and state Fair Housing laws including how to handle with “reasonable modifications” and “reasonable accommodations” requests.
4. How to legally reject an applicant.
5. What rental documents you should be using and why.
6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
8. When you are legally allowed to enter your tenant’s apartment.
9. How to properly draft an eviction summons and complaint.
10. What to do to keep the commissioner from dismissing your eviction suit.
11. What you can legally deduct from a security deposit.
12. How to properly draft a security deposit transmittal / 21 day letter.
13. How to handle pet damage.
14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).

. . . and much more. There will also be time for questions and answers.

You get all this for less than you would pay for an hour of an attorney's time.

Last year’s AASEW Landlord Boot Camp was filled to capacity and we even had to turn a few people away. So call early to reserve your spot.

Call the Association at (414) 276-7378, email membership@apartmentassoc.org or go to our Landlord Boot Camp landing page to sign up online and reserve your spot.

Remember that “landlording” is a business — so take the time to educate yourself on how to better manage your business and avoid costly errors!

"Landlord Preemption Bill" Signed Into Law

It is nice to finally see some landlord-friendly laws being passed in the state of Wisconsin.

On December 7, 2011, Senate Bill 107 (commonly referred to as the “Landlord Preemption Bill”) was signed into law by Governor Scott Walker as 2011 Wisconsin Act 108. This new law creates Section 66.0104 of the Wisconsin Statutes and prohibits municipalities from enacting an ordinance that places certain limits or requirements on a landlord.

Specifically, section 66.0104 prohibits any city, village, town or county from enacting an ordinance that prohibits a landlord from obtaining and using any of the following information with respect to a tenant or prospective tenant:

1. Monthly household income
2. Occupation
3. Rental history
4. Credit information
5. Court records, including arrest and conviction records, to which there is public access
6. Social Security number or other proof of identity.

The new law also prevents a municipality from limiting how far back in time a prospective tenant’s credit information, conviction record, or previous housing may be taken

into account by a landlord. It also prevents a municipality from prohibiting or limiting when a landlord can enter into a rental agreement for a rental unit with a prospective tenant or show a rental unit to a prospective tenant during the tenancy of a current tenant.

Additionally, the new law prohibits a municipality from enacting an ordinance that places requirements on a landlord with respect to security deposits, earnest money or pre or post tenancy inspections that are in addition to the requirements currently set forth in Wisconsin Administrative Code ATCP 134.

If a municipality has an ordinance on its books that conflicts with sec. 66.0104 than that ordinance is no longer applicable and may not be enforced.

This new law will positively affect landlords throughout the state, but most especially in Madison and its environs. I think as a result of Wisconsin Act 108 the city of Madison's Code just lost a few pounds.

Governor Walker Signs 2 Pro-Landlord Bills Into Law

Just wanted to let everone know that in the last few days Governor Walker has signed into law two bills that will positively affect landlords.

- On December 7th, Governor Walker signed SB 107 (2011 Wisconsin Act 108) which relates to prohibiting municipalities from creating ordinances that put limits on landlords. If you would like more detail on this law please see my prior blog post on the topic. Here is a link to the legislative history of the bill.

- On December 7th Governor Walker also signed into law SB 12 (2011 Wisconsin Act 92) which creates a presumption that a tenant's attorney's fees should be capped at 3 times the amount of damages at issue when a tenant sues a landlord for an alleged violation of ATCP 134. If you would like more information on this see my prior blog post. Here is a link to the legislative history of the bill.

New "Residential Lease Renewal or Notice To Vacate" Form Available at Wisconsin Legal Blank

I have recently completed drafting a new landlord-tenant form that is now available at Wisconsin Legal Blank Co., Inc.

The new form is entitled "Residential Lease Renewal or Notice To Vacate" and a sample can be viewed here.

Essentially this is a form that a landlord could use when his tenant's lease is ending (and does not automatically renew or revert to a month to month tenancy) and the landlord wants the tenant to remain as a tenant. The tenant would be allowed to opt for 1 of 3 options on the form.

1. Renew the lease for a specific term, thus creating another lease.

2. Continue under a month to month tenancy

3. Vacate at the end of the rental term.

With this form, the landlord should be filing in all of the blanks before offering to the tenant.. So for instance, if the landlord does not want to give the tenant the option to remain as a month to month tenant, that option could be stricken. The landlord should fill in the dates of any new term and any new monthly rent amount.

Per the language of the form, all terms and conditions of the current (and soon to expire) lease, rules and regulations, nonstandard rental provisions etc. will continue in full force and effect.

The form provides the tenant with a DEADLINE to return the form to the landlord so that the landlord will know what the tenant intends to do.

