NOW AVAILABLE: Landlord Boot Camp On-Demand

Hello. I am excited to announce that my latest Landlord Boot Camp recording is now available as an On Demand video series. The benefits of this On Demand format are many.

1. You can choose just the video(s) that you are interested in, or the entire seminar.
2. You can watch the videos from the safety and convenience of your own home or office during the rental period.*
3. You will receive the searchable PDF manual that accompanies the video(s) that you choose, which makes finding the information that you are looking for much easier in the future.

I have been presenting my in-person Landlord Boot Camp to landlords and property managers throughout the state since 2008. This On Demand format is the next step in the evolution of Landlord Boot Camp. I hope that you enjoy this new method to learn everything that you need to know about residential Landlord-Tenant law in Wisconsin.

Enjoy!

T

* If you rent individual videos of Landlord Boot Camp you have 7 days to view.
  If you rent a three video package you have 14 days to view.
 Rent the entire Landlord Boot Camp seminar (8 videos) and you have 20 days to view

THE MONEY IS FINALLY HERE . . . Learn How To Access Wisconsin's Emergency Rent Assistance Payments

As I am sure many of you have heard, back in December the Federal government agreed to set aside $25 Billion dollars for Rent Assistance as a result of Covid.  Of that large amount, Wisconsin was allocated a total of $386,777,591.50 to be divvied up as follows:

1. Brown County - $7,907,949.30

2. Dane County - $8,579, 734.30

3. City of Madison - $7,762,609.60

4. Milwaukee County - $10,629,017.80 -- (to be distributed by Community Advocates)

5. City of Milwaukee - $17,641,552.70 -- (to be distributed by the Social Development Commission (SDC))

6. Waukesha County - $12,082,683.60 --  (to be distributed by Community Advocates)

7. State of Wisconsin - $322,174,044.20

Both tenants and landlords have been waiting for months for this money to arrive and it is FINALLY here.

One of the nice thing about the Wisconsin Emergency Rental Assistance Housing Payments (often referred to as ERAP or WERAP) is that the Landlord is allowed to complete the application on behalf of the Tenant.  This was a very important change in case you have a Tenant that is qualified to receive the money but has refused in the past to apply for the emergency rent payments. 

Landlords can begin applying through Community Advocates on behalf of their tenants for both Milwaukee County and Waukesha County now.

It appears that there is still some logistics for the City of Milwaukee and the SDC to work out so they are not yet taking applications.

If your rentals are located outside of the city and counties of Milwaukee or Waukesha you will want to take a look at the WISCAP WERA website for more information and assistance. 

A Nicely Done News Report Explaining How the Eviction Moratorium is Negatively Affecting Both Tenants AND Landlords

I was interviewed by Reporter Caroline Reinwald of ch. 12 WISN yesterday on the CDC eviction moratorium and how it is negatively affecting both Tenants AND Landlords.  I thought Caroline did a very nice job of explaining the pains felt by both sides and was happy to be interviewed for the report.

The Landlords' Side of the Story

Have you noticed that landlords tend to be portrayed as evil and uncaring?  I'm reading lots of so-called news articles (that really are nothing but opinion pieces) with such sentiments.  The media also tend to treat all landlords as large companies making lots of money at the expense of tenants.  Did you know that the vast majority of landlords throughout the U.S. are small "mom & pop" landlords that own rental property in addition to working a full-time job?

Our own Milwaukee Journal-Sentinel likes to push this false narrative.  Despite myself and other landlords having spent literally hours on the phone with, writing emails to, or even meeting personally with J-S reporters, the paper still opts to ignore the facts and imparted knowledge provided, in order to continue the false narrative that landlords are evil. 

One individual, Nick Sakalis, has taken the lead in trying to tell the landlords' side of the story.  Below are several of his videos.  Please take the time to watch them, and share them if you are so inclined.  They are well-made and refreshingly don't just tell one side of the story.   They also explain an important point that the J-S tends to overlook, the fact that if landlords fail, tenants will also fail, as will the towns and cities that contain rental housing.  It seems short-sighted to continue to produce stories pushing the false narrative rather then trying to educate its readers about the long-term effects of continuing eviction moratoria without providing funding to keep both tenants and landlords afloat. 

Mr. Sakalis has also created a YouTube channel dedicated to collecting all landlord-related videos in one place. He has already assembled a fair amount of content and is adding to it everyday.  I will continue to post Nick's videos to my blog as they are created.

Perhaps one day the J-S will realize that landlords and tenants are not opposing forces and should not be trying to vilify the other. Rather landlords and tenants are two sides of the same coin.  What helps landlords also helps tenants and what helps tenants will also help landlords and by extension rental housing, municipalities, stores etc etc.  Is the Milwaukee Journal Sentinel listening . . .  probably not.

GUEST POST: Milwaukee Rental Housing Resource Center - A Collaboration

By Tim Ballering (justalandlord.com)

Yesterday's new contained many articles on Milwaukee’s Rental Housing Resource Center which is a collaboration to help both renters and housing providers. This was project was envisioned and started a couple of years ago. It became more relevant with the COVID economic crisis that has impacted the ability of folks to pay rent and avoid eviction.

