In the past 30 days 2506 notices were generated. In the 30 days preceding that 1904 notices generated. The number of unique visitors was up 15.5% from last month, while the number of forms printed were up 24%

May 6th and May 11th were the two highest volume days ever.

So is this an indication that tenants are having more trouble paying rent or just more owners using the site? I do not know.

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Here is Tristan’s letter describing the event.

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There are three basic methods to properly serve a notice. Do it wrong and lose the eviction case.  The proper ways to serve the notice are:

Proper methods of service are defined by Wisconsin Statutes §704.21

1. Personal delivery to someone at the premises (sometimes also requiring sending the notice by regular mail)
2. Service by certified mail
3. Service by tacking the notice on the door and mailing

Tip: Service of an eviction notice on one tenant counts for service on all of them (for example, you serve one of four roommates who share an apartment). See §704.21(4)

Potential Problem: This does NOT apply to service of the eviction summons, where you need to serve all the tenants personally if you want to get a money judgment against each of them.

Potential Problem: Service of the summons and complaint, which will be discussed later, has different requirements.  Don’t get confused

Tip: You can hire a professional process server to deliver the notice to the tenant. This saves you from potential confrontation and usually eliminates errors in service. These services are listed in the yellow pages and in the AASEW member directory.

Shameless Self Promotion: EasyEvict.com, one of our company’s services, provides process service in Milwaukee County for $25 . You can fax or deliver the papers to us and even do the entire process on line.  Do evictions while sitting at home wearing you pink bunny slippers;-)

Personal Service

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Personally handing the notice to the tenant is the most common method. This is not always practical because of safety concerns or because the tenant is hiding from you. The Wisconsin statutes allow you to make in person service of the eviction notice as follows:

1. Give a copy to one of the tenants.
2. Give a copy to a family member at least 14 years old, telling them that this is an eviction notice.
3. Leave a copy with an occupant (e.g., the boyfriend of the tenant) and also mail a copy by regular mail to the tenant
4. Leave a copy with a “competent person apparently in charge of the rented premises” and mail a copy by regular mail to the tenant.

Tip: ANY of the above 4 methods of personal delivery can be used. You don’t have to use “reasonable diligence” by trying to catch the tenant herself at home. For example, you arrive to deliver the eviction notice, the boyfriend says the tenant is shopping and will be home in an hour and you should come back. You can simply serve the boyfriend, tell him what the notice is and drop a copy of the notice in the mail that day. Do it the same day, otherwise the day of mailing counts as the effective day notice was given.

Tip: Many owners find personal service provides the best results as far as collecting or getting the tenant to move on their own. People who are behind on rent may avoid contacting you out of embarrassment. Or, you may find the unit vacant when you go to serve the notice.

Tip: Make sure that the person the notice is given to is a family member or is actually in control of the premises. A babysitter probably does not meet the requirement, while a roommate not listed on the rental agreement meets these requirements. If you are serving on a family member make sure they are at least fourteen. Always try to get their name and make a note of it.  I had one eviction dismissed because I served a tenant’s daughter who said she was fourteen, but in reality did not turn fourteen until a week after the date of service.

Service by Certified Mail

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Potential Problem: This is only for the 5, 14 or 28-day notice. You may not use certified mail for a summons or complaint. If I’m repeating myself, it’s because it is important.

Potential Problem: If you serve the notice by certified mail you must add two days to the time period.

Tip: Many owners find service by certified mail is the easiest. It is also the most difficult for the tenant to challenge in an eviction hearing.

Tip: Often tenants who are behind on their rent do not accept the certified mail. This does not affect your ability to evict. The law requires you to send the notice, it does not require you to prove that the tenant accepted the notice. For this reason we do not use a return receipt as it could raise an issue in court that is not relevant.

Tip: It is also helpful to mail an additional copy by regular mail at the time that you mail the certified copy. This is not required but anything that makes the tenant aware the eviction process has started could prevent the trouble and expense of a court eviction. A lot of people who are having financial problems don’t pick up their certified mail. Tenants that know they are about to be evicted often try to get current on their rent or move on their own, saving you the cost of an eviction.

Post and Mail

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If all else fails and you have used reasonable diligence in attempting to personally serve the tenant, a family member or occupant or person in charge, you may staple or tape the notice to the door and mail a copy by regular mail to the tenant.

Tip: Be sure you mail on the same day as you tack the notice to have that day count as the date of service.

Potential Problem: What is ” reasonable diligence”? Every court commissioner and judge has a slightly different definition. Three attempts at service over three days at three different times is usually a safe bet.

A Final Tip: If the tenant actually received the notice even though you didn’t properly serve it (e.g., you gave it to the 12 year old son) then the notice is effective as of the day the tenant actually got it, but you have to prove this by “clear and convincing” evidence. See §704.21(5)

DIY Eviction Series:

• Overview
• Select the Proper Notice

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I am once again in the process of updating the instructions to fit the changes that have occurred over the past couple of years  years.  While at it I am consolidating everything on a new server and this site.

