Guest Post: AASEW Continues Moving Forward

Below is this month's President's Column from the Apartment Association newsletter. While Joe Dahl states his reason for stepping down modestly as “to pursue other opportunities" the truth is Joe was accepted into the Princeton PhD program where he plans to expand on what he learned as an urban landlord to study housing related issues. It will be refreshing to see this type of study being done without the typical 'all landlords are bad and homeownership is the only answer' bias that so much of this work is founded upon.

Joe's life story so far is inspirational – growing up on the near Southside and through pure self determination, moving beyond those roots, getting an MBA and now being accepted into a doctoral program at one of the top colleges in the nation. I told him I want a cameo appearance when his story hits the big screen. Joe credits his involvement with rental housing as an important part of his life and opportunities.

Joe was the most charismatic leaders of the Association in the 26 years I have been involved with the group. In that sense he will be missed.

However the Association will continue to thrive. The incoming president, Jerry Carne, is long time landlord and a person who values action as well as understands fiscal responsibility. He will do well in this position, even if he may not look as good in a fedora as Joe.

We have many other outstanding board members who continue to work hard behind the scenes. Shari Engstrom, from Sid Grinker Restoration, has really stepped up the quality of our special events like the Trade Show, summer party and holiday parties. Tristan Pettit remains intimately involved in the Association. Tristan and AASEW Attorney Heiner Giese work diligently to make sure laws are as favorable to our industry as possible. Ihsan Atta is one of the sharpest and most personable people I've met. Carrie Maas has many connections within the industry and community. Ralph Hibbard, from Orkin, probably has rental housing in his DNA as his family has been in real estate even before me. Few of you probably see this, but Ralph is the real workhorse for the Association behind the scenes. For better or for worse I tend to stick around for the AASEW, adding some continuity. We have three newer board members who will find their stride and do well for us: Tim Dertz, Ronald Hegwood, and Brian Bartsch.

While on a personal level I will miss Joe, from an Association's standpoint “The Future's So Bright, I Gotta Wear Shades" Timbuk 3

- Tim Ballering

Two years ago I took the reins of the AASEW with the vision that we could grow membership and improve the industry through collective action. Supported by an outstanding board of directors I am proud of the progress we have made on both fronts. Leading the organization has been a tremendous honor and it is with a heavy heart that I must step down to pursue other opportunities. Effective June 1, 2015 board member, Jerry Carne, will become interim President.

Our organization is full of entrepreneurs, large and small, who have built businesses and improved their communities through responsible investment. As an industry with low barriers to entry it remains one of the few spaces in the economy where hard work, tenacity, and perseverance can overcome the barriers of lack of capital and connections. Ensuring this pathway to prosperity exists for others is the responsibility of all who have benefited from it.

Yet our accomplishments have not been without failure. For every landlord who responds to our call to action and joins, there are 5 who do not. Foolishly believing they can go it alone, or worse, content to free load off the structural changes we effect, this segment represents our greatest obstacle and opportunity. Their short-sightedness emboldens aggressive municipalities and inhibits are ability to resist them. Engaging them as members will be the difference between our success and failure.

Upon assuming the Presidency I promised to turn the AASEW around or run us into the ground. Maintaining the status quo was not an option and I sincerely hope our leadership carries this philosophy into the future. As an organization we must fight complacency and stagnation as aggressively as a bad laws, both are costly.

Leading the AASEW has made me a better landlord and business person and professional. It's been integral to my success and has helped me forge a new path forward. It has been my honor to serve our members and work side by side with a group much more talented and intelligent than myself to make Wisconsin a better place to own and manage real estate.

Thank you for the opportunity.

All the best,
Joe Dahl

The 10 Deadly Sins: 10 Provisions That Landlords Cannot Include in Their Wisconsin Residential Rental Agreements

With the passage of Act 143 (2012) and Act 76 (2014) the legislature has created several new provisions that a Residential Landlord cannot include in his Rental Agreement. There are currently 10 items, which I affectionately refer to as the "10 Deadly Sins" that if they are included in your Wisconsin residential rental agreement will render the agreement void and unenforceable.

In my representation of landlords over the past 20 years, the two most frequent situations in which I have found an illegal provision in a rental agreement were because: (1) the landlord decided to draft his/her own rental agreement and didn't know that Wisconsin law prohibited him/her from including certain language, and (2) the landlord used a rental agreement that s/he found on the internet that was not drafted by a person knowledgeable about Wisconsin landlord-tenant law.

Section 704.44 of the Wisconsin Statutes sets forth the prohibited provisions.

You cannot include a provision in your Wisconsin residential rental agreement that:

1. Allows a landlord to do any of the following because the tenant has contacted an entity for law enforcement services, health services, or safety services:

a. Increase rent

b. Decrease services

c. Bring an action for possession of the premises (i.e. eviction lawsuit)

d. Refuse to renew a rental agreement

e. Threaten to take any action in (a) - (d)

This prohibition is pretty self-explanatory. You cannot have a rental agreement provision that allows a landlord to retaliate against a tenant in any way just because the tenant has called the police, the municipal building inspection department, or other agency to complain about something that the landlord did (when they shouldn't have) or something the landlord didn't do (when they should have).

2. Authorizes the eviction of a tenant from the property other than by the judicial eviction process set forth in the Wisconsin Statutes.