The partners are a very diverse group: Community Advocates, Legal Aid, Legal Action, IMPACT, Mediate Milwaukee, Hope House, the City of Milwaukee, County of Milwaukee, and the Apartment Association of Southeastern Wisconsin.

The inclusion of the housing industry makes Milwaukee rather unique from other communities. Here we realize that housing and renters are two sides of a single coin. Both need the other to succeed.

Here is yesterday’s news:

• Milwaukee renters and landlords will have a central spot to get assistance with rent, part of an effort to reduce evictions. 
• Milwaukee Rental Housing Resource Center Hopes To Reduce Evictions  
• Rental Housing Resource Center to launch Dec 1. 
• Keeping the roof over your head: collaborative website helping those facing pandemic induced eviction 

LANDLORD BOOT CAMP 2020 - How to Navigate the CDC Eviction Moratorium and More

We are excited to announce Attorney Tristan Pettit’s Landlord Boot Camp will be held on Saturday, November 14th.

Due to  the CDC National Eviction Moratorium, we delayed this event so that we could include the most timely information on navigating the current CDC Moratorium and other COVID-19 related issues affecting Landlord-Tenant law.

The Saturday, November 14th event will be held as a live-streamed webinar from 8:30 AM -5:00 PM with live Q & A from 5-6 PM.

Enjoy these advantages of the new virtual format:

• Attendees will receive a searchable 100 page + PDF Boot Camp manual, making it easier to search and reference items in the future.
• A recording will be available to attendees for 14 days after the event to re-watch portions that you want a deeper understanding of.
• Attend the event from the comfort and safety of your own home.
• As in prior Boot Camps, the live Q & A session will be part of this event.
• You will receive all of the same information normally presented in Landlord Boot Camp PLUS the latest information on navigating the CDC and CARES Act eviction moratoria.

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, in March 2014 and again in March 2016 with the passage of ACT 176, and again in April of 2018 with Act 317 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.

6. Best practices to avoid violating ATCP 134 and being sued by your tenant for double damages and actual attorney's fees.

7. How to properly draft a security deposit itemization letter.

8. How to avoid DATCP investigations and Civil Investigative Demands (CID's).

9. How to draft a good Notice for Breach so that it will not be defeated in court.

10. When you should use a 5 day notice, 14 day notice, 28 day notice.

11. The best way to serve a notice terminating tenancy.

12. Learn the "Ins and Outs" of the judicial eviction process.

13. How to prepare for your eviction trial in court.

14. Whether or not it is worth it to pursue a money judgment against your tenant.

15. Learn about the two types of garnishment action

COST:

• AASEW Members $189
• Non-Members $329
• Boot Camp + 12 month AASEW membership - $330

Wisconsin landlord-tenant laws are constantly changing. To help keep you up to date those who attended in the past three years receive a $40 discount.

To register or obtain more information click here

GUEST POST: CDC Attorneys State That Landlords Can Challenge Tenants' Declarations In State Eviction Court

This is guest post written by Tim Ballering (JustALandlord.com)

The CDC attorneys have stated in federal court that owners are permitted to file evictions as well as challenge the veracity of a tenant's CDC Declaration. The CDC argues that owners can even obtain an eviction judgment, as long as the physical move is stayed until the end of the moratorium.

Most importantly, the Order does not prevent a landlord from filing an eviction action in state court. First, the Order expressly permits eviction for various reasons other than nonpayment of rent. See 85 Fed. Reg. at 55294 (property damage, criminal activity, etc.). Second, nowhere does the Order prohibit a landlord from attempting to demonstrate that a tenant has wrongfully claimed its protections. And third, even where a tenant is entitled to its protections, the Order does not bar a landlord from commencing a state court eviction proceeding, provided that that actual eviction does not occur while the Order remains in place. See id. at 55292 (“the order prevents these persons from being evicted or removed from where they are living through December 31, 2020”); id. at 55293 (defining “evict” as “to remove or cause the removal of”).

https://nclalegal.org/wp-content/uploads/2020/10/CDC-Response.pdf at page 42

The CDC attorneys further state that owners are permitted to sue tenants for nonpayment in civil court. This creates an interesting situation where an owner who is not receiving rent can garnish wages. 

Where tenants fail to pay rent, nothing in the Order precludes landlords from filing a breach of contract action seeking payment. Plaintiffs may prefer a different remedy, but they plainly have access to a judicial forum.

id. at page 43

This critical interpretation of the CDC Order is from its legal counsel, the US Dept. of Justice, in a brief in filed in the Brown v. Azar case, the federal court case in Atlanta seeking to overturn the CDC Order.

This is very different than what owners are being told by tenants' attorneys as well as local courts.

Personally I am not opposed to the moratorium if the tenant truthfully fills out the CDC Declaration, which includes an actual substantial loss of income, partial payments to the best of the tenant's ability and having applied for all applicable government assistance.

