Updated Nonstandard Rental Provision Form Available Now at Wisconsin Legal Blank

A new and updated version of the Nonstandard Rental Provisions (NSRP) form that I draft is available for purchase at Wisconsin Legal Blank.  The need for the revisions were due to conversations that I had with the State (namely the Attorney General's Office) while defending a client of mine during a Civil Investigative Demand (CID).  During our conversations, the AG's office informed me that it was their opinion that a NSRP cannot state that a landlord can deduct from a tenant's security deposit both a fee (set by the landlord) and the actual costs incurred by the landlord.  

It is the AG's opinion that a landlord can only deduct from a tenant's security deposit for the actual costs incurred by the landlord.  I am not aware of any law, rule, or caselaw that sets forth the AG's view regarding this, however I certainly do not want any of you that purchased a form that I drafted, to be investigated by the State.  So I have errored on the side of caution.  As such, the revised NSRP form (dated 4/11/23) excludes any reference to a fee (except for a late fee) and instead states that the landlord can deduct its actual costs incurred as a result of the tenant's failure to properly perform the listed requirements. 

I hope that you are well

T

HUD Announces $3 Million Dollar Settlement with California Landlords for Discriminating Against Families With Children By Requiring Supervision and Prohibiting Outside Play

Earlier today, April 10, 2023, HUD announced that two of its housing partners reached a $3 Million settlement with a California property management company and more than 30 owners who were discriminating against families with children by prohibiting any outdoor play activities and requiring adult supervision of all children under the age of 14 years in all common areas.  Its was alleged that tenants who violated those rules faced the threat of eviction.  This discrimination allegedly occurred at more than 48 apartment complexes and was first observed back in 2017.  Review of the Consent Decree shows how involved this investigation was. 

HUD has been focusing on overly restrictive housing rules that adversely affect families with children for awhile now.  Now is the time to review your rental documents, including your rules and regulations, to see if your rules are overly restrictive against children.

The Next Landlord Boot Camp Will Be Held on March 18, 2023

My next Landlord Boot Camp for the AASEW will be held on Saturday March 18, 2023. This Boot Camp will be in-person and streamed virtually. You choose the format that best serves you.

• 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.
• As in prior Boot Camps, the live Q & A session will be part of this event.
• If you attend the Boot Camp in person, lunch will be provided.

Landlord Boot Camp covers everything that you need to know about the CARES Act 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 actions.

DATE + TIME:

The seminar will be from 8:30 am - 5 pm followed by a Q+A from 5 pm - 6 pm.

COST:

• AASEW Members $229
• Non-Members $379

To register click here

If you have questions you can contact the AASEW at (262) 893-8691 or admin@aasew.org

Landlord Boot Camp ON DEMAND: Newly Updated Video and Information Available

Hello. I am excited to announce that my latest Landlord Boot Camp — recorded November 2022 — 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 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 Landlord Boot Camp in-person 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.

 https://petriepettit.com/landl...

* 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.

Enjoy!

T

I Think That My Tenant Has Surrendered the Rental Unit, What Do I Do Now? PART 2: Abandoned Personal Property

If you are asking yourself this question, there are generally two main issues that you need to be concerned with: (1) Has the tenant surrendered the rental unit (i.e. vacated and has no need to come back to clean, pick up personal property, or for any other reason); and (2) Has the tenant abandoned any remaining personal property. In this post we will discuss the second issue: Has the tenant abandoned their personal property?

If you have not yet read PART 1 on the Surrender of the Rental Unit, you will want to read that post first. 

Abandoned Personal Property:

Ideally the owner will have language in the rental agreement (or the rules in case of Section 8 site-based housing) that states that the landlord will not store any personal property that has been abandoned by the tenant. If such language is included in the rental agreement, and it has been determined that the tenant has surrendered the rental unit, then you can immediately dispose of the abandoned personal property (unless it is a medical device or prescription or a titled vehicle, which have additional requirements).

Even if the rental unit has been surrendered and the tenant has returned the keys, it doesn’t hurt to reach out to the tenant and confirm that any personal property that was left behind has been abandoned and may be disposed of immediately. While not legally required, it doesn’t take much time for the landlord to make this call and is the safest thing to do. If possible, I try to get the tenant to put in writing that they have abandoned any remaining personal property, or if they tell me this on the phone, I follow it up with a confirming letter to the tenant along with a memo to the file confirming the attempts I made to contact the tenant and/or the details of the conversation I had with the tenant.