Essentially this means that you cannot put any language in your rental agreement that states that if the tenant refuses to vacate at the end of a lease or after committing a breach, that the landlord is able to engage in self-help eviction. Your rental agreement cannot state that the landlord can change the locks so that the tenant is locked out. Your rental agreement cannot state that the landlord can remove the door to the apartment. The rental agreement cannot state that the landlord can turn off the heat or electricity to the unit. Nor can your rental agreement state that the landlord can remove the tenant's belongings and put them on the curb or in a storage facility.

If a tenant refuses to leave your property, the only legal way to have them removed is to file an eviction action against them, obtain a judgment of eviction, and if necessary involve the Sheriff's Department to physically remove the tenant. Because this is the only legal way to remove a tenant, it is illegal to include some other procedure to remove a tenant in your Wisconsin residential rental agreement.

3. Provides for the acceleration of rent payments if the tenant defaults or breaches the rental agreement or otherwise waives the landlord's obligation to mitigate damages as required in section 704.29, Wis. Stats.

Some commercial leases include an "acceleration of rents" clause but such clauses are prohibited in Wisconsin residential leases. So if a tenant breaches their rental agreement the landlord cannot require that the tenant immediately pay all future rent through the end of the term. According to sec. 704.29 of the Wisconsin Statutes, the landlord must attempt to mitigate the tenant's damages by trying to re-rent the unit. If the landlord is able to re-rent the unit then the breaching tenant will no longer be responsible for the rent once the new tenant moves in and begins paying rent. If the landlord is unable to re-rent the unit then the breaching tenant will be responsible for all of the rent through the end of the term, however since the landlord is unable to determine if that will be the case at the time of the breach, the landlord cannot include language in the rental agreement that the tenant must pay all future rent immediately upon a breach. It is illegal for a landlord to avoid his duty to mitigate the breaching tenant's damages (i.e. make effort to re-rent the unit) by putting such language in the rental agreement.

4. Requires the tenant to pay the landlord's attorney's fees or costs that are incurred in any legal action or dispute arising under the rental agreement.

This is the illegal provision that I see the most often when reviewing rental agreements. The lease agreements that are sold at OfficeMax and Office Depot contain this prohibited language. This is also the illegal language that was included in the rental agreement at issue in the seminal prohibited rental provision case of Baierl v. McTaggart.

In a commercial lease it is acceptable to include language that requires a tenant to pay for the landlord's attorney's fees and costs however it is not allowed in the residential context. A landlord who prevails in court and has a tenant properly evicted will still be responsible for paying his/her own attorney's fees. If you are interested in learning more about the Wisconsin Supreme Court's reasoning you should read the Baierlcase.

5. Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

A Wisconsin residential rental agreement is prohibited from including a clause that says that the tenant authorizes the landlord to automatically take a judgment against the tenant and that the tenant has no right to defend against it.

6. Relieves the landlord from liability for property damage or personal injuries caused by the landlord's negligent acts or omissions.

To put it simply, if the landlord causes damage or injury to a tenant then the landlord will be responsible for it. A landlord cannot remove his/her liability by having a tenant sign a rental agreement waiving that responsibility. For example, if a landlord is aware that the railing on his rental property's second floor porch is loose and the landlord has not gotten around to repairing it for several weeks, the landlord could be responsible for the tenant's injuries should he fall off the porch, regardless of what the rental agreement says.

7. Imposes liability on a tenant for any of the following:

(a) Personal injury arising from causes clearly beyond the tenant's control.

(b) Property damage caused by natural disasters or by persons other than the tenant's the tenant's guests or invitees.

This Deadly Sin is even broader in scope than the 6th Deadly Sin. Essentially, the rental agreement cannot state that a landlord can hold a tenant responsible for personal injuries that were caused by something beyond a tenant's control. So if a massive snowstorm injures someone or if an electrician hired by the landlord improperly wires the rental unit and their negligence causes injury to someone, a landlord cannot state that the tenant is liable for those injuries as they were out of the tenant's control.

Similarly, if that massive snowstorm or the faulty wiring by the electrician hired by the landlord results in property damage, a rental agreement cannot state that the tenant in liable for that damage as the damage was caused by a natural disaster and/or a person other than the tenant or the tenant's guests or invitees.

However, it is legal and enforceable for a rental agreement to state that a tenant will be responsible for personal injuries and/or property damage if the injuries or damage were caused by the tenant, the tenant's guests, or the tenant's invitees.

8. Waives any other statutory or legal obligation of the landlord to deliver the unit in a fit or habitable condition or maintain the unit during the tenancy.

A landlord has a responsibility to provide the tenant with an rental unit that is liveable and safe. A landlord also has the responsibility to repair and maintain the property to insure that it remains safe and livable. A landlord cannot avoid this responsibility even if the tenant agrees to allow him/her to do so in the rental agreement.

9. Allows the landlord to terminate the 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 a victim of that crime.

Simply stated, your rental agreement cannot state that the tenant or a legal occupant is the victim of a crime.

10. Allows the landlord to terminate a tenant's tenancy for a crime committed in relation to the rental property and the rental agreement does not include the notice of domestic violence protections required under sec. 704.14, Wis. Stats.

Most good rental agreements contain some language along the lines of "Tenant shall not engage in or allow others to engage in any criminal activity on the property." You definitely want to have such language in your rental agreement. Sec. 704.14 requires that all residential rental agreements in Wisconsin must contain the language set forth in the statute verbatim (i.e. word for word - no summaries allowed). If you have failed to include the domestic abuse protections language then your rental agreement will be void if the agreement also includes language allowing you to terminate a tenant's tenancy if the tenant or their guest have engaged in criminal activity. So the key here is to make sure that your rental agreement contains the mandatory notice of domestic abuse protections set forth in sec. 704.14.