It also states that if the tenant fails to return the form to the landlord by the deadline, that the landlord will assume that the tenant intends to vacate the rental at the end of the rental term. So if a tenant does not return the form to you by the deadline, you should begin the process of re-renting the unit (or make a follow up call to the tenant to see if his unauthorized pit bull dog accidentally ate it, if you feel like enabling the tenant : )

I hope that the form proves to be helpful.

Landlord Owes $40,000 to Tenant In Baltimore Bed Bug Lawsuit

I stated in one of my prior posts that with the influx of bed bug infestations around the country, that it would only be a matter of time until we saw an increase in bed bug litigation as well.

While bed bug litigation is in its infancy, it has taken a large step forward recently.

A jury in Baltimore recently awarded a tenant $40,000 in damages, in what is described by the tenant's attorney as the "first bed bug trial in Baltimore." While I was not present at the 3 day trial or able to read a transcript of the trial, a recent news report indicates that the basis of the large damage award was the landlord's delay in addressing the bed bug infestation in the tenant's apartment. Allegedly, the bed bugs were introduced into the apartment complex by a neighboring tenant who then vacated, causing the bed bugs to migrate to the plaintiff's unit in search of food.

This verdict should concern landlords everywhere. We are now aware know that 12 individuals in Baltimore, felt a tenant should be awarded damages, and a landlord should be required to pay them, even though the landlord did not introduce the pests into the apartment complex. The jury award was based solely on the landlord's delay in addressing and resolving the bed bug infestation.

This is a warning to landlords everywhere that you cannot just sit back and tell your tenants that it is their responsibility to get rid og the bed bugs, even if the tenant brought the pests to the apartment. I have fielded many telephone calls from landlords and management companies, where I was told that the landlord/agent didn't feel that they should be required to eradicate the bed bugs since it was the tenant that brought them into the unit.

I think it would be foolhardy to sit back and require your tenant to eradicate the bugs. My advice to landlords is that you -- the landlord -- should take control of the situation and vet and hire a qualified exterminator. If you leave it to your tenants to eradicate the bed bugs, you may be sorry. A tenant may attempt to use homemade remedies that do not work and will allow the infestation to grow larger. A tenant may elect to use bug bombs -- which wil only cause the bed bugs to spread out to different units, making treatment harder.

It is your property. It is your investment. Do not trust its safekeeping to a tenant. You want to ensure that the situation is handled promptly and professionally. You can deal with who should responsible for the cost of eradication after the bed bugs have been killed.

We will be seeing more and more bed bug litigation in the future. The plaintiff's lawyer in Baltimore --- who hilariously is known as "Maryland's bedbug barrister" -- was quoted as saying that he has been contacted by more than 200 people in the last couple of years regarding handling their bed bug lawsuits and that he currently has 18 bed bug lawsuits pending.

For Those of You Who Thought The Installation of A Smoke Detector Was Simple . . . READ THIS.

AASEW Board member Tim Ballering wrote the City of Milwaukee Department of Neighborhood Services (DNS) back in June to ask for clarification about the proper placement of smoke detectors in his residential rental units in the city of Milwaukee.

Ballering was prompted to write to DNS becasue he felt there was some confusion among DNS inspectors as to where smoke detectors should be installed.

Below is the entire text of Ballering's email to DNS:

> Subject: Smoke Detectors

> There is some confusion among DNS inspectors as to where smoke detectors belong.

> Most code enforcement inspectors are of the opinion the detectors should be outside the bedroom, within 6' of the door. Some are of the opinion that having the detector only on the inside of the bedroom does not meet code.

> Your code seems to be worded in a way that supports installing detectors outside the door at 214-27: "For floor levels containing a sleeping area, the required detector or alarm shall be installed within 6 feet of the sleeping area."

> However construction inspectors believe the smoke detectors are required to be inside the bedrooms and units installed outside the bedroom door do not meet the code.

> The DNS Smoke Alarm brochure seems to say either is okay:

> "Either in each sleeping area of each unit or elsewhere in the unit within 6 feet of each sleeping area. If the unit contains 2 or more separate sleeping areas, each sleeping area shall be provided with a smoke alarm."

> It obviously doesn't matter to the property owner where the detectors are put as long as a second inspector doesn't come along afterwards demanding they be relocated.

> So which does the code require, inside the bedroom or outside?

> And if the code doesn't care, then which is most effective in saving lives?

> I will have the Association publish the response so more owners are knowledgable as to what you require.

> Thanks

> Tim Ballering

The City of Milwaukee emailed its 8 PAGE response to Ballering on October 21, 2011. Here is the letter response from DNS.