If, for some reason, the language does not have the above-noted language in the rental agreement regarding not storing any personal property left behind by the tenant, then the landlord is using an outdated rental agreement, and will be required to follow the “old law” which requires him/her to send the tenant written notice summarizing the personal property left behind and advising the tenant that the landlord intends to dispose of the abandoned personal property after 30 days.

It should be noted, that none of the above is necessary if you go through with the eviction process, file the writ with the Sheriff, and have the tenant’s personal property removed by a moving company accompanying the Sheriff.

I Think That My Tenant Has Vacated the Rental Unit, What Do I Do Now? PART 1: Surrender of the Rental Unit

In an ideal world, the tenant would return their keys, remove all personal property (including trash), and leave the rental unit spotless. Then it would be clear that the tenant has surrendered the rental unit and, as there wouldn’t be any personal property remaining, there would be nothing to debate its abandonment. Unfortunately, that rarely happens.

In this situation, there are generally two main issues: (1) Has the tenant surrendered the rental unit (i.e. vacated and has no need to come back to clean, pick up personal property, or for any other reason); and (2) Has the tenant abandoned any remaining personal property.  In this post we will discuss the first issue: Has the tenant surrendered the rental unit?

Surrender of the Rental Unit:

The gold standard to confirm that a tenant has surrendered a rental unit is for the tenant to return the keys to the rental unit to the landlord. If the tenant has returned the keys to the landlord, he or she can’t get back into the unit and thus they are not planning to come back and clean or remove more personal property.

So, if it looks like a tenant may have left but not returned the keys, you should try and contact the tenant and get him or her to return the keys.

If that isn’t an option, the next best scenario would be for the tenant to sign a statement that he or she has surrendered the rental unit.

If that isn’t an option, the next best scenario is to talk with the tenant and have him or her tell you that he or she has surrendered the rental unit and then follow that conversation up with a letter to the tenant confirming the date and time you spoke with him/her and that he or she told you they had surrendered the rental unit.

If the tenant does not respond to any of your attempts to contact him or her, then you have to make a decision. Should you:

1. Play it safe and serve a notice for failure to pay rent, file an eviction, and have the Sheriff execute the writ.  This is the safest way to proceed, but also the most time-consuming and costly; or
2. Assume that the tenant has surrendered the rental unit and change the locks.

I have had to defend landlords who have chosen Option #2 and been sued by the tenant who claims the landlord engaged in an illegal self-help eviction by changing the locks without going through the judicial eviction process.  So such lawsuits do happen and it often takes quite a bit of money to resolve such lawsuits depending on the amount and quality of the personal property that was disposed of by the landlord.

Most of my clients are more risk adverse and always elect to follow option #1. But , I do have other client that are willing to take the risk and go for option #2.

If the landlord wants to pursue option #2, then I recommend that the landlord document the file with any and all attempts made to determine or confirm that the tenant has surrendered the rental unit. Examples would include:

• Memos to the file noting all the attempts the landlord made to contact the tenant to confirm he or she has vacated;
• Memo to file of all telephone calls to the tenant’s emergency contact or other known family members who confirmed that tenant has vacated;
• Interview neighbors and document the last time they saw the tenant (sometimes the next door neighbor will tell you that they saw the tenant pull up in a moving van the day before and load it up and then the tenant waived good-bye to them);
• You could run a CCAP search on the tenant to see if the tenant has been arrested and is in jail (in which case you will definitely need to proceed with the eviction process) or got a recent speeding ticket and gave a new address;
• Take pictures of the rental unit showing what, if any, personal property the tenant left behind (ideally it will be trash or items that aren’t necessary for day-to-day living like toiletries, mail with old dates and addresses on it, expired food, etc.).

The goal is to document the file so that if you opt to change the locks, and the tenant later sues you for performing an illegal eviction, you would be able to prove to a court that you did investigate and try to determine if the tenant had surrendered the rental unit and; further, that based on all the information you obtained, a reasonable person would have determined that the tenant had surrendered the renal unit as well.

Unfortunately, there is not a bright line test to determine whether or not a landlord is “safe” in changing the locks on the rental unit or if the landlord should instead go through with the eviction process. That is why the decision often hinges on the landlord’s aversion to risk.