Wisconsin residential landlords need to make sure that their rental agreements do not contain any of the aforementioned "10 Deadly Sins." Failure to remove such illegal provisions will result in your rental agreement being declared void and unenforceable and may even expose you to a lawsuit for double damages and attorney's fees by the tenant.

AASEW's 11th Landlord Boot Camp will be held on February 21, 2015

I hope everyone had an enjoyable holiday season. Now that the holidays are behind us it is time to get back to work : ) Toward that end, the AASEW has announced the details of its 11th Landlord Boot Camp.

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 11th “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 many of the landlord tenant forms for Wisconsin Legal Blank.

Attorney Tristan Pettit has given similar landlord-tenant law seminars to fellow attorneys, landlords, and property manager organizations that charge their members $300-$400.This is your opportunity to learn all of the same information at a huge discount through the Apartment Association

When: February 21st, 2015 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 2015 including member discounts at Home Depot, Sherwin Williams and more.

Wisconsin landlord-tenant laws are constantly changing. To help keep you up to date those who attended in the past three years a $50 discount.

What you will learn at the Apartment Association's 2015 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, as amended in April 2012 by Act 143 and again in March 2014 by 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)

There will also be an ample question and answer period. This alone is worth the admission.. . . and much more.

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

Call the Association at (414) 276-7378 or email us at membership@apartmentassoc.org or sign up online at www.LandlordBootCamp2015.com today to 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!

GUEST POST: An Important Eviction Case Heard By Wisconsin Supreme Court

An important eviction case heard by the WI Supreme CourtAttorney Heiner Giese on behalf of the Apartment Association filed an Amicus brief with the WI Supreme Court supporting the City of Milwaukee Housing Authority in their case against Cobbs. This case was heard by the Supreme Court yesterday.Basically the case revolves around the federal “one strike and you're out" rule for Section 8 housing and the state of WI's notice requirements for lease violations. The tenant advocates did a good job in selecting a sympathetic case to proceed on.As most of you know*, in WI you must give a tenant under a lease for a term a five day notice with right to cure for the first lease violation within the term of that lease. This is fine if perhaps they are a bit noisy one time. However it fails when there is a criminal act. Justice Gableman asked the Legal Action attorney to explain how 1st Degree murder be cured as long as the tenant doesn't do it again.A link to the oral arguments in front of the Supreme Court is at:http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?evhdid=9392WI's laws on lease violations are generally goofy. You have to give a tenant the right to cure for lease violations including criminal acts under a lease for a term, but you are not permitted to use a 5 Day Breach with right to cure for a month to month tenant even for minor lease violations. So when your month to month tenant has the radio too loud you have to either ignore it or give them a 14 Day without a right to cure.One of our Association's legislative initiatives for 2015 is to change the law to permit a 5 Day with right to cure for month to month tenants as well as allowing for a notice with no right to cure for criminal acts regardless of the length of the rental agreement.Tim Ballering

Screening Prospective Tenants Is a Must --- That Includes Commercial Tenants

Those of you that have attended my seminars or read prior blog posts of mine are well aware that in my opinion screening prospective tenants is the single most important part of landlording.

These sentiments apply to commercial tenants as well as residential tenants. Just because your tenant is a corporation, LLC or some other business entity does not make make them legitimate.

A corporate tenant can also fail to pay rent, damage your property, and otherwise be a nightmare. In fact some tenants can hide behind an empty shell of a corporation (or partnership or LLC) and actually turn out to be a commercial tenant from hell.

I was recently interviewed by Colleen Henry of Ch. 12 News about one such "professional" tenant from hell. This tenant moved her business into her landlord's rental unit and refused to move out even though she had not paid rent for months. She bounced her check for the security deposit. She bounced her check for the 1st month's rent. She refused to make any other rental payments. She ignored her landlord's pleas to pay rent or move. Once her landlord began the process to evict her, she filed bankruptcy. By doing so all creditors, including her landlord, were precluded from attempting to collect from her (including the filing of an eviction action against her) until they received permission from the bankruptcy court. And this wasn't the first landlord that this tenant did this to. She had done this to landlords before.

Tenants such as this one make good landlords want to get out of the business.

My recommendation to landlords who are or have been in this difficult situation is not to give up and get out of the business but rather take the time to educate yourself about landlord tenant law so that you are better equipped to handle such a situation in the future. Chances are the better educated you are the better chance that you will not rent to the tenant from hell because you will have learned enough to know that you ALWAYS, ALWAYS must screen your tenants before signing a lease and/or handing them the keys to your property.

City of Milwaukee Looking to Expand Its Residential Rental Inspection Program (a.k.a Landlord Licensing)

The Department of Neighborhood Services (DNS) of the city of Milwaukee is looking to expand its Residential Rental Inspection (RRI) program to additional parts of Milwaukee. Simply put the RRI program is "landlord licensing" at its heart and it may very well be coming to your neighborhood.

As background, the RRI program was created in December of 2009 as a so-called "pilot" program. It allowed the city to enter a landlord's rental unit (without a warrant and without requiring a tenant to make a complaint) and inspect it. If a rental unit did not pass muster it would not receive a certificate (license) from the city and could not be rented out. If the rental did pass inspection then the landlord was either issued a 4 year certificate or a 1 year certificate. Landlords were charged $85 per inspection. It was only implemented in the Lindsay Heights area and the eastside of Milwaukee near UWM.

