The CDC's Eviction Moratorium Has Finally Ended . . . Now What?

The CDC's eviction moratorium finally ended at midnight on July 31, 2021.  

The moratorium could not be extended due to the U.S. Supreme Court's decision that the CDC exceeded its statutory powers and didn't have the right to issue an eviction moratorium in the first place.  Thus, any future federal moratorium will need to be created by Congress via legislation.  Congress tried to organize something in an attempt to pursue legislation late last week but did not have enough people on board to move forward.

So what happens now?

Congress could still try to pass legislation creating another eviction moratorium in the future.  From what I have read to date, this is unlikely however.  There is also a chance that the Governor could try and create another state eviction moratorium as he did last year.  The President is urging all states that do not already have a state eviction moratorium in place to create one.

So we are back to square one, except now we have so many more tenants that have not paid rent and an accumulation of rent arrearage that is truly staggering.  We also have more and more landlords in trouble, and if it is not too late already, who cannot afford to wait any longer.  It is not a good situation by any stretch of the imagination.  So how do we move forward from here?  

One option, and probably the best option if your tenant is willing to cooperate and the only issue is your tenant's inability to pay rent, is to work with your tenant to apply for Emergency Rental Assistance funds (ERAP).  There are still millions of dollars available to be distributed to housing providers.  This option is certainly preferable for most landlords, tenants, and the community at large, but the process takes time.  Community Advocates, which is distributing ERAP funds for Milwaukee and Waukesha counties, estimates that once an application is assigned to an employee until the time that the housing provider receives funding will be approximately 30 days.  But there can be a delay in assigning an employee to handle the application and that unfortunately extends the waiting period.  SDC, which is administering the ERAP funds for the city of Milwaukee has a similar waiting period.  Additionally, as many of you have learned the hard way, the application process can take some time to complete and can easily get derailed by an uncooperative tenant or missing documentation. 

Another benefit to working with your tenant to apply for ERAP funds is that this option is pretty much the only way that you will be guaranteed to be paid your past due rent.  ERAP funds can cover up to 12 months of rent arrears as well as 3 future months of rent, as long as the tenant continues to reside in the rental property.  If the tenant vacates, or you evict the tenant, you will not be eligible to receive the ERAP funds.

While applying for ERAP funding has a lot of benefits, it also has a rather large negative side in that it requires the landlord to be patient and wait even longer to receive monies that were due months and months ago.  Many landlords are not able to wait any longer.  Many aren't willing to wait any longer.

A second option is to attempt to mediate a resolution of some sort without the need of filing an eviction.  
Mediate Milwaukee has indicated that they are willing to get involved, at no financial cost to the housing provider, and perhaps they can either convince the tenant to cooperate in the ERAP application process or mediate some other resolution such as a move-out date without the need for the landlord to file an eviction. 

The third option is to evict.  For tenants that refuse to cooperate with the ERAP application process, this is the route that may be necessary.  While the landlord can initiate the application process, the tenant must cooperate in order for the money to be paid out.  Eviction may also be the only option if the tenant is engaging in non-rent related breaches, such as criminal activity,  that are causing disruption to other tenants and/or damage to the landlord.  Again, a landlord will not be able to recoup his/her lost rent if eviction is pursued. 

It is also important to not that the eviction process may take longer than usual as the Courts have never encountered such a scenario as we are currently facing.  I have read that there is a backlog of approximately 3,000 evictions in Milwaukee County which have been repeatedly adjourned each time that the moratorium was extended.  Most of these cases are scheduled to be heard in August or early September. Despite this volume, Milwaukee County has reserved spots in its daily calendar to slot in newly filed evictions.  Nonetheless, I expect the delays to get a court date will be longer than they were during pre-Covid times.  Pursuing an eviction also adds additional financial costs to the landlord, not to mention the many negative consequences an eviction has on a tenant, and disruption to tenant's family etc.  

I am not standing in your shoes, so I cannot determine what is the best option for you.  I know several landlords that have already been pushed so far that they have had to sell their properties.  I also know other landlords that are livid that they have had to use up their savings and retirement accounts to house tenants that are unwilling to even make the effort to assist the landlord in completing the ERAP application.  There are no winners here - just losers.

If you are in a position that you can wait a month or more to receive the ERAP funds, again this most likely is the only option that you will have of being made whole.  It also will be the least costly from a financial standpoint as you won't incur the eviction filing costs and the costs to turn the unit over.  But for those of you that have uncooperative or disruptive tenants, who also may not be able to pay rent, you are between a rock and a hard place and have no good option.

One place to look for assistance is the Rental Housing Resource Center which is a collaboration of various stakeholders in the housing community including the Apartment Association of SE Wisconsin.  There is no one perfect solution for everyone at this time unfortunately but hopefully there will be enough solutions available to help everyone.

T

CDC Extends Eviction Moratorium Another Month

We have just learned that the CDC will extend the Moratorium another 30 days through the end of July.  It has been reported that this is the last extension of the moratorium that will be granted by the CDC.

There is now the possibility that the U.S. Supreme Court could rule on the lawsuit brought against the CDC for overreaching with the CDC moratorium.  If the Supreme Court were to rule against the CDC, this would curtail future governmental administrative agencies from similar overreach in the future.  So the CDC is taking a big chance with this extension.

In the meantime please remember that there are Emergency Rental Assistance Payments available through Community Advocates and the SDC.  We have recently learned that the delay with rent assistance checks from Community Advocates is that they are waiting for the next contract and allotment from Milwaukee County.  So it appears that the delay is on the County and not CA.  CA believe that all pending checks that they haven’t already switched to other funding sources will be going out soon however.