The concern is when tenants are using the CDC Order as a “Get Out Of Rent Free” card and submitting knowingly false Declarations. For example we received our first Declaration last week. The tenant listed SSI as her sole source of income on her application, so she did not suffer a substantial loss of income. She also has failed to apply for either the Community Advocates or the WRAP funding.

CDC and HHS Issue Order for Temporary Halt In Residential Evictions to Stop The Spread of COVID-19

On September 1, 2020, the Centers for Disease Control and Prevention (CDC) and Department of Health and Human Services (HHS) published an Agency Order temporarily stopping all residential evictions in the United States, in order to prevent the spread of COVID-19.

What Are the Effective Dates of this Order?

This order became effective immediately upon publication (presumed to be Sept 4, 2020) and continues through December 31, 2020.

What Is Prohibited under this Order?

Under this Order, a landlord, owner of a residential property, or other person with a legal right to pursue an eviction is prohibited from evicting any “covered person” from any residential property in any jurisdiction.

Who Is a “Covered Person” Under this Order?

A “covered person” is defined as any tenant, lessee, or resident of a residential property who provides to their landlord a written declaration under penalty of perjury that says:

1. The person has used best efforts to obtain all available government assistance for rent or housing;

2. The person expects to earn less than $99,000 in annual income for calendar year 2020 (or no more than $198,000 if filing a joint income tax return) or was not required to report any income in 2019 to the IRS or received a stimulus check pursuant to section 2201 of the CARES Act;

3. The person is unable to pay the full rent due to substantial loss of household income, loss of compensable hours of work or wages, lay-off or extraordinary out-of-pocket medical expenses;

4. The person is using best efforts to make timely partial payments that are as close to the full payment as the person’s circumstances may permit, taking into account other non-discretionary expenses;

5. Eviction would likely render the person homeless or force the person to move into and live in close quarters because the person has no other available housing options.

The Order defines “evict” and “eviction” to mean any action by a landlord to remove or cause the removal of a covered person from a residential property. This language is broad enough to cover the act of serving a notice terminating tenancy, the filing of an eviction, and the filing of a previously obtained writ of restitution with the Sheriff. 

Can A Landlord Still Pursue a Non-Rent Eviction During the Moratorium?

Nothing in the Order however prevents a landlord from pursuing an eviction based on a tenant that:

1. Engages in criminal activity;

2. Threatens the health or safety of other tenants;

3. Damages or poses an immediate and significant risk of damage to the property;

4. Violates any applicable building code, health ordinance, or similar regulation relating to health and safety; or

5. Violates any other contractual obligation, other than the timely payment of rent, including the non-payment of fees, penalties or interest.

What Are the Penalties for a Violation of this Order?

Any person that violates this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of not more than $250,000 if the violation results in a death.

Any organization that violates this Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death.

The U.S. Department of Justice may prosecute a violation of this Order seeking criminal penalties.

What about a More Restrictive State or Local Moratorium?

The Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides for the same or greater level of public-health protection then this Order. The Order also states that it does not preclude State, local, territorial, and tribal authorities from imposing additional requirement that provide greater public–health protection and which are more restrictive that the requirements of this Order.

Are Tenants Still Responsible for Paying Their Rent During the Moratorium?

The Order states that this temporary eviction moratorium does not prevent any individuals of any obligation to pay rent or comply with any other obligations that a person may have under a tenancy, lease or similar contract. Nothing is the Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent. What the order does is prevent the landlord from removing the tenant for failure to pay rent until 2021.

Some Final Thoughts . . .

Arguably this latest moratorium protects tenants, but does it? Tenants are still required to pay the rent during the moratorium as well as late fees. If they don’t pay rent however all that happens is that the tenant cannot be evicted . . . for now. They can be evicted in 2021. Does anyone really think that a tenant negatively impacted by COVID-19 that cannot pay their rent today will have the money available to pay 5 month’s rent and late fees come January 1, 2021? How does this help tenants? It doesn’t. It is nothing more than the proverbial punting of the ball down the field. Everyone loses when a tenant is evicted.

Tenants are protected when their rent is paid and their landlord receives the rent payment so it can continue to pay its mortgage, taxes, utilities, and wages to its employees who maintain the rental property, spend money in local stores to help maintain the rental property. If the overarching goal is to actually help tenants then thought needs to be given to funding “portable” housing vouchers so that tenants that have lost their jobs due to COVID-19, will still be able to pay their rent and will continue to have a place to live in 2021. Delaying a tenant’s eviction for 5 months and having a landlord fail in the interim does not help anyone and it certainly does not stop a housing crisis.

