Just a Landlord

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.

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

In the past week I have had three owners ask about pools.  First, let me say this is much better than the questions about ice dams that we get most of the year.  😉

If your lease is silent on pools, you may use the Wisconsin state law that requires your tenant to comply with local housing codes.

§707.07(3) (c)  A tenant in a residential tenancy shall comply with a local housing code applicable to the premises.

Milwaukee Ordinance define the requirement for pools, starting at 75-20-5

“PERMIT REQUIRED. In addition to the requirements of ch. SPS 390, Wis. Adm. Code, no person shall construct, install, enlarge, establish, maintain or make any alteration to any public swimming place or any outdoor private swimming place without a pool construction permit issued by the commissioner.”

If your tenant is a month to month you must give them a 14 day termination.  I suggest if they were otherwise good tenant that you include language such as “We will vacate this notice only if you remove the pool within 48 hours conditioned on not reinstalling a pool in the future without first obtaining all permits and complying with all City regulations”.   Attached a copy of the Milwaukee pool regulations.

If you use a year lease you must give them a 5 day breach notice, allowing them 5 days to remove the pool or be evicted.

Why are owners against pools, don’t they want the tenants to enjoy summer?  Pools are dangerous even when installed with proper fencing etc.

• An average of 3,533 fatal unintentional drownings (non-boating related) annually in the United States
• About  one in five people who die from drowning are children 14 and younger.
• For every child who dies from drowning, another five receive emergency department care for nonfatal submersion injuries.

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/

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.

For most of my career I felt strongly that M-T-M was the only way to go if your tenants were lower income.  About a year ago I rethought this.  Okay I constantly rethink a lot of things we do on nearly a daily basis, it’s called optimization,  but this time we did a trial test of year leases.  I feel a lease for a term may be best in today’s environment, but have not recommended it across the board for other owners we work with.

My argument against year leases was that you could not compel them to pay the lost rent for the balance of the lease if they skipped out, yet had to keep the tenant to the end of the lease even if you would prefer they were gone.   The exceptions of course are nonpayment and documentable lease violations.   With a month to month it is 28 days without cause and 14 days with cause- no right to cure, speeding the process..

The following are possible advantages of using a year lease even if your tenants are marginally collectable at best:

Screening:  Tenants that refuse to sign a year lease because they don’t plan on being at one address that long are not worth renting to.

Collections: In a M-T-M  a 5 day can only be for rent due, not for other unpaid charges.  With a lease the 5 day can include unpaid deposit, late fees, utility charges etc.

Bad behavior:  In a M-T-M you can use a 14 day with no right to cure.  This does not lessen your burden of proof and does not make the 90 pound pit bull “puppy” leave any faster.  In fact it often causes the dog to stay for the remained of the tenants’ occupancy.  You can also give a 28 day notice without any reason (or 30 or 60 if that is what you have in your written agreement.)

In a year lease you can use a 5 day.  Sure they have the right to cure, but if the same breach occurs again with in the lease period you get to use a 14 day with no right to cure.  The five day has sped up the resolution of some issues tremendously.  Take the pit bull example. If the dog is gone within five days, never to return – great.  If on day 6 the dog is still there you can file with the court.  This can calm the other tenants and neighbors quicker because you seem more on top of the situation.

Yes, the tenant can argue that the breach did not exist.  They could argue  that with a 14 day notice under a M-T-M as well.  That is why using a 28 day without cause was a method that worked for M-T-M.  But you really do not want to be evicting willy nilly anyways.  That makes you look bad and harms your bottom line.  So adequate proof is not necessarily a bad thing.  Plus if you find a dog on April 4th and decide to give the tenant a 28 day rather than duke it out with a 14 Day you have to put up with them until May 31st and then file an eviction on June 1st if they are still there. So it could be late June when they are finally gone.   With a lease you could be in court as early as 18th or 19th

For me today it is use the year lease and document, document, document any breaches.  Then, if you need to go to court to evict be prepared to some sort of stipulation.  In the dog example you may wish to give them a move out that coincides with the last day of the month conditioned upon them keeping the dog elsewhere for those 12 days and paying the rent.

If the legislature gives us the same 5 Day rights under a M-T-M as we have under a year lease I may reconsider the use of leases, but I am not sure as I feel pretty strongly today that it is a bad sign if a tenant is unwilling to sign up for a year.

Ideally the legislature will also give us the right to use crime free addendums again.  That will help owners deal more proactively with disruptive behavior problems

The Wisconsin Landlord Tenant Law Omnibus bill was signed into law by Governor Scott Walker around 4 PM March 21st, 2012.  You must be in compliance with the provisions for tenancies  entered into beginning April 1st.

One thing the bill does is add a new prohibited lease provision:

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I was looking over the web stats for the free online Wisconsin eviction forms provided by the Apartment Association of Southeastern WI

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.

Attorney Tristan Pettit is presenting the Landlord Boot Camp again this February.  Prior Boot Camps were very well received, with positive feed back from all that attended

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After reading the “5-Day, 14-Day or 28-Day, Which notice do I use?” post, AASEW Attorney Heiner Giese suggested I should have used a more visual approach.  As usual Heiner was right.