Tristan and Jen

U.S. District Judge Overturns CDC's Eviction Moratorium But Stays Decision Pending Appeal

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

As you may have heard, on Wednesday, May 5th, a U.S. District Judge in Washington D.C., the Honorable Dabney Friedrich, overturned the Center for Disease Control and Prevention’s nationwide eviction moratorium and then a few days later granted the U.S. Department of Justice's Emergency Stay Pending Appeal.  This effectively "holds" Judge Friedrich's ruling until such time as the appellate court can hear the appeal.

The net effect is that the CDC's eviction moratorium will remain in effect for now and most likely through June 30, 2021, when it was set to expire, unless the appellate court makes and earlier ruling.  

To learn more about the status of the CDC eviction moratorium, the litigation regarding same, and how the courts are interpreting the moratorium and the future of evictions attend the AASEW's next virtual membership meeting on Monday, May 17, 2021 entitled "The Future of Evictions."

FTC States That Landlords That Evict or Threaten to Evict Tenants Without Advising Them of Their Rights Under Eviction Moratoria May Be Engaging in Deceptive and Unfair Practices

On March 29, 2021, the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) issued a joint statement saying that Landlords that evict or threaten to evict Tenants without advising the Tenants of their rights under the various eviction moratoria may be engaging in deceptive and unfair practices and will be monitored and investigated. 

The FTC and CFPB added that there have been "reports that major multistate landlords are forcing people out of their homes despite the government prohibitions or before tenants are aware of their rights."

The joint statement goes on to say that "both agencies will be monitoring and investigating eviction practices, particularly by major multistate landlords, eviction management services, and private equity firms, to ensure that they are complying with the law.  Evicting tenants in violation of the CDC, state, or local moratoria, or evicting or threatening to evict them without apprising them of their legal rights under such moratoria, may violate prohibitions against deceptive and unfair practices, including under the Fair Debt Collection Practices Act and the Federal Trade Commission Act.  We will not tolerate illegal practices that displace families and expose them -- and by extension us -- to grave health risks."

So what does this mean to landlords?  It means that you should add some language to any notice that you serve a tenant, whether that be a 5-Day, 14-Day, 28-Day or 30-Day notice related to the non-payment of rent or any other non-rent related breach, advising your tenant that they may have protections under the CDC Eviction Moratorium or any other state or local moratoria that is applicable.

It also means that landlords should add similar language in every eviction complaint that they may file  as well as any other communication with your tenant that mentions eviction or the threat of eviction.

While you may not be a "major multistate landlord" you certainly don't want to be on the wrong side of an investigation by the FTC or CFPB.

Attend The Next LANDLORD BOOT CAMP on May 15, 2021 and Learn the Latest on the CDC Eviction Moratorium, Emergency Rental Assistance and More

My next Landlord Boot Camp for the AASEW will be held on Saturday May 15, 2021.

Join me at the next Boot Camp and learn the latest about the latest extension of the CDC's Eviction Moratorium until June 30, 2021, status on the Emergency Rental Assistance Payments, and more while also enjoying the 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 the CARES Act, the CDC Eviction Moratorium and its extensions, and 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

DATE + TIME:

The webinar will be held via a Zoom stream from 8:30 am - 5 pm followed by a live Q+A and legal/court update from 5 pm - 6 pm.

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.

For more information or to read what prior attendees have to say about Landlord Boot Camp click this link.  Or you may contact the AASEW at (262) 893-8691 or admin@aasew.org or click here.

CDC Extends Eviction Moratorium Until June 30, 2021

On Monday, May 30, 2021, the CDC Issued an Order extending the Eviction Moratorium until at least June 30, 2021.

The "guts" of the Order remain the same from the November 2020 Order which I have previously discussed in an earlier blog post.

Some of the modifications that were made in this most recent Order include the following:

1. Moratorium is extended until June 30, 2021

2. A signed Declaration by a tenant submitted under a previous order remains valid notwithstanding the extension and modification of the Order.  Covered persons do not need to submit a new declaration under this most recent Order.

3. While the Order does not prohibit evictions for engaging in criminal activity while on the leased premises, covered persons may not be evicted on the sole basis that they are alleged to have committed the crime of trespass (or similar state-law offense) where the underlying activity is a covered person remaining in a residential property despite nonpayment of rent.

4. Individuals who are confirmed to have, who have been exposed to, or who might have COVID-19 and take reasonable precautions to not spread the disease should not be evicted on grounds that they pose a health or safety threat to other residents.

As usual some of the language of the Order addressing the modifications is not as clear as everyone would like.  It will take time for this to flesh out.  The Courts and those of us that spend time in Court are learning new things every day.

While the extension of the Order may not be good news to all housing providers, it was certainly anticipated, since so much money has been set aside for emergency rental assistance.  Back in December of 2020 an additional $25 billion was set aside for emergency rental assistance in the U.S. for the payment of rent and rental arrears.  An additional $21.55 Billion in emergency rental assistance was provided under the American Rescue Plan in 2021 for renters and housing providers in the U.S.  

Milwaukee County and Waukesha County have already received the emergency rental assistance from the first $25 Billion and it is being disbursed by Community Advocates and other agencies.  Also, Landlords are allowed to complete the application for their residents for this new round of money, although I have heard that this is not always being followed.  So if your resident owes you past rent and/or is unable to pay their current rent make sure that you are reaching out for assistance.  Some of the agencies that my clients have had the most success with have been Mediate Milwaukee and Community Advocates.

With so much money in the pipeline and the third round not yet even available, I foresee the moratorium continuing throughout all of 2021.
 

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.