The only way that a housing crisis can be avoided is if both tenants and landlords succeed. Trying to solve one end of the equation by kicking the ball down the field while at the same time completely ignoring the other end of the equation is short-sighted and honestly negligent

Residential Rental Evictions Down 30% Statewide

We have all heard reports that say residential rental evictions surged due to the Wisconsin eviction moratorium expiration in May.  When you look at a small time period (like the number of evictions that were filed after a 2+ month moratorium) you can always find numbers that will support your narrative. However, the real numbers show a 30% decline for the first six months of 2020 versus 2019. How can this be true, you ask? Listen to this podcast as WRA chief lobbyist Tom Larson and residential rental expert Tim Ballering from the Apartment Association of Southeastern Wisconsin (AASEW) break down the actual numbers and provide valuable insights into the eviction issue in Wisconsin.

Milwaukee Common Council Approves Legislation Requiring Lead-Safe Certification Before a Property can Be Rented To Public

On July 7, 2020, the full City of Milwaukee Common Council approved legislation to create a program certifying that rental properties are lead-safe before they can be rented to tenants.

Authored by Alderman Ramsey, this resolution directs the Department of Administration-Intergovernmental Relations Division to seek the introduction and passage of state legislation that would permit the City of Milwaukee to create a program requiring rental property owners to certify that rental properties are lead-safe before they can be rented.

Alderman Rainey in his press release, stated that many properties rented for residential use in Milwaukee are believed to have significant lead-poisoning hazards that can be contained or abated by regular and conscientious maintenance, yet many renters are not aware of the existing lead hazards and how they pose a serious risk to the health and safety of anyone (especially children) living in these residential units.  "A person renting and living in a residential property has a right to presume the property being rented is a healthy and safe environment, free from risk of sickness or injury," he said.

"A lead-safe certification program would compel landlords to contain or abate lead poisoning hazards, thus ensuring that stable value of these properties and the surrounding neighborhoods, and improving the quality of life for residents, " Alderman Rainey said.  "Even though COVID-19 remains a top health priority, we must continue to do all we can to combat the dangerous lead issues that exists in Milwaukee" Rainey said. 

HT to AASEW Owner (July 2020)

Current State of Affidavits of Non-Compliance in Milwaukee County

Drafted by Atty. Jennifer M. Hayden of Petrie + Pettit S.C.

As you may be aware, Milwaukee County Local Rule 3.85 requires that if the tenant did not sign the Stipulation in person in front of the court, or where the tenant made the first three payments due under the Stipulation and then defaulted, the Landlord must provide the tenant with notice before the court will issue a writ of restitution.

Pre-Covid-19, Landlords would send a letter by Certified and First Class Mail to the Tenant informing the tenant of the overdue payment, by amount and due date and stating in plain language that the Landlord intends to ask the court to issue a writ of restitution on a specified date at a specified time. After seven days, the Landlord would file an Affidavit of Non-Compliance along with proof of mailing by certified mail and an affidavit certifying the notice was also served by first Class Mail. The Landlord would appear in court at the date and time specified in the notice sent to the Tenant, meet with a Commissioner and obtain the Authorization for a Writ of Restitution and Judgment for Eviction. If the tenant appeared, he or she could contest the claims in the Affidavit of Non-Compliance with the Commissioner.

If the Judgement was granted, the Landlord would obtain a paper copy of the Writ Authorization from the Commissioner, purchase a Writ of Restitution from the Clerk’s office for $5.00, fill out the writ and file both documents along with the Sheriff’s Department fee, a letter of Authority for a Moving Company and the Billing Information “Yellow Card,” if necessary, with the Sheriff’s Department in the Safety Building.

With all appearances currently being by Zoom, these procedures have to be amended.

Affidavits of Non-Compliance where Notice is not required to the Defendant under Local Rule

In scenarios where notice to the tenant would not be required under Local Rule, the Landlord can sign and upload the Affidavit of Non-Compliance along with an Affidavit that the CARES Act does not apply. The court will review the Affidavit and can issue an Authorization of Writ. The Landlord can access and print the Authorization, fill out a Writ of Restitution (which are still available in person from the Clerk’s office between the hours of 12: 00 p.m. and 2:00 p.m., Monday through Friday, for a $5.00 fee) and mail both documents, along with payment, a copy of the letter of Authority for a Moving Company and the Billing Information “Yellow Card,” if necessary, to the Sheriff’s Department for processing. The Sheriff’s Department is not currently accepting in-person filing of writs.

Affidavits of Non-Compliance where Notice IS required to be given to the Defendant under Local Rule

In situations where the Landlord IS required to give the Tenant Notice under Local Rule, the Landlord can complete the Affidavit of Non-Compliance and electronically file it putting in the Notes Section that Notice must be given to the tenant. The Landlord should also file an Affidavit that the CARES Act does not apply. The Clerk’s office will then put the matter on Commissioner Flynn’s calendar at 8:30 the second Monday after the Affidavit is filed and will send a Notice of Hearing and Zoom instructions to all parties. The Landlord will appear as per the Notice. After review, Commissioner Flynn will either dismiss the matter or grant the Judgment for Eviction and issue a Writ Authorization. If Commissioner Flynn grants the judgment, she will upload the Writ Authorization. The Landlord can access and print the Authorization, fill out a Writ of Restitution (which are available in person from the Clerk’s office between the hours of 12: 00 p.m. and 2:00 p.m., Monday through Friday, for a $5.00 fee) and mail both documents, along with payment, a copy of the letter of Authority for a Moving Company and the Billing Information “Yellow Card,” if necessary, to the Sheriff’s Department for processing. The Sheriff’s Department is not currently accepting in-person filing of writs.

