JUST ANNOUNCED: AASEW's Next Landlord Boot Camp - Saturday, March 8, 2014

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.

The Apartment Association of Southeastern Wisconsin's 9th “Landlord Boot Camp" can help you navigate these treacherous waters and learn how to run your properties with greater profit and less hassles.

Who: Taught by Attorney Tristan Pettit, who drafts the landlord tenant forms for Wisconsin Legal Blank

When: March 8th, 2014 Saturday 8:30 AM – 5:30 PM Registration opens at 7:00 AM

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

Included: 100 plus page manual to help you put what you learn into practice.

Price: Members $159. Non-Members $249

Specials: Not a member? Pay just $1 more than the non member price and receive both the Boot Camp and an AASEW membership for the remainer of 2014 including member discounts at Home Depot, Sherwin Williams and more.

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

What you will learn at the Apartment Association's 2014 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, as amended in March 2012 by Act 143 and again in March 2013 with the passage of Act 76, including:

1. How to properly screen prospective tenants.
2. How to draft written screening criteria to assist you in the selection process.
3. How to comply with both federal and state Fair Housing laws including how to comply 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).
16. An ample question and answer period. This alone is worth the admission. . . . and much more.

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. So call early to reserve your spot.

The easiest way to register is to do so online at www.LandlordBootCamp2014.com or you can call the Association at (414) 276-7378 or email them membership@apartmentassoc.org today to reserve your spot.

Hope to see many of you there.

T

ACT 76 - Wisconsin's New Landlord-Tenant Law - Part 3: Speeding Up the Eviction Process

Several of the provisions of Wisconsin's New Landlord-Tenant law, Act 76 (SB 179), were created or amended to speed up the eviction process. Evictions are supposed to be summary proceedings and per the Wisconsin Supreme Court (Scalzo v. Anderson, 87 Wis. 2d 834 (1979)) there are very limited number of issues permissible in an evictions action. Nonetheless, tenants were finding ways to delay the process. Hopefully Act 76 will resolve much of that delay.

First, Act 76, amends sec. 799.12, Wis. Stats. to allow circuit courts in the various counties to decide via local rule whether or not to allow service of an eviction summons via certified mail. Current law does not allow service of an eviciton by mail and requires that an eviction summons be served personally, or after reasonable diligence has been made, via substituted service or posting and mailing.

If a county allows service via mail, then the clerk shall mail a copy of the eviction summons to each defendant at their last known address. Service of the summons will be considered completed when mailed, unless the envelope enclosing the summons has been returned unopened to the clerk prior to the court date.

I personally think that service of an eviction summons via mail will cause logistical problems. I can tell you right now that Milwaukee and Dane counties certainly will not agree to service by mail in eviction actions but possibly it will work in smaller counties.

Second, Act 76 amends sec. 799.05(3)(b), Wis. Stats. and states that the return date (initial appearance) in court can be no less than 5 days and no more than 25 days after service is issued (i.e. the tenant is served with the eviction summons). Current law requires the return date be held no less than 5 days and no more than 30 days after service.

It will be important that landlords make sure that their process servers are aware of this law change starting March 1, 2014 otherwise it could result in their evictions being dismissed if the return date/initial appearance is scheduled more than 25 days after service is effectuated.

Third, sec. 799.206 and sec. 799.20(4), Wis. Stats, have been amended to require that all contested hearings in small claims actions (evictions, garnishments, replevins etc.) must be scheduled within 30 days of the return date/initial appearance.

Even more important to landlords is that all residential evictions trials on the first cause of action (i.e. return of the premises) must be held and completed within 30 days of the return date/initial appearance. This law new law applies to both trials to the court and jury trials.

I personally feel that this change is the most important part of Act 76 in terms of speeding up the eviciton process. While many evictions are not contested and the landlord obtains a default judgment, those that are contested can take a long time to get to trial. Many tenants and their advocates have been requesting jury trials on eviction matters. By doing so - at least in Milwaukee county - these cases are rotated to a large claims judge handling civil matters (as the small claims judge does not handle jury trials) and result in a lengthy delay. In some of my contested eviction cases, it was taking 2 months to even get before the judge for a Scheduling Conference and the jury trial itself was not being scheduleded until 6 months after the return date.

While tenants are entitled to their day in court -- which includes a jury trial if they wish -- they should not be given a 6 month reprieve just by requesting a jury trial. During those 6 months the landlord often is not receiving any rent payments and/or the "good" tenants in the building are stuck putting up with the actions of the breaching tenant. In my opinion, requesting a jury trial in an eviction action is nothing more than a delay tactic. Tenants and their advocates have been successful in buying more time and in making the eviction process more expensive for the landlord by driving up his/her costs and fees. Of all the jury trials requested by tenants in eviction cases that I have been involved in (which number over 20 - most of which occurred this past year) not one of them actually went to trial. So I am very happy to this new law hopefully put a stop to this abuse of the system. Tenants will still get their trials but they can no longer stretch it out for months and months. How the courts will assimilatate these jury trials within the 30 day time limit will be the key issue moving forward.

If you missed my prior posts on Wisconsin's new landlord-tenant law you can click on the links below

Part 1 - Background and Overview

Part 2 - Restrictions on Local Ordinances

Governor Walker Signed 2013 Wisconsin Act 76 (SB 179) Into Law Today

2013 Wisconsin Act 76 (SB 179) was signed into law today, December 12, 2013, by Governor Scott Walker in his office at the Capital building.

Many people attended the signing, including myself. It was the first law signing that I have ever attended and was very intersting. I was able to get a photograph with the Governor, had him sign a copy of his new book (a Christmas gift for my mother) and even received a pen that was used to sign a portion of the new law.

I learned after the signing that the pens that are handed out to the attendees at a law signing are each used to sign at least some part of the new law. So for example one pen is used by the Governor for his signature. Another pen is used to write the "D" in the date "December". Another pen is used to write the "e" in "December" and so on and so on. It was humorous watching him pick up each pen and write something then put it down and pick up another pen, write something, put in down . . . and so on and so on.

So Act 76 (I'm so used to calling it SB 179 that it will take some time to get used to the new name) was enacted today (Dec. 12, 2013) and will be published tomorrow (Dec. 13, 2013). The law will become effective on March 1, 2014, except for the section on towing which will become effective on July 1, 2014.

Congratulations to everyone that worked on this new law! Here is a link to Act 76.

T

ACT 76 - Wisconsin's New Landlord-Tenant Law - Part 2: Restrictions on Local Ordinances

As I mentioned in Part 1, the soon to be new law contains new provisions as well as some corrective provisions (which will correct unintended consequences from last year's new law Act 143). In this blog post I will talk about one of the new provisions of the law which will restrict a local municipality from creating and/or enforcing certain local ordinances.

The new law will creates sec. 66.0104(2)(c) and (d), Wis. Stats., which says that a municipality may not enact or enforce an ordinance that:

a. Limits a residential tenant’s responsibility, or a residential landlord’s right to recover for damage, waste or neglect of the premises, or for any other costs, expenses, fees payments or damages for which tenant is responsible under law or under the rental agreement.

b. Requires a landlord to communicate to a tenant any information that is not required to be communicated under federal or state law.

i.e. City of Madison’s ordinance that requires landlords to distribute voter registration information to new tenants will not be enforceable under this new law.

c. That requires a landlord to communicate to a municipality any information regarding the landlord or tenant unless:

(1) Information is required under federal or state law.

