Sep 27

Attorney Tristan Pettit, you know, the guy that writes the standard legal forms for Wisconsin Legal Blank, is doing his landlord-tenant Boot Camp again on Saturday, October 7th. There are still a few seats left.

You get a full day of landlord-tenant law training for the price you’ll spend for 30 minutes of attorney time after you make a mistake in this complex area of law,

All the details are at:
http://www.landlordbootcamp2017.com

But the proof of value is I send my staff to Tristan’s Boot Camps.  Even though I know the laws, it is of great value to have staff learn what they need to be concerned about in a different setting than the office.

Feb 09

For the past couple of years, we have sold out both the spring and fall sessions of Attorney Tristan Pettit’s AASEW Landlord Tenant Law Boot Camp.

It looks like we are on track to do the same for the upcoming February 18th, 2017 Boot Camp.

Last fall I waited too long to sign up my new staff members and could not get them in. I signed up three staff people very early for this one. 😉

You may ask ‘Why would Tim pay $537 plus wages to send three people to Boot Camp when he knows the laws so well?’

The answer is easy: One small mistake or missed opportunity will cost us far more than this. It is important that my folks know the law as WI landlord Tenant Law is not always what a reasonable person would assume it to be. And this is ever evolving, with both new laws, new interpretations by courts and new tricks by tenant advocates*. This is not the first time we’ve sent staff either.

This course is presented by Attorney Tristan Pettit. Tristan’s law practice focuses on landlord-tenant law, he is a current board member of the Apartment Association as well as former president, and drumroll please, he writes all the standard landlord tenant forms for Wisconsin Legal Blank.

If you want to go, now that my seats are secure ;-), you can sign up online or call Joy at the Association 414-276-7378 and reserve a spot.

http://www.landlordbootcamp2017.com

* Most “tenant advocates” only advocate for tenants that break the rules. This ultimately costs the rest of the good tenants more in increased rents and decreased service or more noise and disruption… but this is another story for another day.

Jan 23

There is a discussion over on theApartment Association email discussion group about sending deposit letters via email.

I would be careful with creative methods of returning deposits or sending notice to tenants. The law is ATCP 134.06(2) Returning security deposits. A landlord shall deliver or mail to a tenant… “ and §704.28(4) Timing for return. A landlord shall deliver or mail to a tenant the …” Email is not in there.

The risk of being on the cutting edge is suffering large legal costs even if you are right. Below is a Wisconsin case that an owner had to take to the Court of Appeals in part because he sent the deposit letter via FedEx. The trail court ruled that FedEx was not mail and therefore the owner was liable for double deposit and attorney fees.

KIDD (Landlord) v. MCMASTER (Tenant)

“DYKMAN, J.[1] Michael Kidd appeals from a judgment awarding Dianna L. McMaster $18,029.93. He contends the trial court erred by finding that Federal Express is not a statutorily approved method of transporting a security deposit to a tenant under WIS. ADMIN. CODE § ATCP 134.06(2)(a).

The majority of the judgement, $15,171.69 was “reasonable attorney fees .” I’ll assume the rest was double deposit. The landlord won on appeal, but at what cost?

Oct 28

In the case that a tenant owes rent or other easily determinable charges, it is safest to send the letter as soon as practical and bill them separately for other damages.  

Returning keys may or may not be important in establishing the date the clock starts rolling.  More importantly is when did you know they were out and what was the termination date of their agreement.  

§704.28 (4) (b) was a big change.  Let’s say a tenant on a year lease vacates four months early, depending on when the unit gets rerented, the 21 days could start up to four months after they vacate.  

This also applies to month to month occupancies. If the tenant moved without notice, the notice date is implied to be the date the owner learned they moved out.

I look at (4) (b) as more of a safety net for owners that are sloppy in their response times or did not know the date the tenant vacated.  A far better approach would be to send a deposit transmittal letter as soon as you learn they left before the end of the agreement, stating the deposit is being applied to the rent due and that they are liable for the rent until, for example, Feb 29th, 2016 unless the unit is rerented prior to that date.  Also note that you are attempting to rerent the unit. 

Even if (4) (b) keeps you from losing a deposit lawsuit, it probably does not keep you out of court as tenants still believe the 21 days start the day they left and not the last day of the lease that could be months in the future. 