DNS is now requesting that those two pilot areas become permanent. DNS is also requesting to expand the program. The proposed expansion would involve two phases. Phase One of the expansion would include the neighborhood around the Basilica of St. Josaphat. Phase Two of the expansion would include Washington Park, Metcalf Park, Amani, Triangle, and Clarke Square neighborhoods.

Back in 2009 the RRI program was downplayed by DNS as a short-term "pilot" program just to help those two areas. DNS also told us that the RRI program was only concerned with serious safety issues like attic bedrooms, decrepit 2nd floor porches, and extension cord wiring. Ask the owners of rental properties in Lindsay Heights and the UWM area how many building code orders they received for non-serious safety issues.

I hope that all Milwaukee landlords have now come to the realization that the plan all along has been for this to be a city wide program. Many landlords who didn't own properties in the two pilot areas chose to bury their heads in the sand because the program did not affect them. That is no longer the case, the RRI program will encompass the entire city of Milwaukee if landlords allow it.

If you would like to read more about the plan to expand the RRI program read the Commissioner of DNS' 9/24/14 memo to the Zoning and Development Committee and Milwaukee Common Council.

If you would like to learn more about the details of the RRI program please refer to my blog posts on this topic.

I urge all landlords in Milwaukee to contact their Alderman on this issue immediately. Also if you are not a member of the Apartment Association of Southeastern Wisconsin (AASEW) you should consider joining. For only $99 a year you will not only learn a lot about how to be a more effective and profitable landlord, but a portion of your dues will go to fight legislation like the RRI program.

Landlord Boot Camp Is Just Around The Corner - October 4, 2014.

The AASEW's ever popular Landlord Boot Camp is just around the corner. It will be held on Saturday, October 4, 2014 from 8:30 am - 5:30 pm at the Clarion Hotel located near the airport.

At this Fall's Boot Camp I will be updating everyone on how the courts have been handling and interpreting all of the law changes since Act 76 was passed back in March of this year.

I 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 4, 2014 from8:30 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

Register: Go to www.LandlordBootCamp2014.com and you can register online and read prior attendees testimonials.

Last year's AASEW Landlord Boot Camp was filled to capacity. So much so we even had to turn a few people away. So register early to reserve your spot

I hope to see everyone there.

T

Landlords Lose Lawsuit Against City of LaCrosse

On August 27, 2014, a LaCrosse County judge ruled against several LaCrosse landlords that had sued the city over its local rental registry and inspection ordinance.

The plaintiffs included 34 landlords with rental property in the city of LaCrosse and attacked the cities ordinance on both constitutional grounds as well as arguing that the ordinance violated state law, specifically Act 76, which became law on March 1, 2014. To learn a more about the specifics of Act 76 with regard to local municipalities see my prior blog post.

Prior to the court's ruling, the city unilaterally eliminated a section of the ordinance that said that a landlords could be denied a rental certificate (i.e. the ability to rent out their rental units) if they did not grant access to the rental unit by city inspectors even if the tenant refuses. The judge had earlier advised the city that he would rule against it on that aspect of the ordinance as being a violation of a person's constitutional right against unreasonable searches. As such the city eliminate that part of the ordinance prior to the judge making a ruling.

According to the judge, the remainder of the ordinance does not violate Act 76.

To learn more about the ruling read this article from the LaCrosse Tribune.

AASEW MEETING: "Companion Animals - When A Landlord Must Accept Them" on August 18, 2014

I will be speaking at the AASEW's monthly meeting on the issue of companion/comfort animals and when a landlord must accept them in their rental properties.

Disability-related complaints, including those that involve assistance animals, are the most common complaint filed with HUD over the past few years. While the definition of a "service animal" under the ADA is very limited and requires that the animal be specifically trained (and excludes emotional support animals) that is not the case with the Fair Housing Act or Wisconsin's Open Housing Law. A tenant has the right to request a "reasonable accommodation" to a landlord's "no pet" or "limited pet" policy and a landlord may be legally required to allow them to have a comfort/companion animal to accommodate their disability.

I have seen a surge in tenant's requesting such accommodations as evidenced by a increase in angry telephone calls from clients upset about this issue.

Attend the AASEW's next meeting on August 18, 2014 at 7 pm at the Best Western Hotel located at 1005 S. Moorland Road in Brookfield, and learn about this important and timely topic.

The cost is free to AASEW members and $25 for non-members of expired members.

Hope to see many of you there.

T

Second Lawsuit Filed Alleging Local Ordinance Violates Wisconsin's New Landlord Tenant Law (Act 76)

I just read in the Wausau Daily Herald today that a second legal challenge has been filed based on Wisconsin's new landlord-tenant law (Act 76). The city of Wausau is getting sued by several local landlords over its Residential Rental Licensing Ordinance which requires that rentals be inspected every three years for compliance with the city's local building codes.

One of the arguments in the lawsuit is that the ordinance is contrary to sec 66.0104, Wis. Stats (which was created by Act 76) and prohibits municipalities from enacting or enforcing certain ordinances that affect landlords and tenants. I have covered this aspect in great detail in a prior blog post.

The first lawsuit was filed in La Crosse by the same attorney that is representing the Wausau landlords.

The Wausau landlords are seeking a permanent injunction to prevent the city from enforcing their Residential Rental Licensing Ordinance.

Free Bed Bug Seminar On July 10, 2014

Batzner Bed Bug Services, Inc. will be hosting their 4th Annual Bed Bug Seminar at the Sheraton Milwaukee Brookfield Hotel at 375 S. Moorland Road in Brookfield on Thursday, July 10, 2014. The seminar will run from 8:30 am - 3:30 pm.

