Question:  If there is a  material falsification of information provided by a tenant on the  rental application, what are your options? (Granted a good screening process should have caught it).

Once you accept a tenant you must allow them to move in, even if they  materially falsified the app. This is covered under the ATCP 134:

ATCP 134.09(6) (6) FAILURE TO DELIVER POSSESSION. No landlord shall fail to deliver  possession of the dwelling unit to the tenant at the time agreed upon  in the rental agreement, except where the landlord is unable to  deliver possession because of circumstances beyond the landlord’s  control.

An interesting question would be if they lied about who they were,  i.e. gave a false name, could you refuse to let anyone but the person named on the lease to move in?

Preventing this? Hard. If you ran a credit report, that should have show other names used. A pre-acceptance home visit may have exposed the inconsistencies and extra adult.

This one bit us in the butt a few years ago. We were evicting a woman because her two adult daughters had moved in with her and were  performing prostitution in the basement of the building. We had an applicant for a different address who we accepted. One of my managers saw the woman we accepted in the waiting room and asked what she was doing her as she was the prostitute daughter of the tenant we were  evicting from Walker street.

We refused to allow the woman to take the other unit and gave her back all of her money. She got an attorney and they won the  argument in court. We were required to give her  $500 in addition to her earnest money, which we had already given back.

A reader asks via FaceBook: (cleaned up a bit from the original)

I seem to be caught in the middle of my tenants who broke up and are going their separate ways in a battle over the security deposit of $1,000. She has the copy of the check she wrote out of her account for it. The receipt I gave them just says I received $1,000 from both of their names. (lesson learned let me tell you.) The receipt did not specify what form of payment I received it in, but she has the copy of the check. Do I split it in half or do I give it all to her? (minus any damge charges of course.) I don’t need to end up in court with court costs over this. Can you give me your opinion on how to handle the deposit? Would appreciate it. Thanks.

This is a pretty easy one.  In most cases you must write the check to all tenants on the rental agreement.  Here is the law:

ATCP 134.06(2)(d) If a landlord returns a security deposit in the form of a check, draft or money order, the landlord shall make the check, draft or money order payable to all tenants who are parties to the rental agreement, unless the tenants designate a payee in writing.

This leads to a follow up question:

So even though she wroite the check out of her own separate account, because they were both on the lease I make out on check to both? Just want to be sure I understand correctly. Thanks for your help. So then that leaves me out of the picture as they fight over the money? And since they are separated no, how do I give it to both, if I give it to her I know she’ll sign his name to it, but then he can go after her for forgery, and that still leaves me out of it, right?

By writing the check to both of them you are following the law.  As long as you don’t encourage or suggest that she forges his name, it is an issue between them and possibly the authorities.  When she pushes the issue with you giver her a copy of the law.

Is this fair to the person who provided the deposit?  Perhaps not , but it’s the law since January 1999.  If you do what you feel is right instead of what is legal you will be paying double deposit plus attorney fees.

There was a discussion on the ApartmentAssoc@YahooGroups.com (link to home page) discussion list regarding charging a fee to a tenant who breaks a lease.

Liquidated damages, as they are referred to, are permitted in some states. For example in Florida you may give the tenant an option to be liable for the balance of the lease subject to mitigation or they can agree to liquidated damages up to two month’s rent. Most tenants seem to prefer the liquidated damages option because they know up front what they can expect if they must move before the end of the lease as opposed to needing to move to another locale and face owing perhaps eight or ten months rent.

However liquidated damages are not permitted in Wisconsin.  In fact having such language in your WI lease probably invalidates the entire lease. Why is this?

ATCP 134.08 Prohibited rental agreement provisions. No rental agreement may: ….

(2) Provide for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise purport to waive the landlord’s obligation to mitigate damages as provided under s. 704.29, Stats.

The court case that supports the idea that the lease is invalid because of a provision contrary to ATCP 134.08 is BAIERL v. McTAGGART.  You can read more about the effects of an invalid lease in my prior post on the subject.