Stay tuned for my next blog post - I Think That My Tenant Has Vacated the Rental Unit, What Do I Do Now? PART 2: Abandonment of Personal Property

The Next Landlord Boot Camp Will Be Held On Saturday, November 12, 2022

My next Landlord Boot Camp for the AASEW will be held on Saturday November 12, 2021.  This Boot Camp will be in-person and streamed virtually.  You choose the format that best serves you. 

• 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.
• As in prior Boot Camps, the live Q & A session will be part of this event.
• If you attend the Boot Camp in person, lunch will be provided.

Landlord Boot Camp covers everything that you need to know about the CARES Act 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 seminar will be from 8:30 am - 5 pm followed by a live Q+A from 5 pm - 6 pm.

COST:

• AASEW Members $199
• Non-Members $349
• Boot Camp + 12 month AASEW membership - $350

To register click here 

If you have questions you can contact the AASEW at (262) 893-8691 or admin@aasew.org 

Back To Basics - Notices Terminating Tenancy

By Atty. Gary D. Koch

A previous post discussed methods of service of notices terminating tenancy, leaving a discussion on the various notices that can be utilized for a later post. Welcome to that post!

When a landlord is in a situation where a tenancy needs to be terminated, the landlord must provide the tenant with a notice terminating the tenancy. This termination can be for a variety of reasons, or no reason at all (so long as the underlying termination is neither retaliatory nor discriminatory). The type of notice available to the landlord depends on the type of tenancy, as well as the reason for the termination. Wisconsin Statutes § 704.17 and § 704.19 provide the framework for notices.

For month-to-month tenancies, the landlord has the most options available for termination of the tenancy. The landlord can choose, upon the first breach (be it for failure to pay rent or any other non-rent breach) to issue to the tenant either a 5-Day curable notice terminating the tenancy, which gives the tenant the option to cure the breach or vacate, or a 14-Day non-curable notice terminating the tenancy, which only gives the tenant the option to vacate the unit. (Wis. Stat. § 704.17(1p)). The landlord can also issue a 28-Day notice terminating the tenancy for any reason, or no reason, so long as the termination is not for retaliatory or discriminatory reasons. (Wis. Stat. § 704.19(2) and (3)). With a 28-Day Notice, the tenancy must terminate at the end of a rental period, which is typically the end of a month.

For tenancies for a term of a year or less, or year-to-year tenancies, the landlord has the same available notices, but restrictions on when some can be given. In the instance of either a rent or non-rent breach, the landlord must first issue a 5-Day curable notice terminating the tenancy, giving the tenant the right to cure the breach. If the tenant does not cure or vacate, the landlord can start an eviction action. If the tenant cures or is otherwise allowed to remain in the premises after receiving a 5-Day curable notice, and if the tenant commits the same type of breach (either the failure to pay rent or some non-rent breach) within one year of the first breach, then the landlord can issue a 14-Day notice terminating the tenancy which does not provide the tenant the right to cure. (Wis. Stat. § 704.17(2)). The landlord can also issue a 28-Day notice terminating the tenancy, but that MUST terminate the tenancy at the end of the lease term.

For tenancies longer than a year, absent a contrary provision in the lease, the landlord must issue the tenant a 30-Day notice for any breaches (rent or non-rent). (Wis. Stat. § 704.17(3)). For these tenancies, the lease can provide for an alternative method of termination, so most leases for tenancies longer than one year make reference to the 5- and 14-Day methodology and statutes outlined above, so as to make such notices more akin to a notice to terminate a tenancy for a term of a year or less.

For ALL types of tenancies, the landlord can issue a 5-Day non-curable notice if the property is deemed a nuisance due to drugs or criminal gangs. (Wis. Stat. § 704.17(1p)(c), (2)(c) and (3)(b)). For ALL types of tenancies, the landlord can also issue a 5-Day non-curable notice in situations of criminal activity. (Wis. Stat. § 704.17(3m)(b)). Finally, for ALL types of tenancies, the landlord can issue a 5-Day non-curable notice where a tenant (or child of a tenant) faces an imminent threat of serious physical harm from another tenant if that tenant were to remain on the premises, and the threatened tenant provides necessary documentation substantiating that threat. (Wis. Stat. § 704.16(3)(b).

Because of the CARES Act, if the property is a “covered entity”, certain notices must provide the tenant with 30 days to act. It can make the terminology a bit more confusing, but the type of notice which can be given (curable, non-curable, termination) has not been changed because of the CARES Act.

