Oct 30

In Milwaukee the city enforces a prohibition against occupancies with more than three unrelated people.  The answer on where in the code this resides is a bit  convoluted, but this is how the city arrives at that answer:

200-08-74. ROOMING HOUSE means any  building or part of any building or dwelling unit  occupied by more than 3 persons who are not a family or by a family and more than 2 other  persons for periods of occupancy usually longer  than one night and where a bathroom or toilet  room is shared.

If you meet this requirement you must have a rooming house license.  Now if each person has a bathroom and they promise not to pee in the other person’s bathroom can you have as many occupants as bathrooms?  I would think so.

200-8-33. FAMILY means, unless otherwise specified, a person occupying a dwelling unit, or dwelling unit with one or more persons who are legally related to such occupant by virtue of being husband or wife, son or daughter, mother or father, sister or brother, uncle or aunt, grandparent, grandchild, niece or nephew, first-cousin, mother-in-law or father-in-law, all of whom comprise no more than one nuclear family unit per household. Included in the term family are 4 or fewer legally assigned foster children, except that more than 4 may be legally assigned if all are related to one another as brothers or sisters. Family also means a domestic partnership of 2 individuals who meet all conditions of s. 350-245-3-a to e and at least 3 of the conditions of s. 350-245-5

As mentioned in the last post, WI Fair Housing recognizes housing code occupancy restrictions based on quantity of people.  It does not appear to recognize  ordinances based on relationship of the occupants:

106.50(5m)(e) It is not discrimination based on family status to comply with any reasonable federal, state or local government restrictions relating to the maximum number of occupants permitted to occupy a dwelling unit.

Are you breaking state law in complying with the city code?  Who knows, but it seems like the city ordinance conflicts with the Fair Housing law.

Occupancy standards, yours or municipalities’ should be based on the number of occupants and not their relationships. There are a couple of good, interesting U.S. Supreme Court cases on the issue. Justice Marshall wrote a very interesting dissent in Belle Terre v. Boraas, 416 U.S. 1 (1974) which was prior to the inclusion of familiar status protections

The most relevant part of Belle Terre dissent:

  MR. JUSTICE MARSHALL, dissenting. 

The instant ordinance discriminates on the basis of just such a personal lifestyle choice as to household companions. It permits any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limits to two the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home. Belle Terre imposes upon those who deviate from the community norm in their choice of living companions significantly greater restrictions than are applied to residential groups who are related by blood or marriage, and compose the established order within the community.  The village has, in [416 U.S. 1, 17] effect, acted to fence out those individuals whose choice of lifestyle differs from that of its current residents. 

A more recent case is Edmonds v. Oxford House, 517 U.S. 725 (1995) also is a good read

 

 

Oct 24

A reader asks:  I have a one bedroom unit that a family of four has applied for.  Do I have to accept them?

It depends on the local housing code.  If the housing code does not permit the number of occupants, then Wisconsin Fair Housing does not require you to accept them.  The law is:

106.50(5m)(e) It is not discrimination based on family status to comply with any reasonable federal, state or local government restrictions relating to the maximum number of occupants permitted to occupy a dwelling unit.

In the city of Milwaukee occupancy standards are in Chapter 275-44  A one room unit is limited to two people.  For units with two or more habitable rooms, rooms of 70-100 square feet are limited to one person and rooms of 100 or more feet are limited to two each. Remember that the age of the person is not a factor so kids count the same as grown ups.  Remember too that the code is for  “habitable rooms” not specifically  bedrooms.

A landlord may also have their own standards, but that is a lot more dicey.

Oct 22

A reader of the ApartmentAssoc Yahoo Group questions how the new landlord tenant bill affects leases that attempt to deal with criminal activity.  The new law is:

704.44 (9) Allows the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property if the tenant, or someone who lawfully resides with the tenant, is the victim, as defined in s. 950.02 (4), of that crime.

704.44 (9) is a prohibited lease provision. Therefore a lease is void if it allows you to evict the tenant solely because of a crime that the tenant or an authorized co occupant were the victim of.   The provision was meant to be a protection for domestic violence victims.

As I read this an example would be if the tenant’s door is broken.

  • If the damage was caused by the tenant and you use your lease to evict them for the damage all is good.
  • If the damage occurred during a burglary and you attempt to evict them based on a lease provision, you would fail and possibly be in trouble. It would be wrong even without this law to evict a victim of a crime.  ‘Oh, you were robbed of your tv and radio – well now you are losing your home too because having your door broken during a robbery is a lease violation’. – bad landlord.
  • If the door was broken by the ex boyfriend that they had a restraining order against, you would most certainly be in trouble.  But that is the current law under 106.50 (5m) (dm).
  • On the other hand if the door was broken during a robbery committed by a rival drug dealer and the police report indicated that, then a lease provision such as a crime free addendum would be fine.

I agree it is not the perfect language. However this is far better than the prior prohibition against a lease that permitted you to evict the tenant for a crime they could not have reasonably prevented.