While I know your time is valuable --- I beg you to read the entire 8 page answer. I want to see if you can finish reading it all the way through. Afterwards, I would like to know if you are able to tell me where you should place the smoke detectors in your City of Milwaukee rentals. I like to think that I am moderately intelligent person ---- and I read and review statutes, case law, and ordinances several times a week as a lawyer ---- but after reading this 8 page response my eyes glazed over and my brain went to mush.

The drafter's of these codes, ordinances, statutes, regulations etc. need to realize that if they want landlords -- or anyone, for that matter -- to understand them and be in compliance, they need to make it a bit more simple to understand and follow. One should not be required to be a brain surgeon to know where to install a smoke detector and you shouldn't have to synthesize 4 different laws in order to arrive at an answer -- thank you Todd Weiler for doing that for us. It is a relatively simple question: where should I install a smoke detector in my rental property to best protect my tenants. It shouldn't take 8 pages and many hours -- which I am sure Weiler had to spend compiling the answer -- to answer.

But don't fret, you probably will never have to re-read that 8 page answer again. Instead just turn to the city's recently revised brochure on smoke detectors. Sometime during my reading of the brochure, my eyes regained focus, my grey matter firmed up a bit, and I felt as if I actually knew where to install smoke detectors in my rentals again. Thank God for brochures : ).

Don't Miss the 2nd Annual East Side Landlord Think Small Conference on Wednesday November 9, 2011

I will be the featured speaker at the upcoming East Side Landlord Think Small Conference on Wednesday, November 9, 2011 from 3 pm - 6:30 pm at UW-Milwaukee, Chapman Hall located at 2310 E. Hartford Avenue, in the Regent's Room on the 2nd floor.

This conference is FREE to any and all interested landlords, with a special focus on Milwaukee's East Side landlords.

This conference is composed of 3 componants:

1. Featured Speaker - I will be speaking on the issues of "Causes for Eviction and Termination of Tenancy" and "Notices Terminating Tenancy." You will learn about the 4 basic notices that can be served on a residential tenant in Wisconsin (5 day, 14 day, 28 day and 30 day notices) and when you should be using each notice and why. While no one wants to have to evict a tenant . . . sometimes it is necessary. At the very least, landlords need to become comfortable with the various notice that can be served on a tenant when a tenant breaches his/her rental agreement or the landlord wants to terminate the tenant's tenancy. I will also discuss the proper way to serve a tenant with one of these notices. I will be handing out a detailed 11 page outline on this topic that attendees can take home to refer to when needed in the future. Examples of properly drafted 5 day, 14 day, 28 day, and 30 day notices will also be distributed.

2. Round Table Discussion - This discussion will include a panel of UW-Milwaukee staff, City of Milwaukee staff, myself, and others and will focus on local topics and common problems that East Side landlords encounter.

3. Panel of Experts - The panel will be comprised of members of the Milwaukee Police Department, Campus Police Department, Department of Public Works, Department of Neighborhood Services, and UW-Milwaukee Department of Neighborhood Housing and who will field any questions that you may have.

There will also be time to network with other landlords.

If you are interested in attending please RSVP to Heather Harbach, UW-Milwaukee Neighborhood Relations Liason at (414) 229-4451 or harbach@uwm.edu. You can also register for the event by clicking here.

I hope to see everyone there!!

New Federal Bill Would Add Two New Protected Classes To Federal Fair Housing Act

On September 26, 2011 both chambers of the U.S. Congress introduced legislation that would extend housing discrimination laws to include protections based on sexual orientation and gender identity. The HOME (Housing Opportunities Made Equal) Act was introduced by Sen. John Kerry and others. The bill would amend the Fair Housing Act to prohibit housing discrimination and intimidation on the basis of sexual orientation and gender identity.

Wisconsin is one of 13 states and the District of Columbia that already outlaws housing discrimination on the basis of sexual orientation. However, currently only 8 states afford fair housing protection based on gender identity and Wisconsin is not one of those states.

New Bills Would Limit Tenant's Attorney's Fees When Suing Landlords

There are two new proposed laws that if passed would limit the amount of attorney’s fees that could be awarded to a tenant that has sued his/her landlord for violation of ATCP 134 to 3 times the amount of compensatory damages in Wisconsin. The proposed legislation (Special Session Assembly Bill 12 & Special Session Senate Bill 12) was introduced by the committee on Senate Organization and the Committee on Assembly Organization at the request of Governor Scott Walker, Senator Rich Zipperer (R) and

Representative Robin Voss (R).

Currently if a tenant sues his landlord for a violation of ATCP 134 – which typically is due to the landlord’s alleged improper withholding of the tenant’s security deposit – and prevails, the court must award the tenant double damages, the costs of the lawsuit, and the tenant’s reasonable attorney’s fees. In almost every instance, the tenant’s reasonable attorney’s fees are much larger than the compensatory damages awarded.