For subsidized tenancies, there are different regulations which must be followed, so this blog post is targeted towards market rate rental units only.

As always, feel free to reach out to Petrie + Pettit for any assistance in determining which notice is the proper notice to issue, or for any other landlord/tenant matters.

Back to Basics – Service of the Notice Terminating Tenancy

Drafted by Attorney Gary D. Koch of Petrie + Pettit S.C.

Unfortunately, landlords sometimes find themselves in the situation where they have to terminate the tenancy of a residential tenant. There are a variety of notices that can be used to do so, and that is a topic for another day. This post is on how to serve a notice terminating tenancy.

Wisconsin Statue §704.21 delineates the methods by which a landlord can serve a notice on a tenant. Among the options are personal service, substitute service, posting and mailing after diligent attempts at personal or substitute service, sending certified or registered mail, or by any other method authorized by Wis. Stat. §801.11 for service of a summons. For most landlords, the most effective means of service of the notice is via certified or registered mail.

Wis. Stat. §704.21(1)(d) authorizes service of the notice terminating tenancy by “mailing a copy of the notice by registered or certified mail to the tenant’s last-known address.” There is no requirement that the tenant actually receive the notice, simply that the landlord mail the notice via certified or registered mail to the tenant’s last-known address. Most landlords opt to wait the extra two days (see Wis. Stat. §704.19(7)) required for the certified / registered mail service because “I never received the notice” is not a defense to service under this section. The notice need only to have been sent via certified or registered mail to the tenant’s last-known address.

Furthermore, with the 2017 amendments to the eviction statutes (via 2017 Wisconsin Act 317), the Wisconsin Legislature created Wis. Stat. § 799.40(1)(g), which provides that if a landlord serves a notice terminating tenancy via certified or registered mail, that “proof of certified mailing from the United States post office shall be sufficient to establish that proper notice has been provided for the purpose of filing a complaint or otherwise demonstrating that proper notice has been given in an eviction action, and an affidavit of service may not be requested to establish that proper notice has been provided.” It is clear that the Wisconsin Legislature supports (arguably even encourages) service of notices terminating tenancy via certified or registered mail.

With all of this said, if a tenant does not actually receive the notice, though, the action specified in the notice is unlikely to occur. For example, if a tenant owes rent but never receives the notice sent via certified mail, the tenant is less likely to pay the outstanding rent owed than if the tenant had actually received the notice. Because landlords want the tenant to get the notice and perform accordingly, many landlords also send a copy of the notice via First Class U.S. Mail, as well. THIS IS NOT A REQUIREMENT OF THE STATUTES FOR PROPER SERVICE, but rather helps foster communication between landlords and tenants. It is often much less burdensome for all if the tenant actually receives the notice and performs accordingly, rather than having to move forward with an eviction.

If you have an instance where you are required to serve notice, it is important to do it properly. Petrie + Pettit can certainly help ensure compliance. Feel free to reach out to us!

Who CARES? - Status on the Coronavirus Aid, Relief, and Economic Security (CARES) Act

By Atty. Gary Koch of Petrie + Pettit S.C.

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law on March 27, 2020, bringing many new wrinkles to the residential real estate rental practice. While several of its provisions have expired, specifically those regarding eviction moratoria, one particular provision lingers without an apparent sunset. Section 4024(c)(1) of the CARES Act requires that “[t]he lessor of a covered dwelling unit may not 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.” A recent interim rule promulgated by HUD, effective as of November 8, 2021, reiterates the 30-day notice requirement, and adds additional language necessary for notices terminating tenancy for many covered entities.

This raises two obvious questions: is my rental unit a covered dwelling unit; and what happens if I don’t comply with the CARES Act – eviction is a state court remedy, after all.

Whether or not a property is a covered dwelling unit is an easy question to answer since the CARES Act (and the subsequent interim rule) defines “covered dwelling unit”. While the definition is cumbersome, it essentially boils down to whether there’s government funding or backing of the unit.

The penalties for non-compliance with the CARES Act are less easily defined. There’s no penalty provision in the Act itself. First, though, any eviction filed without providing the necessary time frame would likely be dismissed, as the notice terminating tenancy would be found to be invalid. Additionally, the Bureau of Consumer Financial Protection (CFPB) is tasked with enforcing the CARES Act with respect to evictions. In July, 2021, the CFPB issued an Enforcement Compliance Bulletin and Policy Guidance, stating “Bureau staff will be monitoring and investigating eviction practices to ensure that they are complying with the law. Evicting tenants in violation of the CDC Order, 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 under the Fair Debt Collection Practices Act and the Federal Trade Commission Act.” So, at a minimum, a faulty notice could be grounds for a dismissal of the eviction, and, at worst, investigation and sanction by the CFBP.