(2) Information is required of all residential real estate owners (not just landlords!)

(3) Information will enable a person to contact the owner, or agent of the owner.

Note: This subsection does not apply to an ordinance that has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

So what will the net effect of this new provision of the law curtailing local municipalities from enacting and enforcing certain ordinances? According to one tenant advocate SB 179 will eliminate over 20 Madison ordinances. SB 179 should also eliminate Milwaukee’s Residential Rental Inspection (RRI) pilot project in the UW-M and Lindsay Heights neighborhoods.

It should be noted however that the new law will not eliminate "rental recording" in various municipalities as earlier versions of SB 179 had. Under the final version of the law, landlords will still have to provide their ownership and contact information to the municiaplity since doing so would fall under the above exception since the information will enable a person to contact the owner or agent of the owner.

To learn more on the background and overview of Wisconsin's new Landlord-Tenant Law read my prior post.

Governor Walker To Sign Wisconsin's New Landlord-Tenant Law Next Week

I have recently learned that Governor Scott Walker will be signing Senate Bill 179 into law next week Thursday, December 12, 2013 at 8 AM in the Governor's Conference Room in Madison.

Senate Bill 179 will be signed along with a group of other bills starting at 8 AM that morning.

Those of us involved in the drafting of this bill are happy to see all of the hard work come to a close.

What most people want to know is if the Governor signs the bill into law on December 12th, when will the new law become effective?

All but one section of the new law will become effective as of March 1, 2014 (the 3rd month after enactment). The section dealing with the towing of vehicles (sec. 349. Wis. Stats.) will become effective as of July 1, 2014 (the 7th month after enactiment) as the Department of Transportation will need to draft several regulations to flesh out the new towing laws.

ACT 76 - Wisconsin's New Landlord-Tenant Law - Part 1: Background and Overview

Senate Bill 179, which is commonly referred to as the "Landlord-Tenant Law Bill," is on its way to becoming law in the near future. For many of us it has been a long wait.

After initially being introduced in the Wisconsin Senante on May 8, 2013, the Senante concurred to some changes made to SB 179 by the Assembly on October 16, 2013. It is expected that Governor Walker will sign this bill into law prior to the end of the year.

The new law is 8 pages long and will make sweeping changes to Wisconsin's landlord-tenant laws as we currently know them. This new law will benefit landlords and "good" tenants. "Bad" tenants (i.e. those that don't pay rent on time, cause damage to the rental property, ignore the rights of their neighbors and fellow tenants etc. etc.) will not like this new law.

This new law was initially created to fix many of the unintended consequences from last year's Landlord's Omnibus law -- Act 143. Act 143 was unfortunately rushed through the legislative process in a little over a month. Rushed legislation is never good. As a result of the speed with which Act 143 was created, coupled with the fact that those of us that spend most of our days dealing with landlord-tenant issues were not consulted, there were some serious flaws in Act 143. SB 179 will repair those flaws.

Fortunately, SB 179 was not rushed like its predecessor. Work on SB 179 began even prior to Act 143 becoming law -- once the problems were recognized. Many of us involved in the process worked on SB 179 since April of 2013. SB 179 was officially introduced in the Senate on May 8, 2013, and as mentioned previosly, it was finalized in mid-October. So from start to finish it took approximately 6 months not including the time for the Governor to sign it.

I have been asked by many over the past few weeks, when will this new law become effective. Well, the answer to that depends in part on when the Governor signs it. SB 179 states that most componants of the new law will become effective on the 1st day of the 3rd month following its publication. So it would become effective February 1, 2014 or March 1, 2014 depending on when it is signed into law.

By my count, the new law repaired/corrected 6 sections of Act 143 and introduced or amended an additional 13 other sections that will affectlandlord-tenant law in Wisconsin.

In future blog posts during I will summarize and discuss all 19 componants of the new law.

Why I Am So Excited About This Saturday's AASEW Landlord Boot Camp

I am really excited about this Saturday's AASEW Landlord Boot Camp. Why you ask? Well let me tell you.

Just last week the Senate in Madison passed SB 179 which is a very large and sweeping revision to much of landlord-tenant law in Wisconsin. This bill not only cleans up the unintended consequences of last years Act 143, it also makes some major changes such as:

- Applies the new streamlined abandoned property law to evictions

- Allows the towing of vehicles on private property without the need for a citation to be issued first

- Prevents municipalities from requiring landlords to distribute information or report information to the government that is not required by state or federal law

- Allows non-lawyers to appear in court to represent their LLC's in eviction and other small claims actions

- It speeds up the eviction process - requiring the court to hear and complete an eviction trial within 20 days of the return date

- Allows property management companies or another agent of the owner to file evictions on behalf of their clients/owners

- Clears up the confusion regarding evicting a tenant that was involved in criminal activity

This bill has not yet been signed into law, but barring a veto from Governor Walker -- which is not anticipated -- it will become law very soon. SB 179 will help landlords and good law-abiding tenants alike.

So the reason I am so excited about this Saturday's Boot Camp is because it will be the 1st opportunity I have to teach landlords and property managers about the new changes.

SB 179 is a very comprehensive law. I just completed my outline this past weekend and boy there is a lot of information to cover.

If you are interested in learning about this new bill as well as the 7 other large topics that I will be teaching (including: the judicial eviction process, causes for eviction, security deposit issues, screening applicants, rental documents and much much more) at this Fall's Boot Camp -- please go to www.landlordbootcamp2013.com and sign up as there are still a few spots left!

I hope to see many of you there.

T

SB 179 ("Landlord-Tenant Bill") Is On It's Way To Governor Walker To Be Signed Into Law

At about 6:40 pm on October 16, 2013, SB 179 (commonly referred to as the Landlord-Tenant Bill) was concurred by the state Senate after a minor amendment was made in the state Assembly earlier. The bill passed 18-15 despite attempts to delay the bill via a motion to non-concur. The bill now goes to the Governor who has 30 days to "call" for the bill and sign it.

If you would like to watch the hearing you can do so by clicking here. The portion of the hearing dealing with SB 179 starts at approximately 2:58.

This bill which will hopefully become law -- absent a veto by the Governor -- will makes some major changes to Wisconsin Landlord Tenant law and the small claims eviction procedure. It also cleans up several of the unintended consequences of Act 143, which also dealt with landlord-tenant law, which became law back on March 31, 2012.

I will be devoting a segment of the AASEW's upcoming Landlord Boot Camp on October 26, 2013, to discussing SB 179 and its effect on the landlord-tenant landscape. For more information on the upcoming Boot Camp, including a summary of other topics that will be covered, prior attendees' testimonials, and how to register to attend, please go to www.LandlordBootCamp2013.com.

Assuming the Governor signs SB 179 into law, I will most likley be posting on this topic again in the near future and offerring my own analysis of the law, but for now I have reproduced for the Wisconsin Legislative Council's October 14, 2013 memo which summarizes current law in Wisconsin and then summarizes how SB 179 will affect/change current law.

This memorandum describes Senate Substitute Amendment 1 to 2013 Senate Bill 179, as amended by Senate Amendments 17 and 18, relating to landlord-tenant law, small claims actions, and towing of vehicles. In addition, this Memo describes Assembly Amendment 1 to 2013 Senate Bill 179, as passed by the Senate. The section numbers in brackets refer to the sections of Senate Bill 179 that are described under each heading, below.