The seminar is FREE and includes lunch.

Topics will include basic bed bug information, bed bug history, bed bug monitoring, challenges, and trends and legal issues pertaining to bed bug. The seminar will also include a panel discussion and a demonstration by Batzner's bed bug scent detection canine team.

A copy of the detailed brochure can be viewed by clicking here.

I will be presenting on the topic of "Legal Issues Pertaining to Bed Bugs and How Landlords Can Protect Themselves" and will be speaking at approximately 1:15 pm

Pre-registration is required.

So far there are 100 attendees pre-registered. This should be a great event and well worth the cost . . . . oh wait, there is no cost - it is FREE!

Hope to see many of you there.

T

Act 76 - Wisconsin's New Landlord Tenant Law - Part 6: Alternative Disposition of Property During Eviction

Act 76, has amended sec. 799.45 Wis. Stats., and created new options for a landlord to dispose of a tenant's abandoned personal property after the writ has been executed by the Sheriff and the rental unit has been returned to the landlord's possession.

Under the old law, if the rental property was located in a county with a population greater than 500,000 people, a landlord was required to hire a moving company to remove any of the tenant's property that was determined to be of value. Under the old law, if the rental property was located in a county of less than 500,00 people, a landlord could remove the tenant's abandoned property of value himself but was required to post a bond before doing so, which could be very expensive.

With the passage of Wisconsin's new Landlord-Tenant law, Act 76, a landlord can now remove any of the tenant's abandoned property himself, regardless of the size of the county in which the rental property is located, once the Sheriff has executed the writ and the rental property has been returned to the possession of the landlord, and assuming the landlord has complied with the other requirements of sec. 705.05(5), Wis. Stats.

Many landlords -- as well as the press reporting on the new law -- misunderstood the new law and believed that a landlord was no longer required to involve the Sheriff in the eviction. That is not the case. Act 76 did not remove the requirement of involving the Sheriff. The Sheriff must still be hired to remove a tenant that has not voluntarily surrendered the rental unit and the Sheriff is still necessary to return the rental property to the possession of the landlord.

What Act 76 did was remove the requirement that a moving company be used in larger counties and remove the requirement that a landlord post a bond in smaller counties with regard to the removal and disposal of any belonging left by the tenant.

Under the new law a landlord now has three options to choose from when hiring the Sheriff to forcibly remove a tenant and return the rental unit to the possession of the landlord.

1. The landlord can choose to operate under the old law -- and most of my clients are electing to do this -- and still involve and pay for a moving company. The Sheriff will then remove any tenant still on the premises and return the rental property to the landlord. The moving company will then remove any tenant property of value left behind and take it to a storage facility. The Sheriff will remain at the rental property until the moving company has completed its work.

2. The landlord can choose to hire the Sheriff only. Under this scenario, the Sheriff will remove any tenant still on the premises and return the rental property to the landlord. The Sheriff will then leave. The landlord can then dispose of any tenant property left behind as set forth in sec. 705.05 (5), Wis. Stats. (assuming the landlord has the required language in his rental agreement allowing him to dispose of the abandoned property -- see sec. 704.05(5)(bf) -- and abides by the exceptions to the disposal rules -- see sec. 704.05(5)(am) and (b)).

3. The landlord can opt to hire the Sheriff only but also elect to have the Sheriff stick around while the landlord disposes of the tenant's property (assuming the landlord has the required language in his rental agreement allowing him to dispose of the abandoned property -- see sec. 704.05(5)(bf) -- and abides by the exceptions to the disposal rules --- see sec. 704.05(5)(am) and (b)). This option allows the landlord a greater sense of security as the Sheriff will still be present should the tenant decide to visit. Please be aware however that under this option the Sheriff may have certain requirements that must be followed by the landlord, such as requiring the landlord to have a certain number of people assisting him with the removal of the tenant's property, so that the Sheriff is not sitting around for hours waiting for a single landlord to remove and dispose of a tenant's belongings.

Essentially those are the 3 options that a landlord now has to choose from if it becomes necessary to execute a writ of restitution with the Sheriff. While many counties are still working out the details, the feedback that I have received from the various counties in which I practice, has been that things have been going much more smoothly then the press and tenant advocates had prophesized.

SEMINAR - Business Killers: Avoiding The 6 Mistakes That Can Destroy Your Business and Your Future

As I always mention at the outset of my seminars, landlording is a business. Many landlords do not understand this and do not treat it as such resulting in many problems. Most people would not dare to open a restaurant or a cell phone store or any other kind of business without putting together a business plan and learning about the laws and rules regarding their new business -- yet new landlords do this all the time to their own detriment.

While this blog is primarily focused on landlord tenant law, occasionally I post about general business matters or mention a upcoming business seminar because such information is still applicable to landlords and management companies, as they are running a business. Today is one such post.

Atty. Carina Garcia of my law firm, Petrie & Stocking S.C., will be providing a free seminar called "Business Killer: Avoiding the 6 Mistakes That Can Destroy Your Business and Your Future" on Friday, June 20, 2014 at 8 am at the Milwaukee Athletic Club located at 758 N. Broadway in downtown Milwaukee.

There is no cost to attend this seminar and a light breakfast will be served.

If you are interested in learning some best practices about how to run your business and how not to squander all the wealth and time that you have put into your business -- whether the business be landlording or something else -- than you should attend this seminar.

Pre-registration is required. You can pre-register by contacting Attorney Garcia directly at (414) 276-2850 or via email at cgarcia@petriepettit.com. Pre-registration must be completed prior to June 9th.