In the United States we follow what is referred to as the American Rule which states that a person pays for their own attorney’s fees regardless of the outcome of the lawsuit. This is very different from the English Rule, which is followed in England, which requires the losing party to pay for the prevailing party’s attorney’s fees in addition to their own.

Despite following the American Rule in the United States, there are certain situations in which a state or federal statute will allow for the shifting of one’s attorney’s fees to th other party. These statutes are referred to as fee shifting statutes. Sec. 100.20(5) of the Wisconsin Statutes is an example of a specific type of fee shifting statute, called the private Attorney General statute, which requires that a landlord that has been found to have violated ATCP 134, to pay his tenant two times the tenant’s compensatory damages and the tenant’s reasonable attorney’s fees.

It is argued that the private Attorney General statute, which is codified as sec. 100.20 (5), Wis. Stats., has many purposes, such as: (1) it encourages a tenant that is damaged financially by the acts of their landlord to file a lawsuit to enforce their rights even if the alleged damages are small, (2) it allows a tenant to enforce his own rights as well a well as the public’s rights, (3) it deters improper conduct by landlords, (4) it strengthen the bargaining power of a tenant, and (5) it provides a much needed backup for th State as there are too many violations for the Attorney General’s Office to enforce alone.

These new bills would limit a tenant’s attorney’s fees to 3 times the amount of the compensatory damages awarded in all cases in which only compensatory damages are awarded. If non-monetary relief is awarded in addition to compensatory damages (such as injunctive or declaratory relief, rescission or modification, or specific performance the court must “presume” that reasonable attorney’s fees do not exceed 3 times the amount of the compensatory damages awarded, however that presumption may b overcome after the court analyzes 13 factors which the bills will allow a court to consider when setting the amount of attorney’s fees.

Critics of the two new bills feel that if passed, they will essentially “gut” Wisconsin’s consumer protection laws. Their argument is that no attorney will be able to afford to tak a tenant’s smaller damage case due to the limitations of their fees. As a result, it is argued that tenants will no longer be able to challenge the improper behavior of the landlords and therefore” bad” landlords will be able to do whatever they want and get away with it.

UPDATE - 10-28-11 -- On Thursday, Oct. 27, 2011 the aforementioned bill was passed by the Senate 17-15 (on a party line vote). The bill was softened a bit to allow for atty. fees greater than 3 times damages to be awarded by a judge BUT the presumption would still be that three times damages is sufficient.

Revised Small Claims Summons Required To Be Used As of November 1, 2011

In a prior post I explained that the small claims jurisdictional limit was increased from $5,000 to $10,000 as of July 1, 2011. This change has necessitated a revision to the mandatory small claims summons form that is required to be used when filing an eviction, replevin, and collection actions under $10,000 (as well as arbitrations confirmations and personal injury claims less than $5,000).

So far, the Clerk of Courts has been accepting filings using the old mandatory summons (1 page form) as well as the revised mandatory summons (2 page form). However, as of November 1, 2011, they will only be accepting the new 2 page summons - SC-500. Remeber that in Milwaukee County you are required to use the Summons that is written in both English and Spanish. All mandatory small claims forms can be found here.

So if you still have some of the old forms available make sure you use them all up by October 31st.

Don't have your eviction delayed because you are using an outdated form!

Crime-Free Lease Bill On The Horizon

On September 12, 2011, on behalf of the AASEW, I traveled to Madison to meet with the Wisconsin Rental Housing Coalition, several legislators’ aides, and an attorney from the Legislative Reference Bureau to assist in the review of and drafting of a new piece of legislation that will greatly affect residential landlords.

Not yet a bill, this proposed legislation is referred to as LRB-2098/1 or informally as the “Crime-Free Lease bill.” Initiated by fellow landlord and South Milwaukee Police Officer Brian Fleming, this legislation if passed, will change current Wisconsin law to allow a landlord to terminate the tenancy of any tenant (even those under a lease for term) that engages in criminal activity in their rental unit or on the rental property. A new type of 5 day notice would be created under this legislation which would not allow the tenant the opportunity to cure the breach and stay. It would basically be a “1 strike” law similar to what is in place in federal Section 8 site-based housing.

Criminal activity under the proposed legislation would be defined as any act or behavior that is punishable in Wisconsin by a fine or period of imprisonment or that is a violation of a municipal ordinance.

If the tenant fails to vacate the unit after being served with this new 5 day notice, the landlord would still be required to prove the criminal activity in eviction court.