RESTRICTIONS ON LOCAL ORDINANCES [Sections 1-4]

Under current law, a city, village, town, or county (municipality) is prohibited from enacting or enforcing certain ordinances relating to landlords and tenants, such as an ordinance imposing a moratorium on eviction actions or an ordinance that places certain limitations on what information a landlord may obtain and use concerning a prospective tenant. [ss. 66.0104 and 66.1010, Stats.]

Senate Bill 179 additionally prohibits a municipality from enacting or enforcing an ordinance that does any of the following:

• Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
• Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
• Requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.
• Requires a landlord to communicate to the municipality any information concerning the landlord unless the information is required under federal or state law or is required of all residential real property owners.

Senate Substitute Amendment 1 authorizes a municipality to enact or enforce an ordinance that requires a landlord to communicate to the municipality any information concerning the landlord ifthe information is solely information that will enable a person to contact the owner or, at the option of the owner, an agent of the owner.

Senate Amendment 17 to Senate Substitute Amendment 1 authorizes a municipality to enact or create an ordinance that requires a landlord to communicate information to tenants that is not required to be communicated to tenants under federal or state law if the ordinance has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

Assembly Amendment 1 to Senate Bill 179, as passed by the Senate (i.e., as amended by Senate Substitute Amendment 1 and Senate Amendments 17 and 18) modifies the provision described above that generally prohibits a municipality from enacting or enforcing an ordinance requiring a landlord to communicate to the municipality any information concerning the landlord, unless an exception applies. Assembly Amendment 1 provides that the general prohibition relates to communication to the municipality of any information concerning the landlord or a tenant, unless an exception applies.

NOTIFICATION TO A PROSPECTIVE TENANT OF BUILDING CODE OR HOUSING CODE VIOLATIONS [Section 11]

Under current law, if a landlord has actual knowledgeof any uncorrected building code or housing code violation in the dwelling unit or a common area that presents a significant threat to the prospective tenant’s health or safety, the landlord must disclose the violation to a prospective tenant before entering into a rental agreement or accepting any earnest money or security deposit. [s. 704.07 (2) (bm), Stats.]

Under Senate Bill 179, the landlord must disclose the types of violations described above only if he or she has received written notice of the violation from a local housing code enforcement agency.

Senate Substitute Amendment 1 deletes this provision from the bill.

COMMISSION OF CRIMES ON RENTAL PROPERTY [Section 18]

Under current law, if a lease contains any of a list of prohibited provisions, the lease is void and unenforceable. Among the prohibited provisions is a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime. [s. 704.44 (9), Stats.]

Senate Bill 179 repeals the provision of current law describe above.

Senate Substitute Amendment 1 replaces the current law provision described above with a provision that states that the lease is void and unenforceable if it contains a provision that allows the landlord to terminate a tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime. Victim is defined by reference to s. 950.02 (4), which generally provides that “victim” means a person against whom a crime has been committed, unless he or she is the person charged with or alleged to have committed the crime.

In addition, the substitute amendment requires a lease to include a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats. The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking. The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premises.

The substitute amendment also provides that a lease is void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for criminal activity in relation to the property and the lease does not include the notice regarding domestic abuse protections described above.

Senate Amendment 18 to Senate Substitute Amendment 1 modifies the language required under the notice of domestic abuse protections. Under Senate Amendment 18, the notice provides that a tenant has a defense to an eviction action under the circumstances provided in s. 106.50 (5m) (dm), Stats., instead of providing that a tenant may be able to stop an eviction action under such circumstances.

TERMINATION OF TENANCY IN MOBILE OR MANUFACTURED HOME COMMUNITIES FOR THREAT OF SERIOUS HARM [No provision in Bill]

Under current law, a landlord may terminate the tenancy of a tenant if the tenant commits one or more acts, including verbal threats, that cause another tenant, or a child of that other tenant, who occupies a dwelling unit in the same single-family rental unit, multi-unit dwelling, or apartment complex as the offending tenant, to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises. [s. 704.16 (3), Stats.]

Senate Substitute Amendment 1 authorizes a landlord to terminate the tenancy of the tenant of a mobile or manufactured home community who threatens another tenant, or child of another tenant, of the mobile or manufactured home community under the same circumstances, described above.

TIMING OF RETURN OF SECURITY DEPOSIT [Section 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first. [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, if a tenant is evicted, the landlord must return the security deposit to the tenant within 21 days after the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant's rental agreement terminates, the date on which the new tenant’s tenancy begins.

Senate Substitute Amendment 1 provides that the timing of the return of the security deposit depends on whether the tenant is evicted before or after the termination date of the lease. If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins. If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction.

SERVICE OF SUMMONS IN EVICTION ACTION [Section 22]

Under current law, under most circumstances, the summons in an eviction action must be personally served upon the defendant (the tenant), unless this cannot be achieved with “reasonable diligence.” In this case, the summons may be served by leaving a copy of the summons at the defendant’s usual place of abode in the presence of either: (1) a competent member of the family who is at least 14 years old; or (2) a competent adult who resides in the abode of the defendant. The person serving the summons must inform the family member or other person of the contents of the summons. [s. 801.11 (1) (b), Stats.]

Under Senate Bill 179, a court may, by rule, authorize the summons in an eviction to be served by regular mail.

Senate Substitute Amendment 1 provides that use of certified mail shall be required for all eviction cases for which service by mail is authorized by a court.

TIMING OF APPEARANCE AND TRIAL IN EVICTION ACTIONS [Sections 20, 23 and 24]

Under current law, the summons in an eviction action specifies the date that the defendant must appear in court. That appearance date must be set at not less than five days or more than 30 days after the summons is issued. [s. 799.05 (3) (b), Stats.] Also, the court generally sets the matter for a trial or hearing when the tenant makes the initial appearance. Current law does not specify the required timing of the trial or hearing. [s. 799.20 (4) and 799.206 (3), Stats.]

Senate Bill 179 changes the appearance date to not less than five days or more than 14 days after the summons is issued. The bill also specifies that the trial or hearing must be scheduled within 20 days after the date of appearance.

Senate Substitute Amendment 1 changes the appearance date to not less than five days or more than 25 days after the summons is issued. The substitute amendment also specifies that a trial or hearing on the issue of possession of the premises involved in the action must be held and completed within 30 days after the date of appearance, and provides that this provision applies only to residential tenancies.

WHO MAY APPEAR IN SMALL CLAIMS ACTIONS [Section 21]

Under current law, in any small claims action, a person may commence and prosecute or defend an action or proceeding himself or herself, or by an attorney or a full-time authorized employee of the person. [s. 799.06 (2), Stats.]

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent. This provision applies to all small claims actions, not only evictions.

Senate Substitute Amendment 1 clarifies that “member”means a member as defined in s. 183.0102 (15), Stats.:

“Member” means a person who has been admitted to membership in a limited liability company as provided in s. 183.0801 and who has not dissociated from the limited liability company.

DISPOSITION OF PROPERTY LEFT ON RENTAL PREMISES AFTER EVICTION [Sections 9, 10 and 29-46]

Under current law, if a tenant leaves property of value on the rental premises after he or she has been evicted, the property must be removed and stored. The evicted tenant is notified of the location of the property and provided with the receipt needed to obtain possession of the property. The evicted tenant is responsible for the costs of storage. In Milwaukee County, the sheriff must remove and store the property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property. If the landlord does not choose to remove and store the property, the sheriff must do so. [s. 799.45 (3), Stats.]