First Legal Challenge As A Result of Act 76 (Wisconsin's New Landlord Tenant Law)

I just read an article on WXOW.com today about what I believe to be the first legal challenge as a result of the passage of Act 76 - Wisconsin's new landlord tenant law.

Two local landlords in La Crosse, Wisconsin are suing the city of La Crosse over its new registration and inspection ordinance which only applies to rental units. Per the article written by Dave Solie of WXOW.com, local attorney Bernardo Cueto filed the suit recently and says the ordinance violates Act 76 because it requires landlords to follow rules not required of other landowners. Mr. Cueto is quoted as saying "Act 76 was designed to promote equality between homeowners and renters and protect renters from unreasonable rules created by local governments and intrusions on their homes and privacy."

Act 76 amended sec. 66.0104, Wis Stats. and prohibits municipalities from enacting or enforcing certain ordinances that affect landlords and tenants, which I have discussed fully in a prior blog post.

The La Crosse Tribune also covered the lawsuit filing.

It will be interesting to see how this plays out as there was a similar ordinance enacted in Wausau recently and of course good ol' Milwaukee has the Residential Rental Inspection (RRI) pilot program which is very similar in nature.

Act 76 - Wisconsin's New Landlord Tenant Law - Part 5: Domestic Violence Notice Langauge & More Prohibited Rental Agreement Provisions

Act 76 has made many changes to Landlord-Tenant law in Wisconsin, some of which I have explained in prior blog posts. One of the biggest changes, which I have not yet blogged about, is the requirement that a landlord include language notifying tenants of certain domestic abuse protections in all rental agreements or addenda as of March 1, 2014.

The required language is set forth in sec. 704.14, Wis. Stats. and must be included verbatim in the rental agreement - it cannot be modified or summarized.

The language that must be included is:

NOTICE OF DOMESTIC ABUSE PROTECTIONS

(1) As provided in section 106.50 (5m) (dm) of the Wisconsin statutes, a tenant has a defense to an eviction action if the tenant can prove that the landlord knew, or should have known, the tenant is a victim of domestic abuse, sexual assault, or stalking and that the eviction action is based on conduct related to domestic abuse, sexual assault, or stalking committed by either of the following:

(a) A person who was not the tenant's invited guest.

(b) A person who was the tenant's invited guest, but the tenant has done either of the following:

1. Sought an injunction barring the person from the premises.

2. Provided a written statement to the landlord stating that the person will no longer be an invited guest of the tenant and the tenant has not subsequently invited the person to be the tenant's guest.

(2) A tenant who is a victim of domestic abuse, sexual assault, or stalking may have the right to terminate the rental agreement in certain limited situations, as provided in section 704.16 of the Wisconsin statutes. If the tenant has safety concerns, the tenant should contact a local victim service provider or law enforcement agency.

(3) A tenant is advised that this notice is only a summary of the tenant's rights and the specific language of the statutes governs in all instances.

Unfortunately many landlords are not even aware of this new requirement. Others complain that this will make their rental agreements 1/2 page longer. Depending on formatting - this very well may be true. Nonetheless, any rental agreements that are entered into or renewed as of March 1, 2014, must include this language. If your rental agreement does not contain this language you your rental agreement will be declared void and unenforceable.

Why is that you ask? Keep reading.

Act 76 also modified and created additional provisions that cannot be included in a Landlord's rental agreement. If a landlord includes any prohibited provision in his/her rental agreement the lease will be void and unenforceable. I affectionately refer to these illegal provisions as the "10 Deadly Sins."

Act 76 created the 10th Deadly Sin which is directly related to the DV protection language discussed above.

A rental agreement will be void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property if it does not also include the new domestic abuse protection language set forth in sec. 704, 14, Wis. Stats.

This is huge. So hopefully any rental agreements that you have entered into since March 1st of this year contain this required language. If they do not, you should immediately create an Addendum to your rental agreement that includes the DV notice language and send it to your tenants immediately so that you are in compliance. If you are using pre-printed rental agreement forms you must insure that they have been updated to include this language. I can assure you that the rental agreement form that I draft for Wisconsin Legal Blank Co. has had this language added. Going forward you only should be using the WLB rental agreement form that has a publication date of 2/17/14 or later.

Act 76 also modified the 9th Deadly Sin which was created by Act 143 (which became law in March 31, 2012). The "old" 9th Deadly Sin stated that a rental agreement was void if it allowed a landlord to evict a tenant as a result of a crime committed in or on the rental property if the tenant could not have reasonably prevented the crime. This language was problematic for many landlords. As such the 9th Deadly Sin was modified in Act 76 to read:

A rental agreement will be void and unenforceable if it contains a provision that allows the landlord to terminate the tenancy of a tenant based solely on a crime being committed if the tenant, or someone lawfully living with them, is a victim of that crime.

Hopefully there will not be any new Deadly Sins created in the near future. If there are, we will end up having more clauses that cannot be included in a residential rental agreement than can be included ; ).

Only 7 Days Left To Sign Up For Landlord Boot Camp on March 8th

There are just 7 days left to register for Landlord Boot Camp!!!

Come learn about Wisconsin's new Landlord Tenant law – Act 76 – plus everything else you need to know about Landlord-Tenant law in Wisconsin.

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

You will also receive lunch.

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 remainder of 2014 including member discounts at Home Depot, Sherwin Williams and more.

Wisconsin landlord-tenant laws are constantly changing and with Act 76 becoming effect on March 1^st --- the law has had some significant changes.