The impetus for this legislation was the National Crime Free Lease Addendum that has been adopted and used in many counties outside of Wisconsin. Under this initiative, a tenant agrees not to engage in criminal activity on the rental property -- or allow any of their guests to do the same -- and signs a contract with the landlord to that effect. If the tenant or the tenant's guests engage in the prohibited criminal activity, they agree to vacate the property upon notice by the landlord.

Current law in Wisconsin conflicts with the Crime Free Lease Addendum as tenants under a lease for a specific term, must be afforded the opportunity to correct the breach and remain a tenant the first time that they violate their lease -- even if that violation is a crime.

Sec 704.17(2)(b) of the Wisconsin Statutes, allows a tenant under a lease who engages in criminal activity, to remain a tenant as long as s/he ceases the criminal activity within 5 days of being served the notice of breach. Thus, a landlord can be stuck with a tenant that he knows engages in criminal behavior until that tenant commits a second crime and can be served with a 14 day notice (which does not afford the tenant the opportunity to "cure" the breach and remain a tenant).

This puts Wisconsin landlords in a very difficult position and opens them up to liability. It also prevents a landlord from protecting his/her other tenants from the tenant that is engaging in criminal activity.

Once the bill is officially introduced and has obtained co-sponsors I will let you know so that you can begin calling and writing your state representatives to encourage them to vote in favor of this very important legislation.

Milwaukee County Eviction Court Commissioner To Speak At Next AASEW Meeting on Oct. 17th

On Monday, October 17, 2011, Milwaukee County Eviction Court Commissioner Rosa Barillas will speak at the Apartment Association of Southeastern Wisconsin's general membership meeting.

The meeting will start at 7 pm and be held at the Best Western Midway Hotel located at 1005 S. Moorland Road in Brookfield, WI.

Commissioner Barillas will speak to the group about mistakes that she sees landlords make in eviction court and how they can avoid them. She will also be taking questions.

If you have never been to an AASEW meeting (or haven't been to one in awhile) please join me at our next meeting on October 17, 2011. You will not be sorry.

T

Update on Landlord Pre-Emption Bill

It has been awhile since I updated everyone on the pro-landlord legislation that is being addressed in Madison. Senate Bill 107 (SB 107) -- referred to as the Landlord Pre-Emption Bill -- has been passed by the Wisconsin Senate and is currently being reviewed by the House this term (AB 155).

You may recall that SB 107 prohibits any municipality from enacting any ordinance that limits a landlord from obtaining or using various types of information about a tenant or prospective tenant, such as household income, occupation, court records, rental history, and credit information, or limits how far back in time a prospective tenant's

credit information, conviction record, or previous housing may be considered.

The bill has received much opposition from local municipalities and their lobbyists, not for the substance of the bill, but rather for the fact that if passed, the law will

restrict a municipality’s ability to draft certain ordinances. Essentially the municipalities feel this to be a breach of their own sovereignty and an example of the state overstepping its bounds. Many feel that this is really just a Madison problem -- since it is the City of Madison that has enacted many of these restrictions on what information a landlord can consider when making a rental decision – and therefore should be dealt with at the city level.

Another group of critics believe that the bill discriminates against African-Americans. Four Dane County Board Supervisors, two Madison City Council members and one Madison School Board member, sent a letter to Governor Walker and legislators on September 7, 2011, asking that the provision of the bill that will allow landlords to deny housing to tenants with criminal histories be removed because is discriminates against African Americans.

They argue that allowing a landlord to deny a rental applicant housing based on his/her criminal convictions will unfairly affect African-Americans because while they

only comprise 6% of the state’s population they account for almost 50% of those with arrest and conviction records. Thus the critics of the bill argue that to allow a landlord to deny a rental applicant based on his/her criminal record is to allow landlords to deny housing based on race.

The critics are relying on the doctrine of "disparate impact." The disparate impact doctrine holds that certain laws may be discriminatory and illegal – even if the law is neutral on its face -- if they have a disproportionate "adverse impact" on members of a minority group.

This disparate impact argument is ignoring a key ingredient – one’s choice to engage in criminal activity. One’s race is not something that a person has control over – we are born into a certain race. On the other hand, individuals do have control over whether or not they engage in criminal activity. Committing a crime is a volitional act. Being born African-American is not. We are dealing with apples and oranges here.

Disparate impact arguments are often raised when a law unintentionally affects a minority group through no fault of their own. This small group of critics, are trying to apply the disparate impact doctrine to individuals that made a voluntary decision to engage in criminal activity.

UPDATE - 10-28-11 -- On Wed. Octo 26, 2011, By a vote of 59-34 the Assembly voted to suspend a rulling on AB155. An amendment was made by Rep Chris Taylor (D-Madison) that would protect some local control within the bill - the amendment was tabled by a vote of 60-33.