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise. If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement, or at any other time before the tenant is evicted from the premises. If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Senate Substitute Amendment 1 deletes the bill provision that authorizes a landlord to provide the notice described “at any time before the tenant is evicted,” and provides that any notice that is provided must be provided either when the tenant enters into or renews the rental agreement.

TOWING OF VEHICLES [Sections 5-8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued. If the vehicle is taken by a towing service to any location other than a public highway within one mile from the location in which the vehicle was improperly parked, the municipality or the traffic or police officer must, within 24 hours, provide the towing service with the name and last-known address of the registered owner and all lienholders of record. [s. 349.19 (3m) and (5) (c), Stats.]

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued. “Properly posted” means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately removed. The vehicle may be removed by a towing service at the request of the property owner or property owner’s agent, a traffic officer, or a parking enforcer. A parking enforcer is a person who enforces nonmoving traffic violations and who is employed by a municipality, a county, or the state. Also, the bill requires the Department of Transportation (DOT) to promulgate rules establishing reasonable charges for removal and storage of vehicles under the provisions described above.

Under Senate Substitute Amendment 1, if a property owner has a vehicle towed under the provisions described above, the towing service must notify a local law enforcement agency of the make, model, and license plate of the vehicle and the location to which the vehicle will be towed. The law enforcement agency is required to maintain a record of the notice as well as the identification of the towing service. Also, the substitute amendment prohibits a towing service from removing a vehicle that has been reported to a law enforcement agency as stolen.

In addition, under the substitute amendment, if requested by the municipality in which the vehicle was illegally parked, the towing service must charge the vehicle owner a service fee not to exceed $35. The towing service must then remit the service fee to the municipality according to procedures specified in the statute.

The substitute amendment provides that the rules promulgated by DOT must establish the form, and manner of display, of the notice necessary to qualify as “properly posted” under the provisions described above, as well as guidelines for towing services to notify law enforcement of the removal of a vehicle.

AASEW's Landlord Boot Camp On October 26th To Address New Landlord Tenant Law Soon To Be Passed

Be the first on your block to learn about the new Landlord-Tenant law which is expected to be passed later this month!

The AASEW's popular Landlord Boot Camp will address the ins and outs of the new law (currently referred to as Senate Bill 179) on Saturday, October 26, 2013 from 8:30 am - 5:30 pm at the Clarion Hotel located near the airport. You will not want to miss this seminar.

Besides teching you about the new law, Attorney Tristan Pettit will also address numerous other of topics that will help you navigate Wisconsin's complex landlord - tenant laws. Learn how to run your properties with greater profit while staying out of trouble. 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.

Some of the other topics that will be covered include:

1) How to properly screen prospective tenants

2) How to draft written screening criteria to assist you in the tenant selection process

3) How to comply with both federal and state Fair Housing laws including how to comply 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 or judge from dismissing your eviction lawsuit

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)

There will also be time for "Q&A" and Lunch is included!

If that is not enough you will also receive a manual that is over 100 pages that includes all of Tristan's outlines on the various topics and various forms.

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

When: Saturday, October 26, 2013 from 8:30 AM – 5:30 PM ---- Registration opens at 7:00 AM

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

Price: AASEW Members only $159 . Non AASEW Members - $249 Sorry, no registrations accepted after 5 PM on October 23rd, 2013

Register: Go to www.LandlordBootCamp2013.com and you can register online and read prior attendees testimonials.

I hope to see everyone there.

T

GUEST POST: The New and Improved Apartment Association of Southeastern Wisconsin

For the past two and a half decades or so, I put a lot into the Apartment Association. I remain a board member and avid supporter of the organization.

We did some good and prevented some bad during my tenure on the board. We've had very impressive leaders before and after my presidency such as Dave Domres , Attorney John Savage and Attorney Tristan Pettit. We've also had some of the brightest minds working behind the scenes to make things happen, such as Jeff Chitko, Bill Lauer and Attorney Heiner Giese. Countless others did a lot for the Association and industry such as Jim Dropp, Joe McLean, Bob Jovanovich, Dave Ohrmundt, Richard Bishop, Kim Queen and many, many more. The list of achievers is truly too long to list here.

This crowded slate of superstars really makes standing out difficult for even the best.

Then along comes our latest president, Joe Dahl and I am in awe. The guy has been AASEW president for 10 months now. In that short time he has accomplished the near impossible.

During the housing downturn Home Depot cut back on Pro reps and dropped their AASEW membership. I tried for a couple of years to get them to return as a sponsoring member. No dice. Not only did Joe get Home Depot to rejoin, but in the process secured a 20% discount on paint and a 2% rebate on everything else for our members. Then he went on to get member discounts* from Sherwin Williams, Wisconsin Legal Blank, Pittsburgh Paint and many more vendors we use everyday. The rebates more than pay for most member's dues. To stay competitive in this industry you will almost have to be a member.

We had a couple of good trade shows when Carmen produced them, but let's be truthful, the last few year's shows were dogs. This year Joe enlisted the help of Shari from Sid Grinker, who along with Bill from ABC Sewer made this an outstanding event for both the industry and the vendors. The place was packed. When you see either of them give them a big thanks.

Joe convinced some outstanding people to join the board such as Jon Krause, formerly of OnMilwaukee.com, Steve Johnson and Aaron Moseer. These guys are young and sharp. (young of course being relative)

Our general membership meeting this year were often at capacity. This was due to good marketing and strong subject matter.

Although not an Association event, Joe personally put on a very successful and impressive fundraiser for Senator Lasee who has been a friend of real estate and housing. Something like 60 influential people from the rental industry attended. I'm sure the Senator was pleased.

This kid -- and I can call him a kid because he is a couple of years younger than my oldest son -- is sharp and willing to do the work. Joe holds an MBA, while at that point in my life all I held was a hammer and a paint brush. ;-) So far the only bad thing I can say about Joe is sometimes he swears enough to make a sailor blush, but he promises me he is working on that.

If you were a member, but no longer are, or if you never were a member, you should check out what the organization is becoming under Joe's leadership. If you are a member you should take advantage of the discounts* and throw your support behind Joe and his team. If you are a larger owner that is not in the Milwaukee area it may make sense for you to join just for the discounts. You can learn more about the AASEW and regsiter online at www.apartmentassoc.org

The 1980's group Timbuk3 must of been thinking of us when they wrote "The future's so bright, I gotta wear shades" Bit of trivia - Timbuk3 was a Madison WI band.

Tim Ballering

Tim@ApartmentsMilwaukee.com

* November 18th general meeting, which is the board election, the Association will be presenting a guide to all of the discounts and how to use them to your best advantage. I believe this is a member only event, but will verify and post more later.

Don't Miss The Landlording Event of The Year - AASEW Trade Show on Friday, September 27th

Hello Everyone --- The event of the year -- the AASEW's Conference & Trade Show -- will be held in a little more than 1 week.

You will not want to miss this great event at its new location at Potawatomi Bingo Casino.

When: Friday, September 27, 2103 from 11 am - 4:30 pm (Doors open at 10 am)

Where: Potawatomi Bingo Casino, 1721 West Canal Street, Milwaukee, WI 53233

How Much? Free to all Landlords with pre-registration at www.apartmentassoc.org otherwise the cost will be $10 at the door.

Doors open at 10 to allow you time to meet with and learn about all of the great products and services of our vendors.

