Just A Landlord

Over on the ApartmentAssoc YahooGroups email list a member asks:

I heard that a very large rental company in the area has a Non Standard Rental Provision included with their Rental Agreements that lists each item to be cleaned and how much the tenant will be charged per item if they are not clean upon vacating.

Is this legal?

My reply:

Assuming WI and assuming we are talking about normal cleaning and not the house that was left with dog manure on the living room carpet:

There are actually  three questions presented:  First is it okay to charge a tenant for routine cleaning; Is a list of liquidated damages legal and if so; Can you take these charges out of a security deposit.

It seems pretty clear that you can have a lease that requires a tenant to return the property in the same state of cleanliness as they received it.  A list of charges for cleaning is probably legal.  BUT I do not believe you can take those charges out of a security deposit.  Therefore you would have to give them back the deposit and then sue them for the cleaning if they did not pay.

ATCP 134.06 (3) (c) “This subsection does not authorize a landlord to withhold a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.

Note: For example, a landlord may not withhold from tenant’s security deposit for routine painting or carpet cleaning, where there is no unusual damage caused by tenant abuse.”

In other areas of the country liquidated damages in residential leases are legal and customary.  I believe that liquidated damages can be a benefit to both parties.  For example in FL the standard one year residential lease has a two months rent clause as liquidated damages for early termination.   There is no arguments over whether the landlord tried hard enough to mitigate the loss and there is no risk to the tenant that they could be on the hook for 11 months rent due to a job change.

This all changes if the cleaning necessary reaches a level of being “waste”.  Then you are entitled to double damages.  The case on waste is:

Three & One Company v. Geilfuss, 178 Wis. 2d 400, 504 N.W.2d 393 (Ct. App. 1993), the Wisconsin Court of Appeals found that tenants who allowed their cats to use the unit as a litter box committed waste. If waste is found the owner is entitled to double the damages pursuant to Wis. Stat. § 844.19.

Law on deposit withholding:

http://docs.legis.wisconsin.gov/code/admin_code/atcp/134/06/3?view=section

Liquidated damages

http://en.wikipedia.org/wiki/Liquidated_damages

(Read about the law here)

Not sure what it means to you as a landlord?  Do not miss one of the most important Apartment Association meetings of the year!

Tristan Pettit, Heiner Giese, Bob Anderson of Legal Action of Wisconsin  and others will discuss the changes in the law and what it means to you as a landlord and how to be compliant.

When:   Monday June  18th 7 PM

Where:  The Best Western, 1005 S. Moorland Road, in Brookfield

Who: AASEW Attorneys Tristan Pettit and Heiner Geise along with Bob Anderson, a tenant advocate attorney to present an opposing view.

Cost:  Free to current AASEW members, $25 to guests, or $59 with a 2012 AASEW membership included.

The focus of the meeting will be on Wisconsin’s new Landlord Omnibus Law (Act 143).  We will have two landlord attorneys (myself and AASEW attorney Heiner Giese) and one tenant attorney (Bob Andersen of Legal Action of WI) on our panel.

We will discuss the major changes to the law, give our opinions as to how those changes will be interpreted by courts, and advise you as to what you will need to do to be in compliance with the new law.  Oh yeah . . .  and we will also answer your questions.

And you will get FREE food as well.

The meeting will be held at the Best Western Hotel located at 1005 S. Moorland Road in Brookfield WI.

Cost to attend is free to members of the AASEW and $25 for non-members (or choose to become a member and pay only $59 and avoid the $25 fee).

It should be a great evening of discussion and education.  I hope that all of you can attend.

Wisconsin’s Act 143 Landlord Omnibus bill has been of great concern to owners that have read the content as well those who have read the Legislative Council memo on the bill.

AASEW Attorney Heiner Geise had researched this a bit and came to the conclusion it is not quite as bad as originally thought.  He received an opinion consistent with his view from the Leg Council.

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The following is a pretty good overview of the new law from Margit Kelley, Staff Attorney at the WISCONSIN LEGISLATIVE COUNCIL   The Legislative Council is a nonpartisan research agency of the Wisconsin Legislature.

Read their full analysis

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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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