Feb 28

Yesterday I wrote about 2016 revision to the Wisconsin Landlord Tenant Law.  Over on FaceBook Brian Peters, whom I respect, responded.  I thought the discussion warranted bringing it over here for those who do not follow me on FaceBook.

Brian Peters Unfortunately, those changes, along with other changes in past, allow for abuses by bad landlords. Which is why I’ve been calling them the Slumlord Protection Acts.

For example, you mentioned drugs. I doubt people who do “white collar” crimes will find themselves tossed out. This will impact some people more than others.

This provision is also dangerous as it makes it easier for a landlord’s prejudices to come into play.  

Finally, do you really want landlords to be in that position? You once told me about how community prejudices would cause calls to building inspectors. Do you really want calls from neighbors claiming they saw suspicious activities and demanding you evict the person?

My response to Brian was as follows:

While you and I often agree on many issues, I think you have this one wrong.   

The notion that landlords enjoy or profit from evictions is a myth perpetrated by those with a bias against landlords or rental housing.  The typical eviction costs the owner at least two months rent, court fees and damage to the property. I have yet to meet an owner who enjoys the process or comes out ahead. Landlord’s prejudices, although rare today, most likely appear in the application selection process.   This law will not add to nor prevent this.
 
Owners already face demands by neighbors and city officials to evict for activity where there has been no arrest or even credible evidence that the tenant is engaged in wrong doing.  This provision will not add to nor prevent this as it is the result of the neighbors’ prejudices that elected officials willingly participate in hopes of getting reelected.  This is a nationwide issue. Google Minority Threat Theory to read many scholarly articles on this, or read the work of Matt Desmond that was based on his work in Milwaukee. Matt will be in Milwaukee for a book signing on Tuesday.  I will email you a copy of our HUD complaint.
 

The new law does not allow for eviction for use or simple possession, which actually makes it harder to evict by invalidating the Cobbs case, which permitted eviction for simple possession or use in Section 8 Housing 

The change in the law however allows owners to act when there is a major problem.  I would expect that you would want an owner to address rampant drug dealing or the violent person next door to your home.  This change allows that to happen easier, but contains protections for the tenant.

One change included that I wanted is the one that permits the use of 5 Day notices to address lease violation in month to month tenancies.  The law, as it was, only permitted the use of a 14 Day termination without the tenant having the right to cure when a month to month tenant violated the rental agreement.  Now we can give the tenant a 5 Day to address things like the pit bull they brought home.  If the tenant removes the dog, then they cannot be evicted and everyone wins.
Brian replies:

How does it benefit the tenant to not have the opportunity to cure the violation?

I was imprecise with my language earlier, BTW-good that you clarified it for anyone reading this.

Tim:

You have this backwards. The new law ADDS a right to cure notice for month to month breaches where none existed before.

We championed the addition of the right to cure notice because our industry wants to avoid evictions when possible, but we also want disruptive removed as soon as possible if they will not make the correction. Remember all evictions are costly to both landlord and tenant.

Brian:

I realize that. I guess you see the bad tenants while I see the bad landlords so we both have our perspectives.

Tim

Actually I see very few bad tenants. While some fail due to economic fragility, I would not call them bad. Out of approx a thousand tenants last year, it looks like we evicted 7 during the year that would be considered bad.

Tenants and landlords need each other just as Clownfish and anemones need each other. A quick view of this is at the post: The enemy of my customer is…. Of course it is more complex than that.

Both sides need to be careful not to be played by people who try to create strife between us only due to their dislike of tenants for reasons unrelated to housing.
Sep 08

A five day notice for payment is a “pay or quit” or right to cure. If the tenant presents the full amount within the five day period the notice is void.  Remember if you serve via certified mail, you must add two days.

The law changed with 2013 ACT 76, effective in March 2014.

799.40 (1m) Acceptance of rent or other payment. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed solely because the landlord accepts past due rent or any other payment from the tenant after the termination of the tenant’s tenancy serving notice of default or after commencing the action.

If the tenant pays a portion but not all the rent due, the notice is probably valid.  The tricky part here is if you the tenant felt that you agreed to waive the notice if they made the partial payment.  This turns into ‘he said, she said’  To avoid that issue we have the following at the bottom of our notice:

“Non Waiver: If you make a  payment  of less than the $xxx.xx required by this notice, you will still be in default and SUBJECT TO EVICTION  unless the Owner agrees in writing to cancel this notice.”

Our system also prints the following on receipts of tenants with active five days:

“Non-waiver: This partial payment will be applied to past due rent owed and that by accepting same owner is not waiving his right  to proceed with an eviction based on the 5-Day notice dated xx/xx/xxxx unless tenant enters into a written payment agreement for the balance and owner agrees in writing to vacate the notice.”

Just because you CAN do something doesn’t mean you SHOULD.  Don’t be a jerk about it.  If the tenant owes, let’s say $900, and pays, let’s say $820, with a promise to pay the balance with next month’s rent and you quietly accept the money and then file the eviction that would meet my definition and probably the Court Commissioner’s definition of being a jerk.  Court Commissioners can find some pretty creative ways around jerks. 😉  However in the same scenario the tenant gives you $200 and promises to be back on Friday to pay the balance on Friday and fails to, then by all means evict.

Finally the reader asked about payment in full of rent and late fees.   The law does not currently permit late fees on five day notices for month to month tenants and inclusion of those on a five day will cause the eviction to fail in some counties.  The Apartment Association is working to change this law in the current session.