Complimentary food will be available throughout the day.

The first even will start at 11 am when we will be presenting an very special award to Wisconsin Senator Frank Lasee for all of his work and support in getting last year's Act 143 (Landlord Omnibus Law) passes and advancing Senate Bill 179 which will (hopefully) soon be law later this fall.

The award presentation will be followed by various seminars throughout the day. I will be presenting a seminar at 3:30 pm on "Legal Issues Pertaining to Bed Bugs and How Landlords Can Protect Themselves." The other seminars that will be offered are listed below.

• 11:15 - Social Media: Are you doing it right?
• 11:15 - Bed bugs in a multi-family environment
• 12:30 - I'm on Linked In, Now What?
• 12:30 - Making the Grade: Financing Your Investment Property
• 1:30 - Mold - Be Prepared, Not Afraid
• 1:30 - Working with Milwaukee's Dept of Neighborhood Services
• 2:30 - Rental Collectsion into the 21st Century
• 2:30 - Multi Family Energy Savings Program
• 3:30 - Milwaukee County Evictions
• 3:30 - Legal Issues Pertaining to Bed Bugs and How Landlords Can Protect Themselves

Following the seminars we will be having several raffle prizes including giving away an iPad -- you must be present to win.

GUEST POST: Is the Apartment Association of Southeastern Wisconsin Against the City of Milwaukee?

Is the Apartment Association against the City of Milwaukee?

After a recent meeting I received an email from an irate member who was offended by some of my commentary regarding the city of Milwaukee, it seemed the association had an anti-Milwaukee tone to its messages. Having committed much of my career to making Milwaukee, especially its central core, a better place to live I was initially surprised by the feedback, nonetheless it is a legitimate question and one deserving of a response.

First let me remind everyone that the association is an all-volunteer organization and we welcome the participation of all landlords (in fact we will be holding officer elections soon so please email me if you are interested). I would encourage anyone unhappy with something we are doing or saying to speak up and be heard. Write an article in the Owner, email me, or better yet join a committee or board of directors. We are an organization of almost 1000 members and the diversity of our perspectives and experiences is a strength we should draw from. That being said I will address this issue head on after first making the obligatory disclaimer that the thoughts expressed below are solely mine and in no way constitute an official position of the AASEW.

I am not against the City of Milwaukee, however I have significant concerns with its view towards residential property owners/investors. Having lived in the city my entire life I have witnessed first-hand the deterioration of many of our communities and the City’s inept response to address this crisis. A common refrain cited for this decline is absentee landlords who allow their properties to fall into disrepair and if only we could force them to be accountable our problems would be solved. While there is some truth to this it would be tantamount to saying our City’s larger decline is due solely to shifting macro-economic trends that decimated American manufacturing. While it is certainly part of the issue, a narrow focus on either cause over simplifies the problem at hand and leaves one ill equipped to develop effective solutions to address the problem.

Are absentee landlords who neglect their properties an issue in many communities? Absolutely but maintaining your property and being responsible to your neighbors should be a standard imposed on every property owner including owner occupied buildings. Focusing exclusively on landlords obfuscates the true nature of the problem and does nothing to solve it. This is a fundamental flaw in the thinking at city hall and has done as much to harm property values in the city as the financial crisis.

In my early 20’s I bought a house in Lindsay Heights that I did a first rate renovation on and was proud to call home. After years of battling with neighbors from hell, who were owner occupants, and receiving no succor from DNS, my alderman, or anyone else at city hall I rented out the property and moved to the suburbs. Ironically had this very property been subjected to the same standards of compliance as non-owner occupied properties in Lindsay Heights, I would probably still be living in the city of Milwaukee.

Further evidence of the City’s “tolerance” for landlords is their response to their growing portfolio of tax foreclosed properties. City hall has proposed a variety of creative solutions to deal with this problem including allowing tenants to use their Section 8 check to pay the mortgage the city would carry. Ironically very few of their solutions involve investors and established landlords within the city. Ponder this, our association alone as the wherewithal to buy every last city owned property and turn them back into productive assets, yet the city has not reached out to us once to have a serious conversation about how to make that happen.

It is clear to me as an investor that the city does not view our industry as a strategic partner in which to work hand and hand to deliver low cost, high quality housing to its residents. It is a position that has led to disastrous results in many of our neighborhoods; one can only hope they understand the definition of insanity: doing the same thing repeatedly yet expecting a different result.

In conclusion Joe Dahl loves the city of Milwaukee and will stand next to any person and compare my investment and efforts to make it a better place. However I am very troubled by our leadership and its “tolerance” of landlords. It is my desire to see Milwaukee thrive, yet I am not naïve enough to ignore what happened to our counterpart in Michigan. It is my sincere hope the city recognizes it needs all hands on deck to achieve the former and avoid the latter……and yes city hall that includes landlords!

Joe Dahl

President AASEW

AASEW MEETING: Eviction Court Essentials -- Monday, August 19, 2013

The AASEW's next meeting will be this coming Monday, August 19, 2013 at 7 pm at the Best Western in Brookkfield.

The Apartment Association of Southeastern WI welcomes Milwaukee County Circuit Court Commissioner Cedric Cornwall as our main speaker at our August meeting. With all of the recent law changes in the landlord-tenant law arena, Commissioner Cornwall will speak to the group on the preferred procedures to follow in eviction court along with some of the common mistakes that he and his colleagues observe landlords making in court. As always, there will be time for questions for the Commissioner as well.

This is a must attend event for every owner of rental property in Milwaukee County and beyond. All always this event is free to members and 25 dollars for guests.

When: Monday, August 19th, 2013 at 7:00 p.m.

Where: The Best Western, 1005 S. Moorland Road, Brookfield 53005

Who: Eviction Court Commissioner Cedric S. Cornwall

Cost: Free for current AASEW members, $25 for guests and expired members.

About our speaker:

Cedric S. Cornwall has lived in Milwaukee County for 30 years and practiced law here for 27 years. A graduate of Marquette University Law School, he currently serves as a Milwaukee County Judicial Court Commissioner, where he presides over hearings in Children's Court, Small Claims Court, Intake Court, Preliminary Hearing Court, and Traffic Court. Assigned to the Vel R. Phillips Juvenile Justice Center, he also conducts settlement conferences, delinquency hearings, and permanency plan review hearings.

Commissioner Cornwall previously served as a Manager for the City of Milwaukee Equal Rights Commission and in the Trial Division of the Office of the Wisconsin State Public Defender, and was a partner in the Law Offices of Cornwall, Rhiel, and Yahahiro and in the small private firm he founded in 1999, where he gained extensive trial experience in criminal, juvenile, traffic, and supervision revocation cases. Commissioner Cornwall lives in Wauwatosa with his wife, Andrea, and their two daughters.

GUEST POST: Four Rental Scam Prevention Strategies

Property scams are common on the web. Both landlords and tenants are susceptible to illegitimate listings and clients, so it is always important to proceed with caution. Use these four strtegies.

1. Check Sources

Make sure that the property in question is actually up for rent. Scammers will take advantage of vacant homes due to foreclosure and attempt to rent out properties that don’t belong to them. If the home is bank-owned, a renter can be served with a trespassing notice and be kicked out, even if they thought they had been paying rent. The first step a renter should take is completing a background search on the property and making sure that the person they are in communication with is the actual owner or agent.