ALL NEW Landlord Boot Camp On Demand Available

Hello. I am excited to announce that my latest Landlord Boot Camp — recorded November 13, 2021 — 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 Landlord Boot Camp in-person 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.

If there is a landlord in your life and you just don't know what to get them for the holiday's consider giving them the gift of education with Landlord Boot Camp On Demand.

https://petriepettit.com/landlordbootcamp

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.etrie

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.

Just Announced: New Live Stream of Landlord Boot Camp on November 13, 2021

CDC Eviction Moratorium Struck Down By U.S. Supreme Court

Late Thursday, August 26th, the U.S. Supreme Court struck down the CDC's latest version of the Eviction Moratorium which was set to expire on October 3, 2021. The Supreme Court's conservative majority stated that the temporary eviction ban exceeded the CDC's authority to combat communicable diseases, which resulted in landlords' having to bear the pandemic's costs, much to their detriment. 

The Court wrote that "The moratorium has put . . . millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery.  Many landlords have modest means.  And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership - the right to exclude."

The Court again reiterated that such an eviction ban would need to come from Congress via legislation not the President or one of his agencies.

So what happens now?

We move forward and wait to see if Governor Evers issues his own eviction moratorium in Wisconsin like they have done in New York and California.  I assume that he will.

We also will have to wait and see what each Wisconsin county does in response to this decision.  During the short period when there was no federal moratorium in early August, for instance, Milwaukee County Circuit Court while granting evictions for non-payment of rent, still added a 2 week "stay" without basis with regards to executing the writ with the Sheriff.  I anticipate we will see something similar again. I should find out shortly as my firm has several cases this afternoon.

Below is the press release from the AASEW regarding the Court's decision, cautioning landlords from immediately filing for eviction if the tenant truly has been impacted by COVID-19 and if the landlord wants to be able to recoup the past due rent. 

For Immediate Release
Re: US Supreme Court Orders An End to the CDC Eviction Moratorium
The Apartment Association of Southeastern Wisconsin (AASEW) has the following observations about yesterday’s decision by the US Supreme Court which ended the CDC eviction moratorium.
• Little should change with or without the CDC moratorium. It remains in the owners’ and renters’ best interest to work together to get the Emergency Rental Assistance funding. The only reason to evict for nonpayment at this time is if the renter refuses to apply for ERAP or does not qualify due to no loss of income. In Milwaukee or Waukesha Counties, renters and owners can apply at Community Advocates. City of Milwaukee residents can also apply at SDC.
• The statewide WERA program under the guidance of the Dept. of Administration in Madison is doing a very competent job in getting rent assistance out promptly in smaller municipalities.
• Contrary to dire predictions by tenant advocates, there will NOT be a “tsunami” of eviction filings in Wisconsin or in most parts of the country. There will NOT be 11 million people suddenly made homeless.
• Local housing providers have shown great patience since the CDC moratorium first went into effect in September 2020. The most recent data show that eviction filings are down 47% in Milwaukee County since the moratorium began. Filings could increase to normal levels, especially considering that some renters have paid no rent at all.
• The AASEW has urged our members and all landlords to abstain from filing a case in court and to try mediation first, where available.
• The AASEW is a partner in Milwaukee’s Rental Housing Resource Center, which has gotten national attention for its unique work in creating a coalition of housing providers, tenant advocates such as Legal Aid and social welfare agencies. All of these partners continue strong efforts to get rental assistance paid and to avoid evictions whenever possible. Many millions of dollars in rent relief are still available.
• People who are vaccinated against the coronavirus have strong protection against the Delta variant compared to those who aren’t. Any renter who faces a possible eviction should certainly get vaccinated immediately, especially now that the Pfizer vaccine has been fully approved.
• False narratives have been promoted by national tenant advocates. Landlords almost never evict a tenant who is only a few hundred dollars behind on rent. The average eviction judgment for unpaid rent in Wisconsin is over $2600. Only 2.5% of eviction judgments are ever paid.
• The Eviction Lab of Princeton University has launched a harmful campaign via Twitter which tells tenants that their first priority is to “fight” their landlord in court. The AASEW does NOT recommend a combative approach to landlord-tenant relations. Instead tenants should first call their landlord and then apply for rent assistance.