So over the next couple of weeks I will have the series updated and posted here.  You can subscribe to the RSS feed to be notified as they are posted.

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Collections & Evictions Overview

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Disruptive tenants only get worse the longer they are allowed to act poorly without intervention. A tenant who is falling further behind in their rent is less likely to be able to pay off their balance as time goes on. Owners who succeed address the problems quickly.  Either the tenant resolves it, moves or the owner evicts.

The problem for a lot of owners is they are intimidated by or unsure of the process.  Here is an overview / outline

• All eviction actions begin with a properly served notice to vacate. In Wisconsin the most common notices are the 5-day, 14-day and 28-day notices. If you use a rental agreement or lease with a longer notice period the 28-day notice is replaced by a notice with the length of time contained in the lease or agreement, often 45 or 60 days. The type of notice you will use depends on the reason that you wish the tenant to vacate and the type of rental agreement that you have with the tenant.
  In a future posts will delve into details such as which form to use.  Todays post is just an overview/outline of the eviction process in Wisconsin.
• After service of the notice it is important to attempt to discuss the problem and possible resolution with the tenant. Physical eviction is expensive for the property owner and unpleasant for the tenant. If it can be avoided so much the better for all, but be careful not to be taken advantage of by tenants who make promises they have no intention of  keeping.
• Once the notice period has expired and the problem isn’t solved, it is time to begin the eviction. This is done by completing the required paperwork, filing these papers with the court and properly serving the tenant. The court fee is $99 and typical fees for serving the paperwork is $15 to $40.
• If you own the property individually you can appear in court yourself.  If you own the property in an LLC or corporation you will be required to have an attorney or full time employee of the entity appear.  A member of an LLC is not considered a full time employee by the courts unless you take your pay as wages, which few owners do.
• At the first court hearing you should receive an Order for Writ of Restitution (a court order for the Sheriff to remove the tenant) . The court  may “stay” the writ for a week or two. You can either take judgment for the money amount at this hearing or schedule  a “second cause” money judgment hearing. Since the tenant has not vacated, it will be difficult to assess the total damages you have suffered. For this reason you may wish to return to court for a second hearing at a later date. This choice is based on 1) you and the tenant agreeing to the amount owed and 2) if you believe you will be able to collect from this tenant and it will be worth the time.
• After you have the order for the writ you must  purchase a Writ of Restitution from the Clerk of Courts for $5 and complete the Writ of Restitution form.
• You are required to hire an approved mover who may require a deposit of $300 to $400. The mover provides you with a letter of intent.  The Sheriff will not accept the eviction without this letter.
• You then give the Milwaukee County Sheriff the Order for Writ, the Writ, and the letter from the mover along with a check for $130. The Sheriff will move the tenant within 10 days.

There are a number of potential errors you can make that can delay the eviction. But, don’t fall for the urban myths. Evictions can occur year round, including winter.  Christmas and other holidays only slow an eviction by a day or two.

Shameless Self Promotion: Like so many other things in life, doing it yourself is sometimes far more expensive in time and aggravation than hiring the work out.  Check prices and services offered by your attorney or if you are in Milwaukee County, take a look at the $249 Easy Evict eviction offered by our company.

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Can I evict for non-payment if I received a city order on the property or is this considered a retaliatory eviction?  The tenant is a month and a half behind in rent payments.

The Milwaukee retaliatory eviction ordinance and Wisconsin Statute do not apply to evictions for nonpayment.  So as long as the tenant is not paying the city under rent withholding you may evict.

Milwaukee Code of Ordinances 200-20.7:

EVICTIONS. No lessor of commercial or residential property shall take retaliatory action toward any lessee who reports building code violations existing on or about the premises by raising rents unreasonably, or by curtailing services or by eviction. It shall be a rebuttable presumption that any attempt by the lessor to initiate any of the aforesaid actions within 6 months of notification of the violations to the commissioner is in violation of this subsection, except that nonpayment of rent or commission of waste upon the premises by the lessee shall be a basis for eviction.

State Statute § 704.45

Retaliatory conduct in residential tenancies prohibited

(1) Except as provided in sub. (2), a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises, refuse to renew a lease or threaten any of the foregoing, if there is a preponderance of evidence that the action or inaction would not occur but for the landlord’s retaliation against the tenant for doing any of the following:

(a) Making a good faith complaint about a defect in the premises to an 
elected public official or a local housing code enforcement agency.

(b) Complaining to the landlord about a violation of s. 704.07 or a 
local housing code applicable to the premises.

(c) Exercising a legal right relating to residential tenancies.

(2) Notwithstanding sub. (1), a landlord may bring an action for 
possession of the premises if the tenant has not paid rent other than 
a rent increase prohibited by sub. (1).

(3) This section does not apply to complaints made about defects in 
the premises caused by the negligence or improper use of the tenant 
who is affected by the action or inaction.

