Just A Landlord » DIY Evictions http://justalandlord.com Tim Ballering's Survival Tips for Landlords in an Unjust World Sat, 04 Sep 2010 12:45:06 +0000 en hourly 1 http://wordpress.org/?v=3.0.1 Are more tenants having trouble paying rent? http://justalandlord.com/2010/05/26/are-more-tenants-having-trouble-paying-rent/ http://justalandlord.com/2010/05/26/are-more-tenants-having-trouble-paying-rent/#comments Wed, 26 May 2010 13:00:24 +0000 Tim Ballering http://justalandlord.com/?p=623 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.

Share/Save

]]> http://justalandlord.com/2010/05/26/are-more-tenants-having-trouble-paying-rent/feed/ 0 Eviction Notice Matrix http://justalandlord.com/2009/10/22/eviction-notice-matrix/ http://justalandlord.com/2009/10/22/eviction-notice-matrix/#comments Thu, 22 Oct 2009 20:27:03 +0000 Tim Ballering http://justalandlord.com/?p=401 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.

Eviction Notice Matrix
Type of Agreement

Problem

Month to Month

Lease (1 year or less)
Non Payment of Rent 5-day or 14-Day 5-Day*
Non Payment of Deposit, Late Fees or Other charges 14-Day 5-Day*
Violation of Rental Agreement 14-Day 5-Day*
Drug or Gang Activity Letter from Police 5-Day Drug/Gang 5-Day Drug/Gang
Notes:

  • If you use a lease for a specific term you must use a five day notice for the first violation during a lease period. This allows the tenant to correct the problem and stay. Now, if they subsequently violate the rental agreement during the same term you can use a 14 day that does not allow them to correct the problem and continue living there.
  • If a month to month tenant doesn’t pay the rent you can simply give them a 14-Day Notice and demand they leave, without the option to pay. The choice is yours.
  • Leases for more than a year requires a 30 day notice with right to cure unless otherwise stated in lease.

Share/Save

]]> http://justalandlord.com/2009/10/22/eviction-notice-matrix/feed/ 2 Properly Serve The Notice or Lose the Eviction http://justalandlord.com/2009/10/21/properly-serve-the-notice-or-lose-the-eviction/ http://justalandlord.com/2009/10/21/properly-serve-the-notice-or-lose-the-eviction/#comments Thu, 22 Oct 2009 01:18:30 +0000 Tim Ballering http://justalandlord.com/?p=276 Improper service of the notice is one of the most common causes of an owner losing an eviction.

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

.

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

.

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

.

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:

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

Share/Save

]]> http://justalandlord.com/2009/10/21/properly-serve-the-notice-or-lose-the-eviction/feed/ 0 5-Day, 14-Day or 28-Day, Which notice do I use? http://justalandlord.com/2009/10/19/select-the-proper-notice-eviction/ http://justalandlord.com/2009/10/19/select-the-proper-notice-eviction/#comments Mon, 19 Oct 2009 18:25:58 +0000 Tim Ballering http://justalandlord.com/?p=274

Select The Proper Notice (DIY Eviction Series)

All eviction actions begin with a properly served notice to vacate. In Wisconsin these are typically 5, 14 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.

So what notice do you use?

Eviction – Non-Payment Of Rent:

The most common eviction is for non-payment of rent or other charges. This action begins with the service of a Five-Day Notice.  (Forms are available on the Apartment Association Web Site) This notice allows a tenant to “cure” (stop the eviction) by paying all amounts due within the notice period. Fill in the form as shown in the Sample Five-Day Notice and then serve it on the tenant in one of the 3 manners listed below.

Potential Problem: If you accept partial payment, you may have waived your right to continue the eviction without service of a second notice. It may help if you are accepting a partial payment to write on the receipt that no promises were made in regards to the eviction, and if the balance is not paid by a certain date, the landlord will continue the eviction process.

Potential Problem:  If you use the older style “fill in the date” style five day and you calculated the date wrong your eviction will fail even if you wait the proper amount of time before filing the eviction.

Potential Problem: A Five-Day Notice can not be served on the first- you must wait until the second or the date the rent is due under a written agreement.

Tip: If you are tired of a tenant on a year lease that is constantly late on their rent you can serve them a Fourteen Day Notice which does not allow them to stay. This can only be done after they have received a 5-Day Notice for nonpayment in a previous month within the same lease term.

Eviction – Rental Agreement Violation Month-to-Month Agreements :

Written or oral month-to-month rental agreements. In cases where the tenant has violated the rental agreement or committed waste (damaged the property), you may use a Fourteen Day Notice. The 14 Day Notice does not permit the tenant to cure, although the owner always has the option of stopping the process.

Potential Problem: The owner has the burden of proving the lease violation. If the tenant goes to court to contest the eviction action you must be prepared to offer proof such as photos, police reports, or witnesses. Simply repeating a complaint that another tenant gave you is not “admissible” as evidence. Typically, problem tenants do not come to court to contest the eviction because they know they are trouble.

Tip: If you are basing the eviction on complaints of other residents of your building ask them to give it to you in writing. Although a letter without the personal testimony of the writer is not admissible in court, most court commissioners will consider it in making their decision. You would only have to produce your witness if they appeal the commissioners decision to a circuit court judge.

Potential Problem: You can not use a fourteen day notice to evict a tenant who is disruptive in the neighborhood but causes no problems at your property.