All of this really emphasizes the value of hiring a knowledgable attorney to help you set up your lease agreements and paperwork.  The few bucks spent upfront will save a bunch on the backend.

It does not matter what you call the liquidated damages fee, there is no way to avoid trouble with such a provision outside of changing current law.  As liquidated damages actually limit the tenants’ exposure for future rent allowing such a provision should be acceptable by all sides.  Perhaps this is one of those issues we should bring to Madison on our Meet your Legislators Trip Wednesday, March 16th, 2011.  The trip, including lunch an the bus, is free to AASEW members. If you are interested in going call 414-276-7378 or email Paulette

Years ago the Milwaukee Small Claims Court interpreted §704.29 to allow an owner to charge for anything necessary to get the place rented including new carpet and even in one case that I sat in on waiting for my eviction to be heard, new cabinets.   The mood of the court changed along with the retirement of judges and commissioners.  Today it would probably be troublesome for the owner who took the bold approach on charges under §704.29.

704.29 Recovery of rent and damages by landlord; mitigation.

704.29(1)

(1) Scope of section. If a tenant unjustifiably removes from the premises prior to the effective date for termination of the tenant’s tenancy and defaults in payment of rent, or if the tenant is removed for failure to pay rent or any other breach of a lease, the landlord can recover rent and damages except amounts which the landlord could mitigate in accordance with this section, unless the landlord has expressly agreed to accept a surrender of the premises and end the tenant’s liability. Except as the context may indicate otherwise, this section applies to the liability of a tenant under a lease, a periodic tenant, or an assignee of either.

704.29(2)

(2) Measure of recovery.

704.29(2)(a)

(a) In this subsection, “reasonable efforts” mean those steps that the landlord would have taken to rent the premises if they had been vacated in due course, provided that those steps are in accordance with local rental practice for similar properties.

704.29(2)(b)

(b) In any claim against a tenant for rent and damages, or for either, the amount of recovery is reduced by the net rent obtainable by reasonable efforts to rerent the premises. In the absence of proof that greater net rent is obtainable by reasonable efforts to rerent the premises, the tenant is credited with rent actually received under a rerental agreement minus expenses incurred as a reasonable incident of acts under sub. (4), including a fair proportion of any cost of remodeling or other capital improvements. In any case the landlord can recover, in addition to rent and other elements of damage, all reasonable expenses of listing and advertising incurred in rerenting and attempting to rerent, except as taken into account in computing the net rent under the preceding sentence. If the landlord has used the premises as part of reasonable efforts to rerent, under sub. (4) (c), the tenant is credited with the reasonable value of the use of the premises, which is presumed to be equal to the rent recoverable from the defendant unless the landlord proves otherwise. If the landlord has other similar premises for rent and receives an offer from a prospective tenant not obtained by the defendant, it is reasonable for the landlord to rent the other premises for the landlord’s own account in preference to those vacated by the defaulting tenant.

704.29(3)

(3) Burden of proof. The landlord must allege and prove that the landlord has made efforts to comply with this section. The tenant has the burden of proving that the efforts of the landlord were not reasonable, that the landlord’s refusal of any offer to rent the premises or a part thereof was not reasonable, that any terms and conditions upon which the landlord has in fact rerented were not reasonable, and that any temporary use by the landlord was not part of reasonable efforts to mitigate in accordance with sub. (4) (c); the tenant also has the burden of proving the amount that could have been obtained by reasonable efforts to mitigate by rerenting.

704.29(4)

(4) Acts privileged in mitigation of rent or damages. The following acts by the landlord do not defeat the landlord’s right to recover rent and damages and do not constitute an acceptance of surrender of the premises:

704.29(4)(a)

(a) Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;

704.29(4)(b)

(b) Rerenting the premises or a part thereof, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;

704.29(4)(c)

(c) Use of the premises by the landlord until such time as rerenting at a reasonable rent is practical, not to exceed one year, if the landlord gives prompt written notice to the tenant that the landlord is using the premises pursuant to this section and that the landlord will credit the tenant with the reasonable value of the use of the premises to the landlord for such a period;

704.29(4)(d)

(d) Any other act which is reasonably subject to interpretation as being in mitigation of rent or damages and which does not unequivocally demonstrate an intent to release the defaulting tenant.

