Just A Landlord

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?

(more…)

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):

(more…)

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

(more…)

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. (more…)