2. Watch for Indicators

Never agree to complete a wire transfer in exchange for the keys to a property. Often times, a renter will provide the payment or deposit money and not receive keys in return. If renting out a property, be careful of those who claim to be any type of diplomat, military personnel, or the like. Usually that type of alias is used to earn a landlord’s trust. Finally, overseas renters, especially those who claim to be moving to the United States to work for well-known organizations, should be dealt with carefully. The renter may send in a cashier’s check that is more than the rent itself, so when the landlord sends back the overpaid funds, they find out that the original check was a fake and are out the difference.

3. Use Reputable Services

Refer to a trustworthy website like Zillow to find the perfect rental property or tenants. Landlords pay a subscription fee to weed out old listings and potential scam artists. Additionally, renters can sort a plethora of local data to help them decide which listing best fits their needs.

4. Proceed with Good Judgment

If there is a listing for a 4-bedroom home at only $500 per month in an affluent neighborhood, it is probably a scam. Usually con artists will list low rent prices to try and force the interested renter to put the property “on hold,” scaring them into paying up front. Often times, a credit card or social security number is requested in these types of scams, so never give personal information away no matter how great the deal looks. Be wary of those who insist on online-only communications and transactions.

Using these precautions will help renters and landlords avoid rental scams and potential monetary losses. Of course, always rely on a gut feeling. Even if the situation doesn’t fall into one of these categories, don’t proceed if it seems fishy. Use the internet to research individuals and form legitimate business relationships.

By: Tali Wee of Zillow.com

CCAP Is Under Attack Again

When Senator Marlin Schneider lost re-election a few years ago, I thought that the attacks against Wisconsin's Consolidated Court Automation Programs (CCAP) would disappear. Well they did -- for a while. But Senator Lena Taylor along with Representatives Goyke, Sargent, Kessler, Hebl and Pope haven taken up the torch and are trying to prevent the public from accessing CCAP once again via Senate Bill 234/Assembly Bill 253.

These two bills were introduced on July 31, 2013, and if passed will negatively affect access to "open records" in the following ways:

1. Two separate CCAP databases would be created. One for a privileged few and another with less information for the general public. The current CCAP database would only be available for judges, court commissioners, other court, state, local, agency employees, law enforcement and law enforcement employees, lawyers, journalists, licensed debt collectors, employees for financial institutions, and realtors --- and landlords (see below correction note). A second more restrictive database would be available for everyone else.

2. The more restrictive database accessible by the general public would only provide case information after a court has done one of the following: (1) made a finding that a person is guilty of a criminal charge, (2) made a finding that a person is liable in a civil matter, (3) ordered a judgement of eviction, or (4) issued a restraining order or injunction. If one of those 4 things did not yet happen --- the general public will not even be able to access that information.

3. All information related to a criminal or civil case in which a finding or order related to the case or charge is reopened, vacated, set aside, or overturned on appeal, would be removed from the more restrictive CCAP database.

4. If a user searches for a person's name on CCAP and then denies that person employment, housing, or another public accommodation, the user must inform the person that a CCAP search was performed on them. Failure to tell the person could result in a $1,000 fine.

5. Upon receipt of a written request, the Director of State Courts must remove from the general public database, any information relating to a case if there was no finding of criminal guilt or civil liability, order of eviction, or issuance of a restraining order, or if the finding or order was subsequently reopened, vacated, set aside, or overturned.

What does this mean to landlords and property managers? --------------- See correction note at end of post.

Short Answer: You will have a much more difficult time screening any prospective tenants. And as a result of being able to review only select information you may end up renting to someone that you otherwise would not have, resulting in increased costs to you such as eviction costs, damage to your property, lost rent.

Long Answer:

You will be unable to learn about any pending criminal cases, eviction cases, money judgment cases, restraining orders, that an applicant might have pending until the case is concluded and has resulted in a judgment or conviction.

So if the person that has applied to live in your rental property is currently charged with a drug crime, you will have no way of knowing that -- lucky you. Nor would you be aware that the reason an applicant is applying to rent your unit is because their current landlord is currently evicting them. You would also be unable to learn that an applicant is currently being sued by their landlord for damaging the rental property they just left. You also would be unable to learn that the applicant is being sued for not paying other bills. Essentially, you would lose access to information that would be very helpful in determining if this applicant would be a successful tenant with you.

If the applicant that wants to rent your property has been evicted in the past and a motion to reopen the judgment of eviction has been filed when you are evaluating the applicant's application --- that information would be off limits to you. If the applicant ever had an eviction judgment or money judgment case reopened and vacated -- regardless of the reason -- you also would not be able to learn that information. Believe it or not, some courts have been known to grant a motion to reopen/reconsider and vacate a judgment of eviction, solely because the tenant already vacated the unit at the time they filed to motion to reopen/reconsider. If this bill were to be signed into law, and that was to occur, you the landlord, would never even have the chance to learn that there was an eviction judgment against the applicant you are screening.

If you use CCAP as part of your screening process (is there any landlord in Wisconsin who doesn't?) you must advise the tenant (in writing to CYA) that you performed a CCAP search on them if you end up not renting to them. Failing to so so could end up costing you $1,000.

A person could write the Director of State Courts and ask them to remove any information on CCAP regarding any criminal case ever filed against them if it did not result in a conviction. So the individual that I represented 17 years ago when I was a young lawyer trying to decide is I wanted to be a criminal defense lawyer, who had been charged with 8 domestic violence -battery misdemeanor counts over the course of 3 years for beating his girlfriend --- never to be convicted of any of them because the victim was too scared to appear in court to testify --- would be able to remove any mention of being charged with those crimes. Do you think he would be a good tenant?

In the case of a civil matter -- such as an eviction or money judgment -- if there was no finding of liability or an eviction judgment entered than any reference to that case would be removed from CCAP, upon receipt of a request to do so by the person. So if the person applying to rent your unit has had prior evictions filed against them in which the landlord decided to not proceed because the tenant moved out before the court date, that information could be removed. Remember all those stipulated dismissals that you entered into with a tenant to vacate, so that you could avoid a trial? If this bill passes, none of those would show up in the general population CCAP database because they were dismissals.

I guess "public records" are really not so "public" after all. Hopefully this bill will not see the light of day and will die a quick death.

CORRECTION 08/05/13 ---- I received a t/c from Rep. Evan Goyke, one of the authors of the bill, and he pointed out that under his bill "landlords" would be able to access the full version of CCAP as they would be included in the group of "chosen few" who would still be able to access CCAP as we currently know it. See proposed sec. 758.20(3)(a)(8). I appreciate him calling me to point that out and I apologize for inadvertantly posting incorrect information about the bill

Attorney General States That A Tenant Can Be Required To Pay For Carpet Cleaning Upon Vacating

It is not often that I get to report good news for landlords, so when the opportunity arises I am especially happy to do so. Today is one of those times. Earlier today the Wisconsin Attorney General issued a formal legal opinion that states that it is legal for a residential landlord in Wisconsin to require an outgoing tenant to pay to have the carpet in the unit professionally cleaned and to include such a provision in the rental agreement.

It is well known that in Wisconsin a residential landlord cannot withhold the costs of having the carpet professionally cleaned from a tenant's security deposit. Wisconsin Administrative Code, ATCP 134.06(3)(c) states that landlords are prohibited from withholding from a security deposits for "normal wear and tear." The Note to this administrative code provision states that carpet cleaning is an example of an impermissible basis for withholding a tenant's security deposit.