704.29 – ANNOT.

History:  1993 a. 486; 1995 a. 85.

704.29 – ANNOT.

Acceptance of the surrender of premises terminated the lease and deprived the landlord of the right to seek future rent. First Wisconsin Trust Co. v. L. Wiemann Co. 93 Wis. 2d 258, 286 N.W.2d 360 (1980).

704.29 – ANNOT.

A court’s retention of jurisdiction to determine damages for rents not yet due is permitted. Mitigation expenses that may be recovered are limited to necessary expenses incurred and do not include compensation for time spent in mitigating damages. Kersten v. H.C. Prange Co. 186 Wis. 2d 49, 520 N.W.2d 99 (Ct. App. 1994).

704.29 – ANNOT.

A landlord may elect to accept the surrender of premises by a tenant, which terminates any further obligation of the tenant under the lease, but which also relieves the landlord from the obligation to apply payments from the new tenant to the former tenant’s unpaid rental obligations. CCS North Henry, LLC v. Tully, 2001 WI App 8, 240 Wis. 2d 534, 624 N.W.2d 847, 00-0546.

704.29 – ANNOT.

Whenever a landlord does not, by word or deed, accept the surrender of leased premises following a tenant’s removal, the landlord must mitigate damages by attempting to re-rent the premises. If a landlord elects to hold the tenant to the tenancy, the landlord’s re-renting the premises to another cannot, standing alone, constitute an acceptance of surrender of the premises. A landlord’s actions in dealing exclusively with a successor tenant, proposing a new long-term lease to the successor, accepting higher rent from the successor as called for in the proposed lease, and failing to communicate in any way to the tenant that she deemed him responsible for the remainder of the tenancy clearly evidenced an intent to accept the tenant’s surrender of the premises. Vander Wielen v. Van Asten, 2005 WI App 220, 287 Wis. 2d 726, 706 N.W.2d 123, 04-1788.

704.29 – ANNOT.

A landlord has an obligation to rerent when a tenant breaches a lease. Specific performance is not a proper remedy. Chi-Mil. Corp. v. W. T. Grant Co. 422 F. Supp. 46 (1976).

A thread from one of the rental property email list I subscribe to begins with a question regarding a lease that was invalidated due to a provision requiring the tenant to pay the landlord’s attorney contrary to  Wisconsin ATCP 134. Below is a follow up question:

So if the tenancy is disolved and i can not enforce the lease but shouldnt i be able to enforce the damages they did? otherwise this allows tenannts to be sneaky. not pay rent and damage and walk away better.

My response was as follows (cleaned up a bit from the original):

This is a very tricky area.  If the damages and deposit deductions fall within the statue §704.07(3)(a) or administrative law ATCP 134.06(3)(a) 1 through 5, but not 134.06(3)(a)6 or 134.06(3)(b), then often your claim on the damages portion will be accepted.

However the tenant may be entitled to double damages plus attorney fees due to your illegal lease provision requiring them to pay your attorney fees.  There are a couple of published Wisconsin cases on the subject of invalid rental agreements listed further down in this post. By the time a tenant friendly judge is done with you, it usually isn’t pretty.  Double damages and reasonable attorney fees are statutory if you lose on the ATCP violation per §100.20(5).

Reasonable attorney fees does not mean the amount charged to you will be what you consider reasonable, but rather even if the tenant has a free legal aid or pro bono attorney you will still have to pay the going rate for the attorney even though the tenant wasn’t actually billed.

If this is in court you should seriously consider hiring an attorney knowledgeable  in landlord tenant law now rather than slugging it our yourself. I  have met owners who have had stupid little cases turn into tens of thousands of dollars. And while collecting a judgment from a tenant is often difficult, the same cannot be said of collecting against a property owner.  No life is not fair, especially if you chose the life of a landlord.