Note: I am “just a landlord,” and NOT an attorney.  If you need legal advice or have appendicitis, don’t rely on something you read on the internet to do it yourself.  Rather, hire a competent professional.

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Our staff immediately noticed two problems with the notice that would cause the eviction to fail:

1. The owner listed late fees on the notice
2. She had used an older “fill in the date” 5-day notice. The date she entered was five days after the day she mailed it certified.

I had to call the owner and tell her she needed to start over with a new five day. She was upset and said this was the last financial straw – she is ready to walk away from the properties.

While hopefully she rethought this, it reminded me of the need to post these changes again so the rest of us do not make the same mistakes.  So what are these are  changes …

Changes / Correction in Milwaukee Eviction Procedure since March 1st, 2009.

• If you use the old “fill in the date” style 5-Day notice and have the wrong return due date your case will be dismissed. For example you wrote the notice out on the 10th with date of the 15th but do not serve it until the 11th because the tenant was not home your case will fail.If you mail it certified on the 10th it will fail, because you must add two days for mailing. (The court used to allow the eviction to proceed if the owner waited the proper time before filing.) The new style notices avoids this problem by using the phrase “within 5 days from service hereof” This notice is available on the AASEW website.
• If you include late fees, damages, utilities or security deposit on your 5-Day (assuming a month to month) your case will fail. A 14-Day notice would be proper.
• However if it is a year lease then you must use a 5-Day breach notice and a 14 Day would fail. Just because the charge is on the lease the tenant signed, it does not mean the charge can be included on a five day.
• Milwaukee County Eviction Commissioners are dismissing or modifying cases if the owner’s name on the summons does not match the city treasurer records. For example if you have a management entity separate from the property ownership you may not evict in the management entity name, but rather the owner as registered with the county..
• Prior to August the court would allow a member of an LLC or a full time employee of an LLC to appear for the LLC without an attorney. Beginning in August they are requiring LLCs to appear by attorney or full time employee. Their definition of full time employee is a person on payroll who is employed by the property ownership entity. Most LLC rental property owners do not take their income as wages, but as dividends.

Are these changes legal?

All of these recent changes have some basis in law. However there are two areas which the Court bends the rules to the detriment of the owners

Stays on Eviction (giving the tenant extra time to move)

One the largest discrepancy between procedure and statute, the application of stays of eviction. Basically under the statute if the plaintiff complies with all of the rules the tenant should be immediately evicted. The Court may grant a stay of up to thirty days conditioned on the tenant paying all past and current rent through the last day of the stay as required by 799.44(3) [copy below].

Currently the court allows tenants to stay in the property without paying past and future rent.  Milwaukee County Court has a two decade old “tradition” of allowing at least two day stay per child. I question if the court’s policy of “two days per child” also violates state and federal fair housing laws which prohibit treating people different based on family status.

In the past when reminded about the statute on stays the Commissioners would agree that the stays without payment were contrary to statute, but then quickly added that owners would not be happy either if the statutes were strictly followed in eviction cases. We understood this quid pro quo and never pushed the stay issue.

Since March the court has decided it wishes to strictly follow the statute as it applies to owners. Likewise it is now time that the court stops ignoring the statute prohibiting stays without payment of past and future rent.

Statute requiring tenants to pay all past due rent and charges prior to receiving a stay

799.44(3) Stay of writ of restitution. At the time of ordering judgment, upon application of the defendant with notice to the plaintiff, the court may, in cases where it determines hardship to exist, stay the issuance of the writ by a period not to exceed 30 days from the date of the order for judgment. Any such stay shall be conditioned upon the defendant paying all rent or other charges due and unpaid at the entry of judgment and upon the defendant paying the reasonable value of the occupancy of the premises, including reasonable charges, during the period of the stay upon such terms and at such times as the court directs. The court may further require the defendant, as a condition of such stay, to give a bond in such amount and with such sureties as the court directs, conditioned upon the defendant’s faithful performance of the conditions of the stay. Upon the failure of the defendant to perform any of the conditions of the stay, the plaintiff may file an affidavit executed by the plaintiff or attorney, stating the facts of such default, and the writ of restitution may forthwith be issued.

Stipulated Dismissals

For the past half dozen years the Court increasingly encourages evictions to be dismissed with a stipulation that the tenant either pays by a certain date or vacate by a certain date.  If the tenant does as agreed the eviction shows as dismissed, thereby tricking future landlords into believing they were not evicted.

In fact some commissioners almost force the use of a stipulation rather than a stayed writ.  However if you have followed all the rules then the court must give you the writ, rather than a stipulation.  Don’t worry if you haven’t followed all the rules the Court will dismiss your case and you will have to start over.

A future problem with stipulations is the recent legislative assault on CCAP (court records) access that if passed, will hide stipulated dismissals.  This will allow both none paying  and disruptive tenants to be able to hide their histories from prospective landlords.

Note: I am just a landlord, and NOT an attorney.  If you need legal advice or have appendicitis, don’t rely on something you read on the internet to do it yourself.  Rather, hire a competent professional.

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