What had been unclear until now, is whether or not a landlord could make a tenant pay for the cost to have the carpet professionally cleaned upon vacating and to include such a provision in the rental agreement. I have personally experienced both courts that held that a landlord could charge a tenant for professional carpet cleaning and others that would not. Additionally, some judges and court commissioners felt that including a provision in a residential rental agreement requiring a tenant to pay to have the carpeting professionally cleaned upon vacating renders the rental agreement void.

Wisconsin landlords are now on solid ground in knowing that they can require a tenant to pay to have the carpets professionally cleaned upon vacating and that they can include such a provision in their rental agreement.

The key questions and answers from the formal opinion are set forth below:

QUESTION 1: Based on current law, does routine carpet cleaning at the end of a tenancy fall within the landlord's duty to keep the premises "in a reasonable state of repair" as prescribed by Wis. Stats. sec. 704.07(2)?

ANSWER: No, a landlord's duty to keep the premises in a reasonable state of repair does not encompass routine carpet cleaning.

QUESTION 2: Would a provision requiring the tenant to pay for professional carpet cleaning, in the absence of negligence or improper use by the tenant, render a rental agreement void under Wis. Stats. sec. 704.44(8)?

ANSWER: No, because routine carpet cleaning is not a statutorily-imposed obligation of a landlord, assigning this responsibility to a tenant through a contractual provision does not render a rental agreement void.

In its analysis, the Attorney General states that the key issue upon which the answer hinged was whether or not routine carpet cleaning falls under one of the statutorily prescribed obligations of a landlord. If it does, then the law clearly would prevent a landlord from assigning that obligation to a tenant. If not, then a landlord could legally assign the obligation to have the carpets professionally cleaned to a tenant.

Under Wisconsin law a landlord is statutorily required to keep a rental unit in a "reasonable state of repair" and such repairs cannot be assigned to a tenant as a result. Routine carpet cleaning however is not considered to be a "repair" as a repair typically involves fixing something that is broken. A carpet that is dirty and needs to be cleaned is not in need of "repair."

The AG's analysis then points out that the landlord-tenant statutes do not assign cleaning responsibilities to either the landlord or the tenant. As such, the parties are free to assign the responsibilities for cleaning in the rental agreement. Which therefore means that a landlord can require a tenant to pay to have the carpets cleaned if it is in the rental agreement.

Please note however, that while the Attorney General's legal opinion does allow a landlord to charge a tenant for the costs of having the carpets professionally cleaned, it still does NOT allow a landlord to deduct those costs from the tenant's security deposit (even if you put such a clause in your Nonstandard Rental Provisions). So if the tenant doesn't pay for the carpet cleaning as agreed to in the rental agreement a landlord's only recourse will be to sue the ex-tenant for the costs.

AASEW Meeting: Learn the Ins & Outs of Low Income Tax Credit Financing on July 15th.

You look at conversions such as the knitting factory being turned into loft apartments on the near Southside and you wonder ‘How could they afford to do this, in this market?’

The answer is Low Income Tax Credit Financing. A brief overview is you design a project, go to the state (WHEDA) and apply for tax credits. If all goes well and you are approved, you receive federal income tax credits. There is a formula based on the amount you spend, the number of units that are reserved for occupants below the county median income and a bunch of other factors.

These credits will be far in excess of what a normal investor/developer can personally use. So they “syndicate” the tax credits to an investment group. The investors get income tax saving in exchange for the money you need to put the project together.

It is a very competitive application process. It is a very intense process. It is a fairly expensive process. If you are looking for an easy dollar, you are looking the wrong way. I speak from the experience of having tried and failed at obtaining tax credit financing to create accessible infill housing on the near north and near south sides of Milwaukee a bit over a decade ago.

But if you can break into this market you can do well, while doing good.

So it was a decade ago and I haven’t tried since, so why bring it up today? The July Apartment Association meeting features Keith Broadnax of Great Lakes Capital Fund, one of the tax credit financing investment groups. Years later I still find this was an intriguing opportunity.

- Tim Ballering, AASEW Board member & Owner of Affordable Rentals

You do not want to miss this meeting!

When: Monday, July 15, 2013 at 7:00 p.m.

Where: The Best Western, 1005 S. Moorland Road, Brookfield 53005

Who: Keith Broadnax of the Cap Fund

Cost: Free for current AASEW members, $25 for guests and expired members.

New & Improved Nonstandard Rental Provisions Form Available at Wisconsin Legal Blank

As many of you know, I draft the various landlord-tenant law forms that are sold at Wisconsin Legal Blank Co., Inc. In light of the recent court of appeals decision (Keyes & Gruner v. Waldbillig et. al) that I referenced in an earlier blog post, I have made some additions and revisions to WLB's Nonstandard Rental Provisions Form. As such, a new and improved Nonstandard Rental Provisions form is now being sold at Wisconsin Legal Blank.

The date of the new form is May 29, 2013.

I would strongly encourage landlords and management companies to start to using the new form as soon as is legally possible.

The new form includes an added provision that allows alandlord to deduct re-rental costs as allowed under Wis. Stats. sec. 704.29 from a tenant's security deposit -- this was the specific deduction that was at issue in the Keys & Gruner v. Waldbillig et. al. Court of Appeals case referenced in my earlier post.

The new Nonstandard Rental Provision form also includes a provision addressing the withholding of "holdover" damages as set forth in Wis. Stats. sec. 704.27, from a tenant's security deposit.

Finally, I made some grammatical changes and reworded a few provisions in the old Nonstandard Rental Provisions form to make them more straightforward and clear.

So to best protect yourself, I would encourage you to pick up the new Nonstandard Rental Provision form dated May 29, 2013 from Wisconsin Legal Blank.

DISCLAIMER: For those of you who may think that I am "pushing" the new Nonstandard Rental Provisions form because I receive a portion of the sale proceeds, that unfortunately is not the case : ). I am paid up front by WLB for my time to draft the forms and revise them as needed based on changes in the law. So I have no vested interest in you purchasing the new form other than I don't want you to be caught in the same situation as the landlord was in the Keyes & Gruner v. Waldbillig et. al court of appeals case. : )

Occupancy Standards . . . Not As Simple As "2 Persons Per Bedroom"

Simply stated, occupancy standards focus on how many individuals can live in a rental unit. Landlords have the right to set reasonable, non-discriminatory, limits as to how many people can live in a rental unit.

Many landlords believe that as long as they follow a policy of "2 person per bedroom" that they will be fine. Unfortunately that is not always the case. There is no clear-cut occupancy guideline and as such there is confusion amongst landlords, management companies, and even the attorneys representing them : ).

In what is referred to as the Keating Memo, the Department of Housing and Urban Development (HUD) stated that it believes that "an occupancy policy of two persons per bedroom, as a general rule, is reasonable under the Fair Housing Act." However, the memo goes on to say that "the reasonableness of any occupancy policy is rebuttable" and HUD clarifies that the memos it issued in the past on the subject of occupancy standards do not state or imply that HUD will determine compliance with the Fair Housing Act based solely on the number of people permitted in each bedroom.

In fact, HUD issued the following statement in the final rule implementing the Fair Housing Amendments Act of 1998:

"Thus, the Department believes that in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of bedrooms and the overall size of the dwelling unit."