Now to minimize potential future damage

First step – get an attorney who knows Wisconsin landlord tenant law inside and out to draft a good lease or use the one from Wisconsin Legal Blank, without being tempted to draft a “cleaver” addendum.  In the long run you would be better off with a more aggressive custom rental agreement than the” standard” one. A bit more money upfront, but over the long run you will be glad you spent it.   Really there is no standard rental agreement in WI.

Next – get all of your current tenants on the new leases that don’t violate the “seven deadly sins” of ATCP 134.08. Show the tenant the advantage of the new lease, whether it is extending the term at the same rate or just that the bad language that was removed.

Your attorney can help you draft a letter that explains the reason for the replacement agreement.

Or you can do  as we do when we have taken over properties with bad rental agreements.  Give the tenant a letter that says something like: ‘The rental agreement that you signed with the prior landlord has all kinds of draconian things in it that are contrary to how we treat our tenants, such as the provision requiring you to pay his attorney if he had to take you to court. So here is our standard rental agreement that replaces the one you are on.  Read it over. You  will find it is the same rent as you were paying and expires at the same time as the prior lease.  It just removes the provisions we find contrary to how we do business.  We are doing this because it appears that you are a great tenant (whether that is true or not) and want you to be happy, and stay with us for a long time’

Even if you gave them the bad lease you could do something similar.  (example only) ‘I got the rental agreement we had you sign from [the another landlord / off the internet/found in a box of Cracker Jacks®. ] I was reading it over this weekend and said to myself ‘Wow, this is terrible. I can’t believe anyone would sign something like this.  We don’t treat our tenants like this.  So I am replacing the existing agreement with a shinny new one at the same rent but without the draconian terms because I am a really great landlord who treats my tenants well.’

Now as you are trying to digest all of this you are probably thinking ‘Where do you find the laws that effect me?’   Below are the important ones from this post. I have a page of links I use all  the time posted here.

The published Wisconsin Court Cases on invalid rental agreements

• Baierl d/b/a Supreme Builders v. McTaggart, Wis. Supreme Court, Case #98-3329 (2001). Because a lease contained a provision specifically prohibited by ATCP 134, the landlord could not enforce the lease against the tenant. The court declined to sever the illegal provision and enforce the rest of the lease, because that would undermine the policy behind ATCP 134.
• Dawson v. Goldammer In Dawson v. Goldammer, 2003 WI App 3 (Dawson I), the court of appeals held that a tenant may seek enforcement of a rental agreement that includes an attorney fee provision that violates Wisconsin Administrative Code section ATCP 134.08(3). In the case at bar, the court held that when a tenant seeks enforcement of such a lease, the tenant can sever the attorney fee provision and enforce the remainder of the lease. The court therefore reversed the part of the circuit court’s judgment that awarded attorney fees to the landlords, but it affirmed the circuit court’s rulings on all other disputed grounds (see ¶ 1).

The “Seven deadly sins” per ATCP 134.08 per the Admin Code are:

ATCP 134.08 Prohibited rental agreement provisions.

No rental agreement may:

(1) Authorize the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799, Stats.

(2) Provide for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise purport to waive the landlord’s obligation to mitigate damages as provided under s. 704.29, Stats.

(3) Require payment, by the tenant, of attorney’s fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This does not prevent the recovery of costs or attorney’s fees by a landlord or tenant pursuant to a court order under ch. 799 or 814, Stats.

(4) Authorize the landlord or any agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

(5) Relieve, or purport to relieve the landlord from liability for property damage or personal injury caused by negligent acts or omissions of the landlord. This does not affect ordinary maintenance obligations assumed by a tenant under a rental agreement, in accordance with sub. (7) and s. 704.07, Stats.

(6) Impose, or purport to impose liability on a tenant for:

(a) Personal injury arising from causes clearly beyond the tenant’s control.

(b) Property damage caused by natural disasters, or by persons other than the tenant or the tenant’s guests or invitees. This does not affect ordinary maintenance obligations assumed by a tenant under the rental agreement, in accordance with sub. (7) and s. 704.07, Stats.