For further information contact
Atty Heiner Giese, AASEW Legal Counsel, hgiese@ameritech.net
Tim Ballering, AASEW Board member, tim@apartmentsmilwaukee.com
Atty Tristan Pettit, AASEW Board member, tpettit@petriepettit.com

Petrie + Pettit Welcome Attorney Gary Koch to its Landlord-Tenant Law Team

I am excited to announce that Attorney Gary Koch has joined the Landlord-Tenant Law team at Petrie + Pettit starting August 30th.

With nearly 20 years of experience, Gary D. Koch joins the Petrie + Pettit S.C. team to assist primarily with its Real Estate Law practice group, focusing on landlord-tenant law. Attorney Koch has represented landlords for over 10 years, has spent his career handling debtor and creditor matters, and is well versed on all facets of landlord/tenant law. He is licensed to practice in all Wisconsin state courts, the Eastern and Western District of Wisconsin Federal Courts, as well as the 7^th Circuit Court of Appeals.

Attorney Koch graduated from the University of Wisconsin Law School after earning his B.S. at Indiana University. Outside of work, he enjoys cycling, photography and finding new adventures with his family (wife, two kids, dog, cat and lizard).

Please join me in welcoming Gary to the team.

CDC Announces A New, Temporary, Limited Eviction Moratorium Through October 3rd for Counties With Substantial and High Rates of Covid Transmission

Well that didn't take long.  Not even two full business days after the CDC's Eviction Moratorium ended and now we have another moratorium in place.  

On Tuesday, August 3, 2021 at the direction of President Biden, the CDC announced a new, temporary, limited federal eviction moratorium through October 3, 2021. This new Order is limited to counties that have a substantial or high rate of community spread of Covid.  This covers counties such as Milwaukee, Dane, Waukesha, Ozaukee, Racine, Eau Claire, and Dodge counties, to name just a few.  

So what does this mean?

The bulk of the new Order is the same as the old order.  It only prohibits the filing of eviction actions for the non-payment of rent if the tenant completes and provides the housing provider with a written declaration.  If you would like to learn more about the basics of this new eviction moratorium Order please refer to my prior blog post on the earlier moratorium .  

Below is a summary of some of the new aspects of this more targeted eviction moratorium.

1. The new Order only applies to US Counties experiencing substantial and high levels of community transmission levels of SAR-CoV-2 as defined by the CDC, as of August 3, 2012.

2. If a US county that is not covered by this Order as of August 3, 2021, later experiences substantial or high levels of community transmission then that county will become subject to this Order. 

3. If a US county that is covered by this Order no longer experiences substantial or high levels of community transmission for 14 consecutive days, then this Order will no longer apply in that county, unless and until the county again experiences substantial or high levels of community transmission. 

4.  Any evictions for nonpayment of rent initiated prior to the issuance of this Order but not yet completed, are subject to this Order. 

5. Any tenant, lessee, or resident of a residential property who previously submitted a Declaration, still qualifies as a "covered person" and who is still present in a rental unit, is entitled to protections under this Order. 

6. Any eviction that was completed before the issuance of this Order including from August 1 through August 3, 2021 is not subject to this Order, as it does not operate retroactively. 

7. This Order does not preclude a landlord from challenging the truthfulness of a tenant's declaration in court, as permitted under state or local law. 

8. This new Order is effective as of August 3, 2021 and will remain in effect through October 3, 2021.

I'm sure that many of you are saying to yourselves, "But, I thought the US Supreme Court already stated that the CDC overstepped its statutory authority when it ordered the prior federal eviction moratorium?"  That would be correct, but arguably since this Order is more narrow and only applies to counties with substantial or high community spread, the CDC will argue that the prior Supreme Court decision is not applicable to this new Order.  Furthermore, I'm certain that any new lawsuits filed against the CDC with respect to this new Order will take longer than October 3, 2021, when the new Order is supposed to end, to get through the court system and back in front of the US. Supreme Court.

As I said in earlier blog posts, this is nothing but kicking the proverbial can down the road.  It still does not solve any of the underlying issues.  With this new Order not only has the can been kicked a little further down the road, but the can has now made a turn around the corner, and is starting to go down yet a different road.  

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.