In the Keating Memo, HUD sets forth what factors it will consider when reviewing fair housing complaints involving occupancy issues:

1. Size of the bedroom and unit

2. Age of the children

3. Configuration of the unit

4. Other physical limitations of housing (i.e. capacity of the septic, sewer, or other building systems)

5. State and local law

6. Other relevant factors, such as:

- if the landlord has made discriminatory statements

- if the landlord has taken steps to discourage families with children from living in its housing

- if the landlord has enforced its occupancy policies only against families with children

So what occupancy standard can a landlord set forth that will avoid discrimination complaints and keep the landlord out of trouble? I wish that I could provide you with a simple answer but unfortunately there is no bright line rule.

What I can tell you is the key issue or focus in discrimination cases that involve occupancy limits is always whether or not the landlord is discriminating against a family with children. So even if your occupancy policy is reasonable, if you make some discriminatory comment to the applicant, you can forget about hiding behind your occupancy standards. As such, an occupancy policy based on the number of children per unit is much less likely to be found to be reasonable than one which limits the number of persons per unit. A Mississippi property management company learned that lesson the hard way earlier this year.

Margaret Bowitz of the Metropolitan Milwaukee Fair Housing Council stated during a seminar that I attended, that “2 persons per bedroom" is just a starting point. Next, a landlord should look at the size of the bedroom. So if you have a large-sized bedroom than possibly more than 2 persons could sleep there. If the bedroom is smaller than average, maybe only 1 person would be allowed. Consider an occupancy code of 70 square feet per person for one person using the room for sleeping purposes and 50 square feet per person for rooms to be used for sleeping purposes by more than 1 person. Ms. Bowitz added that if the room is less than 70 square feet you would not have to allow it to be used for sleeping purposes, although you could allow it. She also mentioned that one can consider whether or not the area must be allowed to be considered a "sleeping quarter." So for instance, if you have to walk through the room in order to get to another room in the rental unit, you would not be required to allow it to be used for sleeping purposes.

The city of Milwaukee has an ordinance that was created to prevent overcrowding (not to serve as an occupancy standard) that focuses on size (square footage) and ignores the number of bedrooms in a rental unit entirely.

Some states such as California have laws that state that "2 persons plus one" is the occupancy standard that should be used..

So "clear" guidance on this issue is hard to come by.

I am currently defending a landlord against a fair housing complaint for refusing to rent a two-bedroom unit to a family of 5 persons. When speaking with the investigator I was told that HUD's policy is 2 person per bedroom and if that was my client's policy, the case would most likely be dismissed. But later in that same conversation I was asked if the rooms were larger than average and then told that if they were then maybe more than 2 people could live there. I was told that measurements of the room would need to be taken. So obviously, it is not as simple as having an occupancy standard of "2 persons per bedroom." If it was, why would HUD have even investigated this claim against my client.

Another example that demonstrates that the "2 person per bedroom" occupancy standard is not the panacea that some landlords believe it to be, occurred in December of 2012 when 3 real estate groups in Connecticut agreed to pay a local woman $40,000 as a result of a complaint she filed against them for discrimination based on familial status (i.e. children). The woman's complaint alleged that a "2 person per bedroom" occupancy limit was more restrictive than state and local law and therefore unreasonably limits the ability of families with children to rent from the 3 real estate groups. Again, if it was as simple as "2 persons per bedroom" why would the Connecticut case have been investigated and why would the landlords involved have agreed to pay out $40,000 to the complainant.

So it is pretty clear to me that the "2 person per bedroom" occupancy limit is not enough to protect an landlord. However, to confuse the issue further, I have read conciliation agreements (i.e. settlement agreements resolving a claim of discrimination) between HUD and a landlord in which the settlement language requires that the landlord adopt an occupancy standard of "2 persons per bedroom" going forward. What gives?

All I can tell you is there is no "hard and fast" rule for occupancy limits in residential rental housing. Whether or not the occupancy standard that you have in place will be found to be reasonable will depend on the specific facts of your rental property and the specific facts of your interactions with the prospective tenant that says you discriminated against her.

So don't be foolish and assume that you are "safe" as long as you follow the "2 person per bedroom" rule, otherwise you might find yourself on the wrong side of a discrimination claim.

UPDATE 8-26-13: Here is yet another example of the 2 person per bedroom rule no longer being acceptable for HUD.

UPDATE 11-10-14 - Here is another example of the 2 person per bedroom rule being acceptable.

Court of Appeals Decision Reminds Landlords To Review Their Nonstandard Rental Provisions Before Making Deductions from A Tenant's Security Deposit

The Wisconsin Court of Appeals, in an unpublished decision dated May 9, 2013, held that a landlord wrongfully withheld a portion of his tenants' security deposit for costs incurred when attempting to re-rent the rental unit.

As I have mentioned in a prior post, Wisconsin law essentially allows a landlord to deduct only three things from a tenant's security deposit: (1) damage, waste, or neglect, (2) rent, (3) utilities. Any other items that a landlord would like to deduct from a tenant's security deposit must be included in a separate written document entitled "Nonstandard Rental Provisions" (NSRP), in order to be legally deducted. So if what you want to deduct something from your tenant's security deposit and it is not one of the 3 items listed above and not set forth in your NSRP, it will most likley be considered an illegal deduction.

In Keyes and Gruner v. Waldbillig et. al (2012AP1180), two tenants broke their lease with their landlord by moving out prior to the last day of the lease term. The landlord wrote the tenants a letter explaining to them that there would be charges against the their security deposit to cover the cost of advertising and marketing the apartment and that his property management company charged him $100 per showing to show the unit to potential new tenants.

The landlord's managment company showed the tenants' vacated unit 6 times for a total of $600 in costs to the landlord prior to finding a new tenant for the unit. The landlord sent the tenants their security deposit itemization letter explaining that he witheld $600 of their security deposit to cover the costs to re-rent the unit.

Under Wisconsin law, specifically Wis. Stats. 704.29, if a tenant breaks their lease or is evicted, a landlord is required to make reasonable efforts to mitigate the tenant's damages by trying to re-rent the unit. The same statute also says that a tenant who has broken his/her lease or is evicted can be held responsible for all lost rent and all reasonable expenses of listing and advertising the vacant unit which were incurred by the landlord while trying to re-rent the unit.

But this landlord failed to have a NSRP that allowed him to deduct for the re-rental costs. As an aside, if the landlord had just opted to withhold the lost rent incurred while trying to re-rent the unit from the tenants' security deposit instead of the re-rental costs, he also most likley would have prevailed even without having the NSRP regarding re-rental costs since rent owed is an allowable security deposit deduction. Instead, the landlord deducted $600 in showing fees from the tenants' security deposit even though he did not have a NSRP in place that allowed him to do so.

Had the landlord had such a NSRP in place, it is my opinion that his deductions from the tenants' security deposit would have been proper (assuming that the court would agree that $100 per showing is reasonable) and he would not have lost the case and been required to pay double damages and the tenants' attorney's fees.

The moral of the case is that just because the law allows a landlord to hold tenants responsible for the costs to re-rent if they break their lease, does not mean that the landlord can legally withhold those costs from the tenants' security deposit. In order to be able to legally do that, the landlord must have a NSRP in place which allows for the deduction of re-rental costs allowed under Wis. Stats. 704.29.

Does your NSRP contain such a clause? Do you even have a NSRP docuement? If not you may want to contact Wisconsin Legal Blank, which sells a very good Nonstandard Rental Provisions document which I have drafted, that will protect you.