Sep 12

A reader of our discussion list at ApartmentAssoc@YahooGroups.com asks the following:

I have couple questions regarding to eviction. I have given notice, which due yesterday. If the rent arrives shortly after the court paper file, Can I take the payment but still be able to go head with the eviction because I really don’t want to continue with this tenant?

My notice is for August’s rent. When I file the court paper, Am I be able to sue for August’s and September’s together?

Easy part:  At the second and third cause hearing you will be able to claim the September rent, October rent if the case drags out that long and damages and should get a judgment assuming personal service or publication of the summons.  Whether you will actually collect those amounts is often a different matter.

More difficult part:  The Statute changed in March 2012 to state that acceptance of rent after the expiration of a notice terminating tenancy for nonpayment does not void the eviction action.  I feel the statute can be read in a manner that it may only apply if you commence the action prior to taking the money.  But remember I am not an attorney, just a landlord.

Also in practice it appears that Milwaukee County Courts tend to still view acceptance of rent as an agreement to cancel the eviction.

The new law

799.40  Eviction actions.

(1m) Acceptance of rent. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may not be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant’s tenancy.

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