Three Wisconsin Landlords Charged with Violating Fair Housing Laws

Three Wisconsin landlords have recently been charged with violating Fair Housing laws by the U.S. Department of Housing and Urban Development (HUD).

First, in late July, HUD announced that it charged a husband and wife who own a rental property in Brown County with violating the Fair Housing Act for allegedly creating

different rental requirements for a single mother and her son. The charge also alleges that the landlords’ lease agreement includes policies and rules restricting families with children.

Specifically, HUD’s complaint alleges that shortly after accepting a single mother’s rental application, the landlords added a new requirement that the single mother

promise to be present at home whenever her 17 year old son had visitors. The mother was unwilling to agree to this requirement and as a result the landlords refused to rent to her and her son. The landlord’s ended up renting the property to a family with no children. Additionally, it is alleged that the landlords' lease agreement included clauses that are unduly burdensome on families with children, including a provision that says "no children are allowed to play in common areas of the building" and imposes

a $100 fine and eviction for violating said policy.

Second, on September 9, 2011, HUD charged a West Salem female landlord for violating Fair Housing laws by refusing to rent to a single mother because she did not have a man "to shovel the snow" for her. The landlord eventually rented the property to two men.

The rental property at issue is a home on a cattle farm and is located in a hollow. The landlord told the investigators that the winters there are "brutal" and a single mother could not handle the seclusion and the snow removal. The landlord went on to comment that it was "just common sense" to deny the applicant and then asked the investigator if he would allow his daughter to live alone with a child, a mile and a half from neighbors. Further inserting her foot into her mouth, the

landlord told the investigator, "[i]f she thinks I discriminated against her, I absolutely did." The landlord continued to make matters worse by telling housing authorities that

she "never rents to single mothers, especially in the country," and had no plans to change. She added that "single mothers are part of the country's financial problems" today.

This case should be a "slam dunk" for HUD. The landlord would've greatly benefited from the assistance of counsel – although based on her comments she probably would not have listened to an attorney’s advice. Anyone care to wager on the outcome of this? I am expecting a rather large fine to be imposed.

UPDATE 10-31-11 -- This ended up being a $15,000 mistake for the West Salem Landlord - who ended up settling the claim.

Third, on September 26, 2011, HUD announced that it charged a La Crosse landlord and property manager with violating anti-discrimination laws for refusing to rent to an

African-American couple because of their race. It is alleged that the owner and property manager refused to show available apartments to the black couple. Additionally, they told the couple and other black applicants, that no rental units were available, while just minutes later they told white applicants of the available rental units and encouraged them to apply. This behavior allegedly occurred over a period of 2 months. Both black and white "testers" were sent to the property and confirmed that the black

testers were told no rental units were available while the white testers were told of open units and encouraged to apply.

Every day I hear of more and more landlords and property managers being charged with violating both federal and state Fair Housing laws. I wish that more landlords would take the time to educate themselves on these laws. Read some of my earlier posts on Fair Housing issues here, here and here.

Landlords Should Treat Tenant Roommates As One Person To Better Understand Joint and Several Liability and Resolve Tenant Disputes

I receive many calls from landlords who have questions and concerns involving issues involving their tenant roommates. While the problems are often factually different the proper way to analyze the situation and arrive at a resolution to the problem, often depends on the same thing -- something called "joint and several liability."

Joint and several liability is a legal concept that, according to Black's Law Dictionary, is defined as "the liability of co-promisors of the same performance when each of them, individually, has the duty of fully performing the obligation. A liability is said to be joint and several when the creditor may demand payment or sue one or more of the parties to such liability separately, or all of them together at his option."

Confused yet? Let me try and explain joint and several liability more clearly than Mr. Black did.

Essentially joint and several liability means that each individual tenant is responsible for the full amount of the rent as well as any and all other obligations under the rental agreement.

I think it would be easier for landlords to comprehend the concept of joint and several liability if they would just think of and treat roommates as one person.

Here is an example:

A Landlord enters into a 12 month lease with Tenant A, Tenant B, and Tenant C. The monthly rent is $750. The security deposit is also $750.

The Landlord needs to remember that he has one lease with three tenants NOT three separate leases with one tenant. As such all three tenants are responsible for the full amount of rent. All three tenants are responsible for abiding by the rules and regulations. All three tenants are responsible for paying the security deposit. All three tenants are responsible for paying the full amount of any damages to the rental unit.

Instead of taking $250 from Tenant A, B, and C for rent (or the security deposit), the landlord should insist that rent be paid via one payment for the full amount. When landlords accept $250 from each tenant, the landlord is inadvertently telling the three tenants that each of them is only responsible for 1/3 of the rent -- that is wrong. Remember treat the roommates as one person - one person pays his entire rent not 1/3 of it.