Mar 12

The Housing Authority, with support from the Apartment Association wins an important decision on eviction for drug activity.

The Apartment Association of Southeastern WI  filed an Amicus Curiae ( legal-dictionary.thefreedictionary.com/amicus+curiae ) brief in support of the City Housing Authority.   

The brief filed was jointly on behalf of the Apartment Association and the Wisconsin Association of Housing Authorities was drafted by AASEW attorney Heiner Giese.  It is a fun read:

A. Hard Cases Make Bad Law

We start with a disabled 62 year old public housing tenant in the City of Milwaukee. He was perhaps smoking a bit of weed in his own apartment, doing it quietly, and when the security officer knocked on his door to ask, “What’s that smell?” he understandably didn’t let the officer in. And for this small, albeit criminal transgression (we are in Wisconsin, not Colorado!) his Housing Authority landlord serves him with an eviction notice.  

The Wisconsin Supreme Court writes:

Tenants will have an incentive not to use illegal drugs in the first instance if they can be evicted for, and given no right to cure, drug-related criminal activity. The potential to be evicted for any drug-related criminal activity, including a first offense, provides a powerful incentive to avoid such activity. See Rucker, 535 U.S. at 134 (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 14 (1991)) (“Strict liability maximizes deterrence . . . .”). By contrast, if a landlord were required to give a “free pass” on a tenant’s first drug offense, tenants would have little incentive not to use illegal drugs because if they are caught, they can just promise not to do it again. For the other tenants of the building, this after-the- fact promise is far from a remedy for completed criminal activity and “‘stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'” See Barnett Bank, 517 U.S. at 31 (quoting Hines, 312 U.S. at 67). The objective of Congress is to provide safe, drug-free public housing, not to provide housing that allows criminal drug activity so long as the offender promises not to do it again.

  

http://www.jsonline.com/news/milwaukee/supreme-court-upholds-milwaukee-mans-eviction-over-smoking-pot-b99460952z1-296077981.html

Tim Ballering

Tim@ApartmentsMilwaukee.com

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Jan 10

Attorney Heiner Giese on behalf of the Apartment Association filed an Amicus brief with the WI Supreme Court supporting the City of Milwaukee Housing Authority in their case against Cobbs. This case was heard by the Supreme Court yesterday.

Basically the case revolves around the federal “one strike and you’re out” rule for Section 8 housing and the state of WI’s notice requirements for lease violations.  The tenant advocates did a good job in selecting a sympathetic case to proceed on.

As most of you know*, in WI you must give a tenant under a lease for a term a five day notice with right to cure for the first lease violation within the term of that lease.  This is fine if perhaps they are a bit noisy one time.  However it fails when there is a criminal act.  Justice Gableman asked the Legal Action attorney to explain how 1st Degree murder be cured as long as the tenant doesn’t do it again.

A link to the oral arguments in front of the Supreme Court is at:

http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?evhdid=9392

WI’s laws on lease violations are generally goofy.  You have to give a tenant the right to cure for lease violations including criminal acts under a lease for a term, but you are not permitted to use a 5 Day Breach with right to cure for a month to month tenant even for minor lease violations.  So when your month to month tenant has the radio too loud you have to either ignore it or give them a 14 Day without a right to cure.

One of our Association’s legislative initiatives for 2015 is to change the law to permit a 5 Day with right to cure for month to month tenants as well as allowing for a notice with no right to cure for criminal acts regardless of the length of the rental agreement.

Sep 27

The AASEW’s ever popular Landlord Boot Camp is just around the corner.  It will be held on Saturday, October 4, 2014 from 8:30 am – 5:30 pm at the Clarion Hotel located near the airport.

At this Fall’s Boot Camp I will be updating everyone on how the courts have been handling and interpreting all of the law changes since Act 76 was passed back in March of this year.

I will also address numerous other of topics that will help you navigate Wisconsin’s complex landlord – tenant laws.  Learn how to run your properties with greater profit while staying out of trouble.  Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands.

Some of the other topics that will be covered include:

1) How to properly screen prospective tenants

2) How to draft written screening criteria to assist you in the tenant 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 and why

6) When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant

7) Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134

8) When you are legally allowed to enter your tenant’s apartment

9) How to properly draft an eviction summons and complaint

10) What to do to keep the commissioner or judge from dismissing your eviction lawsuit

11) What you can legally deduct from a security deposit

 12) How to properly draft a security deposit transmittal  (“21 day”) letter

13) How to handle pet damage

14) What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit

15) How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so)

There will also be time for “Q&A” and Lunch is included!

If that is not enough you will also receive a manual that is over 100 pages that includes all of Tristan’s outlines on the various topics and various forms.

 Who:         Taught by Attorney Tristan Pettit, who drafts the landlord tenant forms for Wisconsin Legal Blank.

When:       Saturday, October 4, 2014  from 8:30 AM – 5:30 PM —- Registration opens at 7:00 AM

Where:     Clarion Hotel 5311 S. Howell Avenue, Milwaukee

Price:        AASEW Members only $159 .  Non AASEW Members  – $249

Register:    Go to www.LandlordBootCamp2014.com and you can register online and read prior attendees testimonials.

Last year’s AASEW Landlord Boot Camp was filled to capacity.  So much so we even had to turn people away.  So register early to reserve your spot.

I hope to see many of you there.

Thanks


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