I feel it is very important when a tenant owes rent equal to or more than the deposit that you limit the deposit withholding letter to the rent with a notation that they are being billed separately for other damages.  If you have late fees in the written agreement those too can be part of the undisputed deposit withholding letter. [EDIT: Attorney Tristan Pettit points out that I was not clear that late fees must also be included in the non standard provision. ] 

There have been a few cases, including an outstate unpublished appellate decision, where the courts have doubled the wrongfully withheld items on a deposit transmittal letter and then applied that to a determination of double damages and attorney fees even though the rent alone exceeded the deposit.  For example the tenant has one month’s rent as deposit and leaves owing a month’s rent.  The landlord, being angry they left in the middle of the night puts $500 charge on the deposit letter for changing the locks. Tenant now is also angry and takes the landlord to court.  Some courts will mistakenly double the wrongfully withheld $500 and then clip the owner for the tenant’s attorney fees on top of that. Had the deposit letter just had the rent due on it and the owner billed the tenant for the questionable charges it would not have made the owner any less of a butthead, but he would have some money left to sign up for meditation or anger management classes.

You should also use the separate bill method for other things that are legit, but cannot be deducted from the deposit such as carpet cleaning if written into the rental agreement.  Note that our company does not change for carpet cleaning, but the WI Attorney General has said you may, as long as you do not deduct the charge from the deposit.

 704.28 (4) Timing for return. A landlord shall deliver or mail to a tenant the full amount of any security deposit paid by the tenant, less any amounts that may be withheld under subs. (1) and (2), within 21 days after any of the following:

(a) If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.

(b) If the tenant vacates the premises or is evicted before the termination date of the rental agreement, the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

(c) If the tenant vacates the premises or is evicted after the termination date of the rental agreement, the date on which the landlord learns that the tenant has vacated the premises or has been removed from the premises under s. 799.45 (2).

Sep 11

What I’ve seen in Milwaukee County Small Claims Court over the years is mixed. Some Court Commissioners accept §704.07(3)(a) [below] as applying and require the tenant to “reimburse the landlord for the reasonable cost” although a couple of commissioners have taken ATCP 134.06(4)(b)  to mean actual costs only. But a strong argument against this position is ATCP 134.06(4)(a) also allows for “reasonable compensation”

There was a published case, which for whatever reason I cannot find, that allowed an owner’s $15 per hour labor charge.

There is also a unpublished Court of Appeals opinion where an owner had an hourly rate in his non standard “The court also awarded the Hofackers $45 per hour for labor, pursuant to one of the [nonstandard] provisions.”  I would not rely on this case as the amount per hour sounds excessive to me, plus it was a District III decision, which often rules far differently than District I. Also note that the landlord ultimately lost the case at the trial court on other issues and was charged $11,417 in attorney fees plus $3,796.64 in double damages for withholding a $1,300 deposit, some of which the court allowed as a deduction.  This case should be a warning to those who overstate charges even when they are entitled to withhold all or part of the deposit.

Despite Hofacker being a poor case, having a nonstandard provision where the labor rate is more inline with normal labor costs may be helpful for owners that do their own work.

The best option though for those who do some work on their properties, but also pay to have work done, is to direct the paid labor towards deposit type issues and work on items that will not be charged to the tenant yourself

The Statute and Admin Code

§704.07(3)(a) If the premises are damaged by the negligence or improper use of the premises by the tenant, the tenant must repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the repair or redecoration, and in such case the tenant must reimburse the landlord for the reasonable cost thereof; the cost to the landlord is presumed reasonable unless proved otherwise by the tenant.

ATCP 134.06(4)(b) No landlord may intentionally misrepresent or falsify any claim against a security deposit, including the cost of repairs, or withhold any portion of a security deposit pursuant to an intentionally falsified claim.

ATCP 134.06(4)(a) If any portion of a security deposit is withheld by a landlord, the landlord shall, within the time period and in the manner specified under sub. (2), deliver or mail to the tenant a written statement accounting for all amounts withheld. The statement shall describe each item of physical damages or other claim made against the security deposit, and the amount withheld as reasonable compensation for each item or claim.

P.S. Reread the disclaimer:  I am “just a landlord,” NOT an attorney or even a doctor despite having terrible handwriting. If you need legal advice or have appendicitis, don’t rely on something you read on the internet and do it yourself. Rather, hire a competent professional.


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