I know many of you that have tenant roommates are thinking that there is nothing wrong with accepting three separate checks for $250 from your three tenants. You are correct, nothing is wrong, there is nothing wrong with doing that . . . AS LONG AS ALL OF THE TENANTS PAY RENT ALL OF THE TIME. But problems arise is when one tenant falls on hard times and doesn't have the money to pay rent. It is at this point that the other two tenants start telling the landlord, "well we paid my portion of the rent so you can't evict us." WRONG.

Once again, think of roommates as one person. When you have one tenant (no roommates), that tenant is responsible for paying the entire amount of the rent - not just a portion of it. The same goes with roommates. One roommate is not just responsible for paying 1/3 of the rent. Under joint and several liability, that one tenant roommate is responsible for paying all of the rent if the other tenants don't pay any rent. If Tenant A and Tenant B have no money to pay rent, then Tenant C better rise to the occasion and pay the full rent amount or else all three roommates can be evicted.

Tenant roommates do not understand the concept of joint and several liability. I believe it is in the landlord's best interest to take the time to teach his tenant roommates about joint and several liability and how it specifically applies to them and their roommate situation. The best way to do demonstrate joint and several liability to your tenant roommates, after you have had the discussion with them, is to make them write one check for rent. I tell my roommate tenants that they must pay rent with one check. I don't care who pays it but I will only accept one check for the full amount of rent. The tenants can fight amongst themselves as to how they divide up the rent amount or who owes what to whom. How they do that should not be the landlord's concern. The landlord wants to impress upon his tenant roommates that he expects the full amount of rent each month and if they do that then they can remain as tenants. If not, then they will be evicted.

So while it may seem a bit much to refuse to take more than one rent check from tenant roommates, I believe by making the tenants understand that they are not responsible for just a "portion" of the rent, a landlord can avoid a lot of problems in the future.

Let's turn our focus to tenant roommates and the security deposit. If a landlord makes the mistake of accepting $250 from each of his three tenant roommates to apply to the $750 total security deposit, I believe that the landlord is sending his new tenants the wrong message again. Whether he is aware of it or not, the landlord has unintentionally informed his tenants that each of them are only responsible for 1/3 of the security deposit and therefore only responsible for 1/3 of any damage to the unit.

How many times have you heard one tenant say that the hole in the wall was caused by the other roommate who came home drunk one night and put his fist through the drywall? And then the next comment out of that tenant's mouth was, "so you should take the cost to repair that wall out of his portion of the security deposit."

Each tenant is jointly and severally liable for paying the total amount of the security deposit and for the total amount of any damage caused to a rental property regardless of which tenant caused the damage. A tenant roommate is not just responsible for "his portion" of any damage. Under joint and several liability, if the cost to repair the wall is $500 then the landlord can keep $500 of the security deposit and the three roommates can fight over how to split up the remaining $250.

What if your tenant roommates cause major damage to the rental unit that goes well beyond the security deposit on hand. Let's say the damages total $5,000. Under the concept of joint and several liability, a landlord can choose to sue all three of the tenants for the $5,000 or the landlord can choose to sue only two of them for the $5,000 (the two that are gainfully employed, for example) or the landlord could even opt to sue just one of the three roommates for the entire $5,000.

Assuming the landlord could prove his damages and meet his burden of proof, the court could rightfully enter a judgment of $5,000 against only Tenant A, if that is the only tenant that the landlord sued. This is true even if it was Tenant C that caused the actual damage. The landlord could then pursue and collect the entire $5,000 from Tenant A. It would then be up to Tenant A to sue either Tenant B or Tenant C, or both, if he so chooses.

Please note that joint and several liability does not allow a landlord to obtain a double or triple "windfall." A landlord can't sue each tenant individually for the full $5,000 and end up with three judgments totaling $15,000. This is why the most practical course of action is typically for the landlord to sue all three tenants for the entire $5,000 and then decide which tenant is more "collectible" (and often more responsible) and pursue the collection of the judgment against only that one tenant.

Now, let's assume there is no damage to the rental unit after the three tenants move out and therefore the entire security deposit will end up being returned. How is the landlord to return the security deposit? Under Wisconsin law, specifically Wisconsin Administrative Code, ATCP 134.06(2)(d), a landlord is required to refund the entire security deposit in one "check, draft or money order made payable to all tenants who are parties to the rental agreement unless the tenants designate a payee in writing." So under ATCP 134.06(2)(d), a landlord is required to treat the tenant roommates as one person - by sending them one check made payable to all three of them. If a landlord ended up writing three separate checks to each of the tenants for 1/3 of the security deposit each, that landlord would be violating Wisconsin law.