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 or judge 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. Who can appear in court to handle an eviction as of March 1^st.
17. What language you must have in your rental agreement starting March 1^st or risk a court declaring it void and unenforceable.

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

New CCAP Bill Introduced

A new CCAP bill (Senate Bill 526) was introduced on January 30, 2014 by Senators Grothman, Taylor, Schultz, Harris, and Risser. A public hearing has already been held.

Current law allows for any criminal charge to remain on CCAP even if the charge was dismissed.

This new bill, if passed, would require the Director of CCAP to remove a case involving a misdemeanor or felony from CCAP within 120 days after being notified that the case or charge has been dismissed (and not read into the record for the purposes of sentencing the defendant), the defendant was found not guilty, or the case was overturned on appeal and dismissed.

I am a fan of open records and not removing information about open records that are on CCAP. While I personally do not have a problem with a criminal charge being removed if the defendant was found not guilty or the case was overturned on appeal and dismissed, I still believe that doing so still interferes with open records, but I can bite my tongue nonethless.

On the other hand, I have a huge problem (and concern) with a criminal case being removed from CCAP solely because it was dismissed.

Many people unfamiliar with the criminal justice system assume that if a case was dismissed that that means that it was filed in error. While that certainly does occur, that is not the typical situation in which a case is dismissed. The majority of criminal cases are dismissed, not becasue they were impropely filed, but rather because the victim witness did not appear at trial to testify against the defendant and therefore the State could not prove their case. This happens quite often especially in crimes involving domestic violence.

When I was younger (and stupider) I used to do some criminal defense work. I finally quit being a criminal defense attorney after I represented a young man that was charged for the 8th time with Domestic Violence - Battery. It was alleged that he beat up his girlfriend. All 8 times it was alleged that he beat up his girlfriend. I attempted to meet with my client to prepare for trial. He refused, just smiled, and told me that it was not necessary. I told him that I could not represent him properly if we didnt prepare. He told me again not to worry and that there would not be a trial. I reminded him that there was a "no contact" order in place and that he was not allowed to contact the alleged victim so how would he know if she was or was not going to appear in court to testify against him. He smiled and said he would never do anything against the law.

The trial date came and the victim did not show. As a result the District Attorney was forced to dismiss the charge against my client as without the victim the DA could not meet their burden. My client smiled at me and said "See, I told you you didnt need to worry - no trial." He then walked out of the court room.

Even though I was young and stupid, I was not naive. I knew very well that this individual most likley had talked to the victim and either threatened to harm her if she came to court to testify against him or he actually did harm her to make sure she understood. The same thing probably happened the prior 7 occassions as well.

I would not want to rent to this person.

Under this new CCAP bill, those 8 criminal charges for DV-Battery against my client would be removed from CCAP and a future landlord would not even know they had been filed or that s/he would be renting to a person that felt it was acceptable to beat up his girlfriend whenever he couldn't control his anger management issues.

If you have similar examples from propspective rental applicants that you have screened recently, please forward the details to me directly at tpettit@petriepettit.com. Let's make sure the politicians are aware that this type of behavior does actually occur and how it may hurt our industry, if such a law is passed.

Thanks

T

Revised Wisconsin Legal Blank Forms Will Be Available on Monday, February 17th

As I hope most of you are aware, Wisconsin passed a new law that will great affect landlord-tenant law - Act 76. Whenever the law is changed, there is usually a need to revise and/or update your rental documents to comply with the law. That is definitely the case with the changes from Act 76.

As such, I have had to update many of the rental documents that are sold at Wisconsin Legal Blank.

The new law becomes effective March 1, 2014. So for those of you that use the WLB forms you will want to use these revised forms for any new tenancies that commence on or after March 1, 2014.

The following Wisconsin Legal Blank forms have been revised:

1. Residential Rental Agreement (#19)

The changes made to this form are very important. As of March 1, 2014, it will be required that all residential rental agreements include certain language that provides notice of domestic abuse protections. Act 76 states that a rental agreement will be void and unenforceable if it allows a landlord to terminate a tenancy for a crime and the rental agreement fails to include the domestic violence notice language. As a result of having to add this additional language verbatim the Residential Rental Agreement form will be much longer.

Several other changes and modifications were made to this form as well including:

a. Revision of the "Extermination Costs" section

b. Addition of a "Non-Waiver" section

c. Addition of a "Criminal Activity Prohibited" section

d. The "Notice to Vacate" section was modified to clarify the law better regarding terminating a lease for term. The 30 day notice required to terminate a month to month tenancy was changed to 28 days to coincide with Wisconsin statutes.

e. The "Abandoned Property" section was modified to comply with the law changes in Act 76

f. Additional language was added to clarify that operating a business or providing child care services are not allowed in the rental unit.

g. Additional language was added in the section entitled "Security Deposit" to state that if the repair costs for tenant damages are not known in time for the sending of the security deposit transmittal letter that a "good faith" estimate may be used.

f. Clarifying language was added to the "Breach and Termination" section.

2. Residential Lease Renewal or Notice To Vacate (#970) -- Was updated to comply with Act 76's changes regarding abandoned property.

3. Notice of Rent Increase (for Month to Month Tenant) (#332) - Was updated to comply with Act 76's changes regarding abandoned property.

4. Check-In / Check-Out Sheet (#997 and #993) -- Was updated to to comply with Act 76 with regards to the title and the "When To Use" explanation as well as some stylistic changes.