(7) Waive any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition, or maintain the premises during tenancy.

ATCP 134(3) SECURITY DEPOSIT WITHHOLDING; RESTRICTIONS.

(a) A landlord may withhold from a tenant’s security deposit only for the following:

1. Tenant damage, waste or neglect of the premises.

2. Unpaid rent for which the tenant is legally responsible, subject to s. 704.29, Stats.

3. Payment which the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.

4. Payment which the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant’s nonpayment.

5. Unpaid mobile home parking fees which a local unit of government has assessed against the tenant under s. 66.0435 (3), Stats., to the extent that the landlord becomes liable for the tenant’s nonpayment.

6. Other reasons authorized in the rental agreement according to par. (b).

(b) A rental agreement may include one or more nonstandard rental provisions which authorize a landlord to withhold from a tenant’s security deposit for reasons not identified under par. (a). The landlord shall include the nonstandard provisions, if any, in a separate written document entitled “NONSTANDARD RENTAL PROVISIONS” which the landlord provides to the tenant. The landlord shall specifically identify and discuss each nonstandard provision with the tenant before the tenant enters into any rental agreement with the landlord. If the tenant signs or initials a nonstandard rental provision, it is rebuttably presumed that the landlord has specifically identified and discussed that nonstandard provision with the tenant, and that the tenant has agreed to it.

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

Here is Tristan’s letter describing the event.

So you’re telling me if there is one thing in a Wisconsin lease/rental agreement that violates the rules in ATCP 134.08 that I cannot enforce any of the agreement?

Yes, under Baierl v McTaggart the entire lease is invalid as far as the landlord’s enforcement. But it is worse than that. The Court ruled subsequent to Baierl in Dawson v. Goldammer that the tenant can enforce the parts they like.

Baierl d/b/a Supreme Builders v. McTaggart, Wis. Supreme Court, Case #98-3329 (2001). Because a lease contained a provision specifically prohibited by ATCP 134, the landlord could not enforce the lease against the tenant. The court declined to sever the illegal provision and enforce the rest of the lease, because that would undermine the policy behind ATCP 134.

In Dawson v. Goldammer, 2003 WI App 3 (Dawson I), the court of appeals held that a tenant may seek enforcement of a rental agreement that includes an attorney fee provision that violates Wisconsin Administrative Code section ATCP 134.08(3). In the case at bar, the court held that when a tenant seeks enforcement of such a lease, the tenant can sever the attorney fee provision and enforce the remainder of the lease. The court therefore reversed the part of the circuit court’s judgment that awarded attorney fees to the landlords, but it affirmed the circuit court’s rulings on all other disputed grounds (see ¶ 1).

So what are prohibited rental terms under ATCP 134?

We call them “The Seven Deadly Sins”

ATCP 134.08 Prohibited rental agreement provisions. No rental agreement may:

(1) Authorize the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799, Stats.

(2) Provide for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise purport to waive the landlord’s obligation to mitigate damages as provided under s. 704.29, Stats.

(3) Require payment, by the tenant, of attorney’s fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This does not prevent the recovery of costs or attorney’s fees by a landlord or tenant pursuant to a court order under ch. 799 or 814, Stats.

(4) Authorize the landlord or any agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

(5) Relieve, or purport to relieve the landlord from liability for property damage or personal injury caused by negligent acts or omissions of the landlord. This does not affect ordinary maintenance obligations assumed by a tenant under a rental agreement, in accordance with sub. (7) and s. 704.07, Stats.

(6) Impose, or purport to impose liability on a tenant for:

(a) Personal injury arising from causes clearly beyond the tenant’s control.

(b) Property damage caused by natural disasters, or by persons other than the tenant or the tenant’s guests or invitees. This does not affect ordinary maintenance obligations assumed by a tenant under the rental agreement, in accordance with sub. (7) and s. 704.07, Stats.

(7) Waive any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition, or maintain the premises during tenancy.