So, if a landlord treats his tenant roommate as one person, he will not only be adhering to the concept of joint and several liability, he will make his life as a landlord more simple. Landlords should not have to get involved in trying to determine which roommate did or didn't pay "his portion of the rent" nor should a landlord be concerned with which roommate punched a hole in the drywall during a drunken rampage. It is not our job as landlords to be social workers and resolve disputes amongst roommates. Nor is it our job to be the judge or jury and determine which roommate was at fault. Fortunately, the concept of joint and several liability allows a landlord the ability to avoid all of that unnecessary drama.

NOTE: If the rental agreement you are currently using does not indicate that all tenants are "jointly and severally liability" for all obligations under the rental agreement, then it is not a well-written rental agreement and is not worth the paper that it is written on. If that is the case, you should tear it up at the first possible legal opportunity -- i.e. once the term ends if it is a lease or with 28 day's notice if it is a month to month tenancy. You should then purchase and start using a rental agreement that states that all tenants are jointly and severally liable. I hear that the Rental Agreement sold at Wisconsin Legal Blank Company, Inc. is a very good one -- someone told me that the author of it is pretty knowledgeable about Landlord-Tenant Law.

FREE Landlord-Tenant Law Seminar - September 24th, 2011

I wanted to let you know about a FREE landlord-tenant law seminar that I will be presenting for the City of Milwaukee on Saturday, September 24, 2011.

The seminar will start at 9am and run through 11:30 am or so. It will be held at the Anderson Building which is located at 4001 S. 6^th Street – 3^rd floor in Milwaukee.

I will be covering three main topics:

1. Causes for Eviction (including the 5 day, 14 day, 28 day and 30 day notice and under what circumstances you can serve each one)
2. Notices Terminating Tenancy (how to draft them properly and how to serve them legally)
3. The Judicial Eviction Process (everything you need to know about how to draft and file an eviction lawsuit and what you will need to present to the court to

   prove your eviction as well as your collection of past-due rent, damages,

   holdover damages etc.)

If you are interested in attending this seminar pre-registration is required so you will need to contact Jeanne Hagner at (414)286-2954 or jhagne@milwaukee.gov

It is necessary that you register so that we can insure that there will be enough outlines and handouts for everyone.

I hope to see many of you there.

Petrie & Stocking Unveils New Labor & Employment Law Blog entitled "Talking Workplace Law"

Petrie & Stocking's Labor and Employment team, comprised of Attorneys Roger Pettit, Dave McClurg and Lindsey King, have unveiled a new labor and employment law blog titled "Talking Workplace Law." The blog went live on August 28, 2011.

The goal of the blog is to provide cutting edge perspectives on management issues and litigation risks for Human Resource professionals and business owners and others in the Labor and Employment industry.

The blog already contains several interesting posts on issues such how Wisconsin's new carry concealed weapons law will affect employers, terminating employees based on comments on their Facebook pages, and confidentiality agreements (and Tiger's mistress).

I hope that everyone will check it out and consider subscribing to its free email notification service.

AASEW's 2011 Landlord Tradeshow To Be Held September 28th at Serb Hall

The Apartment Association of Southeastern Wisconsin’s (AASEW) Annual Rental Property/Real Estate Professionals Tradeshow on September 28th,

at Serb Hall in Milwaukee! Our exhibit hall will be open from 12:00 p.m. until 5:00 p.m. check out the latest in products and services

for the rental property industry!

Our seminars will run from 12:00 p.m. until 6:00 p.m. Seminars include:

- Bedbug Litigation for Landlords, presented by Attorney Tristan R. Pettit

- Organize your Year End Financials, presented by Tim Nolan, CPA, Nolan Accounting

- Project Impact, presented by Milwaukee Alderman Bob Donovan

- Quickbooks Introduction for Landlords, presented by Kelli Belt, CPA, Maynard and Belt

- Buying and Selling Rental Property for Investors, presented by Brian Meidam, Co-Founder LocalREI Coach/Plan B Homebuyers and Andrew Kaplan, Principal of Kapital Real Estate

- Top Ten Mistakes Landlord Make and How to Avoid Them, presented by John Fischer, AKA Dr. Rent

And many more seminars and workshops this year, you don't want to miss it!

Admission is FREE, Seminars are FREE, Exhibit Hall is FREE, Appetizers are FREE.

Great opportunity to network with others in the rental property FREE, all with a donation of 4 non-perishable food items or a donation to Second Harvest/Feeding America!!! Last year we raised over 600 pounds of food, this year our goal is 1000 pounds to help our community!

Click here for the registration form!