5. Rental Application (#996) - Eliminated some sections that were not needed and could possibly cause problems for landlords, added some additional instructions for applicant, restructured the layout of the form, and reworded much of the language at the bottom of the signature page.

6. Nonstandard Rental Provisions (#984) -- Rewrote the "When To Use" section to better explain the purpose of a NSRP document, removed the "Miscellaneous Matters" section of the form, revised the statutory references, and fixed some grammatical issue.

I can't stress enough how important it is to use updated/revised forms when they become available. I still see landlords using the Residential Rental Agreement that was drafted over 10 years ago. There are important reasons that rental documents are updated: (1) To comply with law changes, (2) To eliminate problem language that has caused landlords problems. Each new version of these forms are supposed to make your life easier. Using old forms is just an invitation for problems. Effective, March 1, 2014, failing to use the revised Residential Rental Agreement may result in your Agreement being declared void and unenforceable.

T

AASEW Meeting: Come Learn About The New Landlord-Tenant Law (Act 76) on Feb. 17th

As many of you know I have been blogging over the past month or so about aspects of the new Landlord-Tenant law that goes into effect on March 1, 2014. Well, I will continue to blog about the new law in the future, but if you would prefer to learn all about Act 76 in its entirety you should plan on coming to the next AASEW monthly meeting on Monday, February 17, 2014 at 7 pm at the Best Western in Brookfield.

Atty. Heiner Giese and myself, both of whom were actively involved in the drafting of this new law, will be presenting the new law in its entirely at this meeting. I will be handling out my outline/summary of the new law as well and Heiner will be handing out copies of the new language that MUST be included in all residential real rental agreements as of March 1, 2014.

In my opinion, this will be the single most important AASEW meeting of the year. So you will not want to miss it.

Attendence at the meeting is free for current AASEW members or $25 per person for non-members (if you join the AASEW at the meeting the $25 fee will be credited to your membership). If you would like to join the AASEW ahead of time so that you can more quickly find a seat for the meeting you should call Betzi at 414-276-7378 prior to the meeting.

I look forward to seeing everyone there.

T

Act 76 - Wisconsin's New Landlord-Tenant Law - Part 4: Who May File An Eviction and Who May Appear In Court

Act 76 which will become effective on March 1, 2014 has changed Wisconsin law with regard to who may file an eviction action and who can appear in court to prosecute an eviction.

Current law only allows the person or entity "entitled to the possession of the property" to file an eviction action. Typically this would be the owner of the rental property. As such, a management company or another third party cannot currently be named as the plaintiff in an eviction action -- only the owner can.

In the past, the Milwaukee County Court Commissioners where monitoring this issue closely, even going so far as to look up the tax bill for the rental property online while the case was in court to insure that the named plaintiff in the eviction lawsuit was the owner named on the tax bill. If they were not, the case would either be dismissed or adjourned to allow the owner to be substituted as the plaintiff and appear in court.

Act 76 will amend sec. 799.40(1), Wis. Stats., and as of March 1, 2014, an eviction lawsuit may be filed by either:

1. The person entitled to possession of the property (i.e. owner), OR

2. An agent of the person entitiled to possession of the property as long as they are authorized to do so in writing.

So in the very near future, it will be legal for a property management company to file an eviction lawsuit on behalf of one of their clients (the owner) as long as the owner has authorized the property management company to do so in their management contract or a separate writing.

Similarily, Act 76 will also change who may appear in court to represent the named party in an eviction action.

Current law allows a person entitled to possession of the property (which can be a person, business entity, trust etc.) to appear by the person himself or herself, an attorney, or a full-time employee. As a result, landlords that had transferred their rental properties into a LLC (limited liability company) for liability protection were required to appear in court by an attorney unless they could prove that they were a full-time employee of the LLC (which was typically not the case).

So under current law, if an LLC was the owner of the rental property -- and thus was required to be the named plaintiff -- it could only appear in court through a lawyer. A member of the LLC, even if it were a single member LLC, could not appear in court to represent the LLC. To those of you who understand the basics of what is referred to as the "corporate fiction" of a business entity and understand that a business entity (even a sole member LLC) is distinct and separate from the individual person, this made sense. Nonetheless, from a practical perspective it was frustrating to many smaller landlords that had opted to move their rental real estate into a LLC that they could no longer appear in court to prosecute an eviction.

Act 76 has eliminated the requirement that the person be a full-time employee of the business entity in order to appear in court on its behalf.

As of March 1, 2014, it will be acceptable for a party in any small claims lawsuit to appear in court by himself/herself, by an attorney, by a member (as defined in sec. 183.0102(15), Wis. Stats.), by an agent, by an authorized employee of the person, or by an agent of the member or an authorized employee of the agent.

So pretty much anyone can now appear in court to represent an owner or management company on an eviction as of March 1, 2014.

It is important to remember that this law change applies to all small claims actions, not just evictions. So this change will affect small claims collections lawsuits, replevins etc. Additionally, the new law applies to ALL parties - not just landlords. So a tenant will now also be able to appear in court by an agent or authorized employee.

While I am no Nostradamus, I think it is fair to say that this particular change in the law will result in bit of confusion and congestion in eviction court. It may also result in some eviction cases being dismissed if the landlord does not have a firm grasp of landlord-tenant law and small claims procedure. For those of you that are interested in appearing in court yourself, I would reccomend that you educate yourself accordingly. Attending the AASEW's Landlord Boot Camp on March 8, 2014, to insure that you know what you are doing would not be a bad idea.

And for those of you that have better things to do than waste an afternoon sitting in eviction court, you still will have the ability to hire an attorney to represet you ; )