Potential Problem: You cannot use a 5-Day Breach Notice with a month to month tenancy, rather you must use the 14-Day Notice.  While the 14-Day notice does not permit the tenant to “cure” (resolve the problem and stay) an owner certainly can agree to vacate the notice if the tenant takes care of the problem.

Tip: You may use a Twenty-Eight Day notice in a month-to-month tenancy to evict without cause. In a case where you might consider using a Fourteen-Day Notice, but do not want to have the burden of proof problem, such as bringing witnesses to court etc., use a Twenty-Eight Day notice. With a Twenty-Eight Day notice you never have to, nor should you, explain why. Just tell them they have to be out at the end of the month and if they are not out, you will go to court to have the Sheriff move them.

Tip: Want to move them faster than 28 days? One method is to serve them a Five-Day Notice early morning on the second of the month along with a Twenty-Eight Day notice. Explain to them that even if they pay, they will be evicted. Suggest they use the money they were going to give you to find a new residence. Typically they will not pay the rent and you can evict for nonpayment

Potential Problem: You cannot use a fourteen-day notice to evict a tenant who is disruptive in the neighborhood but causes no problems at your property unless you have strong lease language to support it.

Eviction – Lease Violation -Year Leases:

If the tenant is on a year lease you must give them a Five-Day Notice for the first breach during any lease term. If they “cure” the breach, they are entitled to stay. You may use the Fourteen Day notice without right to cure for the second breach within the years lease term.

Potential Problem: The owner has the burden of proving the lease violation. If the tenant goes to court to contest the eviction action you must be prepared to offer proof such as photos, police reports, or witnesses. Simply repeating a complaint that another tenant gave you is not “admissible” as evidence. Typically, problem tenants do not come to court to contest the eviction because they know they are trouble.

Tip: If you are basing the eviction on complaints of other residents of your building ask them to give it to you in writing. Although a letter, without the personal testimony of the writer, is not admissible in court, most court commissioners will consider it in making their decision. You would only have to produce your witness if they appeal the commissioners decision to a circuit court judge.

Potential Problem: You cannot use a 5-Day or 14-day notice to evict a tenant who is disruptive in the neighborhood but causes no problems at your property unless you have strong lease language to support it.

Eviction – Drug / Gang Activity:

If you receive a “drug house letter” from the police, you may use a special 5-day notice for drug activity, which requires the tenant to vacate within Five-Days. Sample 5-Day Notice- Drug Related This does not mean they will vacate, just that they should.

Potential Problem: A standard 5-day notice does not contain the required language – use the special 5-Day Notice- Drug Related for these cases.

Potential Problem: Drug dealers are not nice people. Some even carry guns. (Would make a helluva bumper sticker)

Tip: Tell the drug dealer the police are requiring you to evict them. Let them know the problem is between them and the police, not you. Tell them if they can get the police to send you a letter stating that they are not drug dealers you will cancel the eviction. Do not let them know you feel they are the most contemptible beings on the face of this planet.

Eviction – Other Causes:

If you simply don’t want to rent to a particular tenant anymore and you use a typical month-to-month tenancy – serve them with a 28 Day notice. If your rental agreement has a longer notice period serve the tenant with a notice that is consistent with the notice period required in the agreement. For tenants on a one-year lease your only option if they are current on their rent and have not violated the lease is to not renewal the lease when it expires.

Tip: Rather than evicting you can give the tenant a significant rent increase. That may cause them to move on their own, saving you the cost and aggravation of forcing them to move.

Potential Problem: While you are certainly free to get rid of the annoying man in apartment 107, you can run into real problems if you do so within six months of him reporting you to the building inspector. This only applies to termination without cause. If the tenant owes rent or is selling drugs, by all means evict them. This same caution applies to rent increases or reduction in services.

Potential Problem: Property owners can find themselves in trouble for violating fair housing laws by evicting tenants simply because they are members of a protected class. You can read more on this in our Owners Guide to Renting, Tenant Screening, Selection and Fair Housing.

DIY Eviction Series:

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

Share/Save

]]> http://justalandlord.com/2009/10/19/select-the-proper-notice-eviction/feed/ 2 About the DIY Evictions Series http://justalandlord.com/2009/10/12/about-the-diy-evictions-series/ http://justalandlord.com/2009/10/12/about-the-diy-evictions-series/#comments Mon, 12 Oct 2009 14:00:43 +0000 Tim Ballering http://justalandlord.com/?p=307 Years ago, maybe 1995 or so, I wrote the first draft of a guide to doing an eviction yourself. It has been updated many times since then, with lots of input along the way from users and experts alike.

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.

Share/Save

]]> http://justalandlord.com/2009/10/12/about-the-diy-evictions-series/feed/ 0 DIY Collections & Evictions – Overview http://justalandlord.com/2009/10/11/diy-collections-evictions-overview/ http://justalandlord.com/2009/10/11/diy-collections-evictions-overview/#comments Sun, 11 Oct 2009 14:49:11 +0000 Tim Ballering http://justalandlord.com/?p=270 The following is a basic outline of the steps required for an eviction. These instructions and forms are optimized for Milwaukee County, however most are valid statewide.

Collections & Evictions Overview

.

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.

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

Share/Save

]]> http://justalandlord.com/2009/10/11/diy-collections-evictions-overview/feed/ 0