Under the new wording you can evict a tenant if they fail to exercise reasonable control of the property.   An example is if the tenant’s grandson who does not live at the property comes over and sells drugs out of grandma’s unit.  Under the current law you would have a hard time crafting a lease that would be legal and permit you to evict as a means of stopping the drug traffic because it is very likely that granny could not reasonably prevent the activity. The only answer would be wait until the Police send an angry letter about the nuisance activity.  Under the new law your lease will be able to address this because granny is not a victim.

His second question is:

What happens if a tenant gets a Disorderly Conduct ticket, or a ticket for possession of marijuana, or a ticket for… Was there a commission of a crime?

You do not have to differentiate between citations and crimes in the above.  The tenant was not a victim, they were the perpetrator of the act and therefore a lease provision that permits eviction would be valid under both the old and new law. Plus the law acknowledges that criminals are not victims of their own crimes

§950.02 (4) (b) “Victim” does not include the person charged with or alleged to have committed the crime.

However if the tenant was the victim of what could be considered a criminal act, I think you must treat the tenant as a victim regardless if the perp was given a citation or a state charge.  So if in the prior door broken by a burglar example you would be wrong in evicting a tenant even if the guy who did it only received a muni citation.

There will be more on this as a discussion of how to make the Crime Free Lease or addendum work within this new law.

Oct 21

With the passage of SB179 and the previous passage of ACT 143 a lot has changed with Wisconsin landlord tenant law.

I am trying to assemble a working group of landlord/tenant attorneys and managers with a lot of experience to create a great Wisconsin lease that incorporates the changes in the new law as well as those from ACT 143.

First if you are one of the above group and want to be a participant, let me know.

However even if you are not a landlord tenant attorney or seasoned property manager, I would like to hear of instances that you found your lease defective or deficient.

Oct 19

SB179 that passed last week requires language in your leases regarding protections under the law to victims of Domestic Violence.  While the law is not yet in effect, there is really no good reason not to include the language now.  Here is the required language:

NOTICE OF DOMESTIC ABUSE PROTECTIONS

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

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

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

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

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

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

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

You will also need to update your disposal of property language to include the new language on stuff left behind after an eviction, but that can wait until this law is in effect.

Oct 16

Late yesterday the Wisconsin Senate approved an Assembly amendment to SB 179.  This law, which should be in effect around the first of 2014, makes sweeping changes to Wisconsin Landlord Tenant Law.   The bill was a combined effort of the Apartment Association of Southwestern WI, The Wisconsin Realtors and the Wisconsin Apartment Association.

The Legislative Council Memo on SB 179 puts the changes in fairly layman terms. AASEW past president Attorney Tristan Pettit worked extensively on the bill.  He will be providing information on the changes at the AASEW Fall 2013 Landlord Boot Camp.

Highlights of the bill taken from the Leg Council Memo are, and this is my analysis of what is important and not a legal opinion by an attorney because as you know I am Just A Landlord:

Restrictions on Local Ordinances [Sections 1 to 4]

Municipalities are currently prohibited from enacting or enforcing ordinances that:

  • Imposing a moratorium on eviction actions
  • Places certain limitations on what information a landlord may obtain and use for screening.

New law adds prohibitions against ordinances that:

  • Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
  • Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
  • Requires a landlord to communicate to the municipality any information concerning the landlord or tenants unless the information is required under federal or state law or is required of all residential real property owners.

Leases [Section 18]

Under current law, if a lease is void and unenforceable if it contains a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.  [s. 704.44 (9), Stats.]

The new law allows for Crime Free Lease Addendums as long as you include  a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats.  The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking.  The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premise

 

Timing of return of Security Deposit with regard to evictions [Sections 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.  [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins.  If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction.

Service of Summons in Eviction Action [Section 22]

Allows courts to permit service of eviction summons by Certified Mail.  This will be on a county by county basis.

 

Allows LLC to appear by member or agent, rather than requiring attorneys [Section 21]

Under current law, in any small claims action, a property owned by an LLC must use an attorney or full time employee of the LLC

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent.  This provision applies to all small claims actions, not only evictions.

Disposition of Property Left on Rental Premises After Eviction [Sections 9, 10 and 29 to 46]

Under current law, in Milwaukee County, the sheriff must remove and store the tenants’ property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property.

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise.  If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement. If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Towing of Vehicles [Sections 5 to 8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued.

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued.

This final one is the most complex of the changes and requires some Administrative rules to be created.

There is also a change regarding Mobile Home Parks, but I am not impacted and therefore did not review them.

Oct 15

I am a strong supporter of both the Apartment Association of Southeastern WI as well as believing all landlords should know as much as possible about our business.  Seminars such as the AASEW Landlord Boot Camp were the foundation that I built my knowledge of rental laws upon.  I encourage you to attend this fall’s AASEW Boot Camp.