Staying of Writs

In either scenario, Commissioners in Milwaukee County have been issuing but staying writs for up to two weeks due to the public health crisis, so be prepared for additional delays even if judgment is granted.

Court of Appeals Upholds Ability to Charge Landlords with a Misdemeanor for Failure to Return or Account for Security Deposit

Blog post written by Atty. Jennifer M. Hayden of Petrie + Pettit S.C.

In State v. Troy R. Lasecki, the Court of Appeals upheld the ability of the District Attorney’s office to charge a Landlord with a misdemeanor for unfair trade practices for the failure to return or account for a tenant’s security deposit as required by law. 

In response to arguments that a Landlord doesn’t have notice he or she could face criminal charges, the court responded: “an ordinary person, acting as a residential landlord, would have sufficient notice that it can be a criminal unfair trade practice for a landlord either to withhold amounts of a tenant’s security deposit not reasonably necessary to pay for items authorized by statute or to fail to provide a tenant with a security deposit withholdings statement if some or all of a security deposit is withheld.”

In the Lasecki case, two tenants had complained to DATCP that Lasecki had not returned or provided an accounting for their security deposits. Lasecki failed to respond to DATCP’s inquiries and was charged by the District Attorney’s Office under Wis. Stat. § 100.20 unfair business or trade practices which carries the potential penalties under § 100.26(3): “Any person … who intentionally refuses, neglects or fails to obey any regulation or order made or issued under s. 100.19 or 100.20, shall, for each offense, be fined not less than $25 nor more than $5,000, or imprisoned in the county jail for not more than one year or both.”

While supporting the basis for the charges, in the instant case, the Court of Appeals remanded the case to the lower court due to problems with the jury instructions and instructed that “the trier of fact is to determine whether the landlord committed an unfair trade practice by either: (1) violating WIS. STAT. § 704.28—including by failing to timely return any portion of a security deposit without having a lawful basis to do so under the statute; (2) violating WIS. ADMIN. CODE § ATCP 134.06(4) by failing to provide a required withholdings statement; or (3) violating both requirements.”

While in a civil action a tenant can claim twice the value of the pecuniary loss plus reasonable attorney’s fees, in a criminal case the “primary purpose of restitution is not to punish the defendant, but to compensate the victim for his or her actual loss.” Therefore, the Court of Appeals reasoned that in a criminal action, the victim/tenant can only recover his or her actual pecuniary losses and that the victim/tenant would have to bring a civil case in order to recover more. 

What are the takeaways from this unfortunate incident? 1) Always, always, always (did I say always?) account for or return the security deposit within the time allowed by law and take only those deductions provided for by law; and 2) Always, always, always (did I say always already?) respond to an investigation by DATCP.

Wisconsin's Eviction Moratorium Is Over. Now What?

Atty. Jennifer Hayden and I presented a webinar for the Wisconsin Realtor's Association (WRA) yesterday, May 28, 202, entitled "Wisconsin's Eviction Moratorium is Over. Now What?"  In the webinar Jen and I provide an update on the following:

• Wisconsin rental Assistance Program (WRAP)
• DATCP's emergency order on charging late fees and penalties
• The CARES Act
• Best Practices that Landlord and property managers may want to consider implementing
• Eviction Court Challenges

If you are interested in viewing the 30 minute webinar in can be  found on youtube.

When Are Landlords Able to Serve Notices Again and What is the Status of The Other COVID-19 Emergency Orders?

UPDATED 5-27-20

Trying to keep track and make sense of the numerous state, county, and municipal orders not to mention the federal laws related to Coivd-19 is difficult at best. So, I thought I would put together this update so that everyone is on the same page.1

• Governor Evers’ Emergency Order # 15 – Temporary Ban on Notices, Evictions and the filing of Writs – ends on Tuesday, May 26, 2020. To be safe I am encouraging clients to wait until Wednesday, May 27th to serve any notices, file any eviction actions, or file any writs with the Sheriff's Department. After waiting all of this time, plus the additional wait time for the case to get heard in court, why risk the chance that a Court might dismiss your eviction stating that you served the notice too early or filed the eviction too early. You have had to be patient this long, what is one more day for peace of mind. So on May 27th, you are able to serve failure to pay rent notices, non-rent breach notices, and send notices of non-renewal.

• BUT, if your rental property is covered by the CARES Act, which includes those properties with mortgages backed by Freddie Mac or Fannie Mae, or properties that receive Low Income Housing Tax Credits (LIHTC), accept Section 8 vouchers (only applies to the unit with the voucher not the entire building), or are site-based Sec 8 housing and various other programs, you are prohibited from serving a notice for failure to pay rent or filing an eviction for failure to pay rent until after July 25th. It is important to note that the CARES Act does not prohibit the service of notices for non-rent breaches or filing an eviction based on same.

• Per DATCP’s Order 20-R-02, Landlord is prohibited from charging any late fees or late rent penalties for any missed rent payments during the current Public Health Emergency, which started on March 12th (Executive Order #72), and runs for an additional 90 days after the end of the Public Health Emergency. So we will not know when this prohibition for charging late fees will end until we learn when the Public Health Emergency has ended.

W.R.A.P it up with a Bow? The Wisconsin Rental Assistance Program

By Attorney Jennifer Hayden of Petrie + Pettit S.C.

The Division of Energy, Housing, and Community Resources has partnered with the Wisconsin Community Action Program Association to provide “direct assistance” for struggling Wisconsin tenants by way of 25 million dollars allocated to agencies across the state. Tenants who meet certain income and need eligibility can apply for the funds through the Wisconsin Community Action Program Association which will then issue payment directly to the Landlord on behalf of the Tenant.  Since this program will require the tenant to apply directly for the monies, if you have not already done so, you should open up a dialogue with your tenants about this assistance so they can educate themselves.

In general, adult residents of Wisconsin with a household income at or below 80% of the county median income in the month of or prior to the application date may be eligible to receive up to $3,000 per individual which can be used toward rent owed or security deposits.
Funding will be available on a first-come, first served basis, and the Program will expire once CARES Act funding is exhausted.

Additional information on this Program, including complete eligibility criteria, application documentation requirements, and the distribution process for the rental assistance should be available shortly, along with information on a proposed “Second Initiative.” Initial information can be found here.

The Wisconsin Supreme Court Struck Down Governor Evers’ Stay-At-Home Order, So I Can Now Serve Notices Terminating Tenancy and File Evictions, Right?

Written by Attorney Jennifer Hayden of Petrie + Pettit

The Wisconsin Supreme Court struck down Governor Evers’ Stay-At-Home Order, so I can send notices terminating tenancy and file evictions, right?

Ahhh, no. The Wisconsin Supreme Court’s decision is narrowly tailored to state that it is finding Emergency Order 28 to be unenforceable and focused much of its ire on “the assertion of power by one unelected official, Andrea Palm.” Conversely, it is Governor Evers’ Emergency Order 15 that restricts the ability of a Landlord to issue a notice, bring an action or file a writ unless the Landlord completes an affidavit stating its related to an imminent risk of serious physical harm to another person and that order has not been ruled on by the Wisconsin Supreme Court (You can read the decision here in its full glory: 

But I Can Issue a Notice Terminating Tenancy for the Non-Payment of Rent on May 27, 2020, right?

Ummm, maybe. If your property is impacted by the CARES Act you are prohibited from issuing a notice terminating tenancy for the nonpayment of rent until July 25, 2020 and the notice you use at that point for the non-payment of rent has to be a thirty day notice and can’t include any charges for late fees (see our prior blog article on this topic).

We also still have the DATCP rule prohibiting Landlords from charging late fees, so any notice should not include the non-payment of late fees (see our prior blog article on the DATCP rule).

Nothing at the state or federal level has prohibited you from sending tenants who aren’t paying rent a letter or invoice reminding the tenants of the balance due as long as it doesn’t threaten to terminate the tenancy.

Finally, although not specifically related to the ability to issue notices and file evictions, keep in mind that the Stay at Home Order is still in play for the City of Milwaukee (see our prior article on the City of Milwaukee STAY AT Home Order).  That order in Section 4, Prohibited Activities states: “A landlord or rental property manager shall not enter a leased residential rental premises unless a maintenance emergency exists.”

Is That All the Bad News if I Have a Tenant Who Hasn’t Paid Rent for Months?

Ah… It might not be. There are rumors of an effort to extend the prohibitions on issuing notices terminating tenancy or filing an eviction for the non-payment of rent in Wisconsin. We have not heard anything definitive on that potential. Additionally, there is the HEROES Act which in its current form, seeks to, among other things, prohibit the filing of eviction actions based on the non-payment of rent for a year for essentially all dwellings. Here is a link to the Act, but, full disclosure, it is 1815 pages long.

WEBINAR: Landlording In The Time of Coronavirus

I hope that everyone is staying healthy, safe and sane.  

Attorney Jennifer Hayden (also of Petrie + Pettit) and I presented a 1 hour webinar for the Apartment Association of Southeastern Wisconsin (AASEW) on April 29, 2020 entitled "Landlording In The Time of Coronavirus."  In the webinar, Jen and I spoke about the various Emergency Orders and Laws that impact Landlords, some "best practices" related to issues caused by the Cornavirus/COVID-19, and what you can expect when eviction court is up an running.

Here is a link to the webinar if you are interested in viewing.