This Boot Camp may be more important for those with a good understanding of the laws as it will go into detail on what to expect when the new Wisconsin Landlord Tenant Law passes later this month.

Continue reading »

Oct 12

A reader of the LandlordAssciation Yahoo Groups asks what can they do about a Wisconsin tenant who harrasses everyone that moves in above them into moving.  The owner is using a generic lease that is silent on the subject.

In WI absent a conflicting provision in a lease, §704 applies.  In particular, for this problem §704.05 (3).

http://docs.legis.wisconsin.gov/statutes/statutes/704/05/3

704.05  Rights and duties of landlord and tenant in absence of written agreement to contrary.

(1)  When section applicable. So far as applicable, this section governs the rights and duties of the landlord and tenant in the absence of any inconsistent provision in writing signed by both the landlord and the tenant. Except as otherwise provided in this section, this section applies to any tenancy.

…..

(3) Use of premises, additions or alterations by tenant. The tenant can make no physical changes in the nature of the premises, including decorating, removing, altering or adding to the structures thereon, without prior consent of the landlord. The tenant cannot use the premises for any unlawful purpose nor in such manner as to interfere unreasonably with use by another occupant of the same building or group of buildings.

This also works to get rid of drug dealers etc if your lease does not have such a provision.  The fact that this is statutory probably gives you better footing for an eviction that simply being in your lease.

But before you rush off and draft a crafty lease of your own, remember that in Wisconsin if your lease violates one of the “Nine Deadly Sins” contained in §704.44, the entire lease is void as to the landlord enforcing it, but a tenant may enforce the remaining parts they like.

 

Oct 10

In Wisconsin rental properties must meet a minimum weatherization standard when sold after 1/1/1985.  The rules are set out in the Administrative Code SPS 367

An owner writes with some questions on these requirements:

Tim

I am selling a duplex and it is to be kept as a rental—–bought it 15 years ago

Do you have a suggestion for a re-inspection and approval?

Does the buyer or seller pay for the inspection/updating?

 

If you bought it 15 years ago it had to have been DILHR’d.  They are good for the life of the building.  All you need to do is record the cert.  Cost is $35 at the Register of Deeds at the Courthouse.

If you lost the cert you can get a recordable copy for $50 by filing out this form

To look up your property to see if it was done check the Wisconsin Rental Weatherization Database

If it wasn’t done, then either you can do it before sale or the buyer can enter into a stipulation to do it within a year of purchase.

Oct 08

Our world is full of traps for rental owners… Fail to document the deposit return letter when was sent and a $300 deposit turns into $5,000 with attorney fees. Try to be helpful and not rent the third floor walk up to a person with a bad leg and pay $10,000 in a Fair Housing claim. Likewise tell the person with the companion dog that there is no way you are renting to a person with a Pit Bull and pay another ten grand. Give the tenant with a year lease a 14 day for disturbing the neighbors and breaking your windows or the tenant with a month to month a 5 day for the same reason and you will have to start your court case all over again. The list of pitfalls is endless and growing.

So how do you collect your rent, fill your vacancies and evict tenants without getting in trouble or having expensive do-overs?

You could throw your arms in the air and give up, but that probably is not the most effective approach. You can go through life figuring these are things that only happen to the other guy or to”bad” landlords. That works for a while until you become the other guy. You could hire an attorney to be along side you for every decision, but that probably is not financially effective.

The only viable answer is to know the laws that affect us well enough to either know the answer or know when you need help. You can venture out and learn as you go through your own mistakes, usually a very expensive education – there is a reason they call it the school of hard knocks, or you can get as much education as practical before you find yourself on the losing end of a legal battle.

I started with the learn as you go method. It cost me three grand in 1982 dollars when a tenant that snuck out in the middle of the night sued for their deposit. I lost because I did not know the law well enough to make the proper argument that the 21 days did not start on the day they skipped out, but rather on the day I found they moved. So my letter sent seven days after I found a vacant apartment was proper, but laws only work for those that know them.

My next education was a Bob Smith Landlord Tenant Law course at Marquette. Much more informative and less expensive. A couple of years later Bob condensed this into a full day landlord tenant law for the Association. It cost somewhere around two hundred dollars and included his book “Landlord Defense: Eviction and Collection manual” that had most of the forms needed. For those who want to stroll down memory lane, here is a Sentinel article with a really young picture of Bob:

The Association continues to offer the best landlord tenant law course out there. The Landlord Boot Camp gives you the fundamentals in a full day Saturday class. It is updated to include the latest law changes and includes a 100 page plus manual. It is presented by Attorney Tristan Pettit who writes the standard landlord tenant forms for Wisconsin Legal Blank. Tristan also worked on SB179 that may become law later this month. If it does pass he will have an insiders view on how this law can be best utilized by owners.

The next Boot Camp is Saturday October 26th 8:30 AM to 5;30 PM. Costs is $159 for AASEW members and $249 for non-members.

Learn more or sign up at:
http://landlordbootcamp2013.com/

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