Thanks

DATCP's Temporary Emergency Rule Prohibiting the Charging of Late Fees Is In Effect

UPDATED on July 9, 2020

On, April 25, 2020, with little publicity, the Department of Agriculture, Trade and Consumer Protection (DATCP) published a temporary emergency rule (20-R-02) modifying Wis. Admin Code ch ATCP 134 (“Residential Rental Practices”) creating a temporary prohibition on the charging of late fees or late rent penalties for any missed rent payments during the COVID-19 health emergency and during the 90 days following the health care emergency or until August 27, 2020 unless the public health emergency is extended.  This rule only applies to residential housing.

The emergency rule will expire at the earliest of:
1. 150 days after the emergency rule is published,
2. 90 days after the expiration of the public health emergency (which is currently set to expire on May 26, 2020) , or
3. 90 days after the recission of the proclamation of the public health emergency.

UPDATE July 9, 2020

On June 25, 2020, the Joint Committee for Review of Administrative Rules has determined that DATCP did not have the authority to make the above Emergency Rule prohibiting late fees.  Not only did the Committee strike down the Emergency Order, but legislators then drafted legislation the prohibits DATCP from creating such a rule in the future.  

No information was provided as to whether or not the Committee's ruling applies retroactively but going forward landlords are again able to charge late fees. 

CARES Act Eviction Restrictions Apply to More Landlords Than You Think

The following is a guest post written by Atty. Jennifer Hayden of Petrie + Pettit S.C. 

We’ve previously discussed the impact of the recent extension of the Stay at Home Order by Governor Evers.  However, under Section 4024 of the CARES Act, Landlords who have residential tenants in a “covered dwelling” that participates in a “covered housing program” (as defined in section 41411(a) of the Violence Against Women Act of 1994 or the rural housing voucher program under section 542 of the Housing Act of 1949 or has a “Federally backed mortgage loan” or a “Federally backed multifamily mortgage loan”, have additional prohibitions on what they may or may not do with regard to terminating a tenancy and filing an eviction against their tenant until July 25, 2020 (120 days after the enactment date of March 27, 2020). 

Just a warning, this post is a little dry and technical but the law is dry and technical so there is not a lot to work with. ; ).  Try not to fall asleep as this is important.

What is the eviction moratorium under the CARES Act?

It consists of two key provisions which contain two sub provisions.

The first provisions is

1. Through July 25, 2020, a landlord of a “covered dwelling” may NOTdo any of the following:

(a) make, or cause to be made, any filing with the court of jurisdiction to initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges; or

          Translation:   You can’t file an eviction based on non-payment of rent or other amounts owed to you by the tenant.

(b) charge fees, penalties, or other charges to the tenant related to such nonpayment of rent.

          Translation:   You can’t charge a late fee if your tenant doesn't pay rent.

The second provision is 

2. Additionally, a landlord of a “covered dwelling” also may not:

(a) require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; or

          Translation:   You must give a tenant at least a 30 day notice to vacate.

(b) issue a notice to vacate for the non-payment of rent until after the expiration of the 120 day period.

          Translation:   You can’t serve a notice to vacate for failure to pay rent until after July 25, 2020.

So what does all of this mean exactly? 

It means that a landlord of a “covered dwelling” cannot serve a notice to vacate for the failure to pay rent until after July 25, 2020 and even if a landlord waits to serve a notice to vacate for failure to pay rent after July 25, 2020, that notice must give the tenant 30 days.

What is the end result of all of this?

A landlord of a “covered dwelling” is prohibited from filing an eviction against a residential tenant until after August 27, 2020. 

Interestingly, the Act doesn’t mention anything about notices or evictions for non-rent breaches.  Thus, it appears to leave open the possibility that a landlord can serve a 30 Day Notice for a non-rent breach during the 120 Day Period. 

Do these restrictions apply to my rental property?

These restrictions apply to landlords that own federal housing rental programs covered by VAWA (Violence against Women Act), which includes:

• Public housing,

• Section 8 Housing Choice Voucher program,

• Section 8 project-based housing,

• Section 202 housing for the elderly,

• Section 811 housing for people with disabilities,

• Section 236 multifamily rental housing,

• Section 221(d)(3) Below Market Interest Rate (BMIR) housing,

• HOME,

• Housing Opportunities for Persons with AIDS (HOPWA),

• McKinney-Vento Act homelessness programs,

• Section 515 Rural Rental Housing,

• Sections 514 and 516 Farm Labor Housing,

• Section 533 Housing Preservation Grants,

• Section 538 multifamily rental housing,

• Low-Income Housing Tax Credit.

What does a “Federally backed mortgage loan” or a “Federally backed multifamily loan” mean?

The language used to define a “Federally backed mortgage loan” or a “Federally backed multifamily mortgage loan” encompasses more properties than anticipated.  

The CARES Act defines a “federally backed mortgage loan” as any loan which:

1. is secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from 1 to 4 families, including any such secured loan, the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and
2. is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.
   

A “Federally backed multi-family mortgage loan” is similarly defined to include any loan other than temporary financing such as a construction loan which:

1. is secured by a first or subordinate lien on residential multifamily real property designed principally for the occupancy of 5 or more families, including any such secured loan, the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and
2. is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.

So once Governor Evers’ Order prohibiting the service of notices terminating tenancy and the filing of evictions has passed on May 27, 2020, landlords that own a “covered dwelling” will still have their hands tied behind their back by the CARES Act, until July 25, 2020.

It is important to be aware that both Legal Action and Legal Aid have been requesting that Commissioners and Judges confirm that a landlord (plaintiff) is not prohibited from filing an eviction based on the CARES Act.  So expect challenges on this issue and bring proof showing that your rental is not a “covered dwelling” and that you do not have a “Federally backed mortgage loan” or “Federally Backed multifamily loan” on the rental property.

It is also important to remember that like its Wisconsin Safer at Home counterpart, the CARES Act does still requires the tenant to pay rent during the 120 period.  But if they don’t, a landlord cannot do anything about it until July 26, 2020.

An Update on Milwaukee County Small Claims Court

I know that everyone is anxious to learn when and how Milwaukee County will be proceeding with evictions in the future.  I have attended several virtual Small Claims Bench/Bar Committee Meetings, which include attorneys representing both landlords and tenants as well as Milwaukee County Judges and Court Commissioners, and those issues are being discussed.

Please understand that the courts do not have all of the answers at this point.  This is a work in process.  Just as we all are, the courts are working their way through this pandemic and it’s fallout.  As more information and direction is given by the Court, I will update everyone.  For now this is what we know . . .

• We know that Governor Evers has extended the Safer at Home Order until May 26, 2020 at 8 am.
• We know the Wisconsin Supreme Court has suspended all in-person court appearance through April 30, 2020.
• We know that the Chief Judge of Milwaukee County has currently suspended all small claims court appearances through May 15, 2020.
• We know that the amount of people that go through Milwaukee County’s Small Claims Court is greater than any other court in the state.
• We know that Milwaukee County Small Claims Court has never been set up to handle virtual court appearances in the past.
• We know that we are dealing with a pandemic that has created a lot of uncertainty.
• We know that everything is fluid and could change multiple times in the future.

Milwaukee County is taking the Small Claims Court backlog very seriously.  After dealing with the speedy trial demands in criminal court, the Small Claims backlog is paramount.  The Court realizes that even once the Orders are lifted, that with the amount of people that file through Small Claims Court every day, will not allow for the necessary social distancing that will be required, until a vaccine is created.  As such, there is just no way that Milwaukee County Small Claims Court can handle hundreds of people appearing in person in Room 400 every day.  That would just be a “hot spot” in the making.

As such, Milwaukee County Small Claims Court will be re-configuring Room 400 to allow for virtual court appearances via Zoom.  The court envisions the need to conduct virtual court appearances into the summer and fall of 2020.

Since Small Claims Court has never held virtual court appearances before, it will be necessary for it to start slowly until it works everything out and is able to implement processes and procedures.  Initially Small Claims Court will focus on all pending evidentiary hearing involving collection (non-eviction matters) in which both the creditor and debtor are represented by attorneys.  This will allow the Court to have the respective attorneys assist in preparing witnesses to testify via Zoom and to generally move the process along. The current plan is to be able to hear these cases prior to May 18^th. The hearings will be held in the same date order in which they were scheduled.  The new hearing will occur at the same time of day as they were originally scheduled.

The goal is to formalize the process for conducting evidentiary hearing in collection cases and then to add more and more types of cases and different types of court appearances.  The Court is considering handling all initial appearances via paper – meaning that the defendant will need to file a written Answer.  This is still being debated.

Small Claims Court intends to staff the Court with 4 court commissioners in order to tackle the backlog of cases.  The Court will be in charge of sending out Zoom invites to the represented parties.  It will be up to the attorneys representing the creditors and debtors to adequately instruct their witnesses on how to testify using Zoom.  It is anticipated that testimony via telephone will continue to be permitted. The Court Commissioners will also have the ability to adjourn any pending evidentiary hearings if necessary due to technological problems or otherwise.  All of these cases will be live-streamed on YouTube to comply with the right to public access to our court system. Once the case is concluded the court proceeding will be removed from YouTube.

The Court is still discussing how it will handle collection cases, and eviction cases, in which either one or both of the parties are not represented by counsel.  As you can imagine, it will be extremely difficult to send Zoom invites to pro se litigants that may not even have access to WI-FI or know what Zoom is.  This is most likely why the Court is starting the process with collection cases involving attorneys on both sides.

In the interim, Small Claims Court will continue to review emergency eviction filings that involve the imminent threat of serious physical harm to another person.  To date, Judge Colon indicated that he has heard 3-4 of those cases and has granted 1 eviction judgement and issued a writ.

I realize that most of you reading this post are involved in the Landlord-Tenant law world and that you are wondering how the Court will handle eviction cases and when they will start hearing those cases.  We all want to know the answers to those questions.  The court is very aware that evictions are important and need to be heard.  As I have stated before, this is a work in progress and I will update you as the Court provides us with more information.