Author: Tim Ballering

Categories
Security Deposit

Can I deduct my own labor from a deposit

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There is also a unpublished Court of Appeals opinion where an owner had an hourly rate in his non standard “The court also awarded the Hofackers $45 per hour for labor, pursuant to one of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.

Categories
5-Day Notice Collections Evictions

Can I accept payment and still evict?

A five day notice for payment is a “pay or quit” or right to cure. If the tenant presents the full amount within the five day period the notice is void.  Remember if you serve via certified mail, you must add two days.

The law changed with 2013 ACT 76, effective in March 2014.

799.40 (1m) Acceptance of rent or other payment. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed solely because the landlord accepts past due rent or any other payment from the tenant after the termination of the tenant’s tenancy serving notice of default or after commencing the action.

If the tenant pays a portion but not all the rent due, the notice is probably valid.  The tricky part here is if you the tenant felt that you agreed to waive the notice if they made the partial payment.  This turns into ‘he said, she said’  To avoid that issue we have the following at the bottom of our notice:

“Non Waiver: If you make a  payment  of less than the $xxx.xx required by this notice, you will still be in default and SUBJECT TO EVICTION  unless the Owner agrees in writing to cancel this notice.”

Our system also prints the following on receipts of tenants with active five days:

“Non-waiver: This partial payment will be applied to past due rent owed and that by accepting same owner is not waiving his right  to proceed with an eviction based on the 5-Day notice dated xx/xx/xxxx unless tenant enters into a written payment agreement for the balance and owner agrees in writing to vacate the notice.”

Just because you CAN do something doesn’t mean you SHOULD.  Don’t be a jerk about it.  If the tenant owes, let’s say $900, and pays, let’s say $820, with a promise to pay the balance with next month’s rent and you quietly accept the money and then file the eviction that would meet my definition and probably the Court Commissioner’s definition of being a jerk.  Court Commissioners can find some pretty creative ways around jerks. 😉  However in the same scenario the tenant gives you $200 and promises to be back on Friday to pay the balance on Friday and fails to, then by all means evict.

Finally the reader asked about payment in full of rent and late fees.   The law does not currently permit late fees on five day notices for month to month tenants and inclusion of those on a five day will cause the eviction to fail in some counties.  The Apartment Association is working to change this law in the current session.

Categories
Fair Housing

Using different income criteria for unmarried applicants

There is a discussion over on theApartment Association email discussion group about income criteria for unmarried co occupants vs. married occupants.

A tenant is a tenant, regardless if they are married, cohabitation, straight, gay, white, black or green.

If you are using a reasonable income criteria for screening, that is good as long as you don’t factor in the other things such as marital status.  

Your protection if occupant A departs on month two of a year lease is to let occupant A know you are not releasing them from the obligation they have to you under the rental agreement. Simply moving out does not relieve the vacating tenant from their obligations under the rental agreement. 

As soon as you start analyzing if applicant A has enough income without applicant B for unmarried tenants, but consider the income of both undividedly  for married tenants you are running afoul of Fair Housing, at least in Wisconsin.

While marital status is not a protected class under Federal Fair Housing, it is a protected class under Wisconsin’s Open Housing Law and in a number of other jurisdictions.

Plain English version:

https://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_9523_p.pdf

Statute:

https://docs.legis.wisconsin.gov/statutes/statutes/106/III/50/1

106.50  Open housing.

(1)  Intent. It is the intent of this section to render unlawful discrimination in housing. It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, status as a victim of domestic abuse, sexual assault, or stalking, lawful source of income, age, or ancestry and it is the duty of the political subdivisions to assist in the orderly prevention or removal of all discrimination in housing through the powers granted under ss. 66.0125 and66.1011. The legislature hereby extends the state law governing equal housing opportunities to cover single-family residences that are owner-occupied. The legislature finds that the sale and rental of single-family residences constitute a significant portion of the housing business in this state and should be regulated. This section shall be considered an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity, and human rights of the people of this state.

Categories
Office Effectiveness Strategy

On being more productive.

Years ago I had a secret weapon … Jott an iPhone app that allowed you to speak a note and have a fairly well typed email. Unfortunately Jott was shut down a couple of years ago.

A year ago I stumbled on an excellent replacement, DO note. This app is available for both iPhones and Android.  It is free as well.

While you are out in the field you can quickly take a note of something you will likely have forgotten about by the time you get to a proper place to jot down your notes.

 

Categories
Maintenance & Repairs

Don’t let the bedbugs bite

This past week there has been a lot of talk about bedbugs on the Apartment Association online discussion group.

Bedbugs made a resurgence after DDT was banned due to its harmful effects on the environment and humans.

Diatomaceous Earth works well and is non toxic to mammals and in fact is feed to dogs, cats and even humans in some parts of the world to rid internal parasites like tapeworms.  Therefore you don’t have to worry about toxicity to tenants.

Downsides of Diatomaceous Earth:

  • It is a bit messy – white powder in the application area.  This can be lessened by using a cattle duster or plant duster.
  • It is not a fast as chemical based or heat solutions.  The trick is to do a knock down with a pyrethrin based chemical first.  Pyrethrins are semi organic, derived from chrysanthemum plants.  They are alleged to be people and pet safe, have been in use for many decades and have little residual.  The latter is great from a toxicity concern, but not so great at keeping bugs at bay.
  • It is odorless.  Why is that a downside?  People tend to believe stinky products are more effective products.

If you are going to go the pure chemical route JT Eaton products work well and are consumer labeled.  Apply the red one and then a week later the blue.  Cyonara 9.7 is also currently effective.

[Update] Brian Peters sent me a message that reminded me that DNS has a good bedbug brochure that you can provide your tenants.

Do It Yourself Pest Control has a really good overview of how to effectively treat for bedbugs.  They often, but not always, have the best prices if you are buying in quantity.

Here is a visual overview of how to treat for bedbugs

Categories
crime Our industry Strategy

Dangerous summer- Prep crew robbed & violently beaten

Milwaukee’s wave of violent crime has not subsided.

Yesterday (8-14-15) a unit prep crew for one of the other larger Southside owners were robbed at gun point while unloading their van at 8:30 AM.  The crime happened on 24th and Maple.

One work suffered serious injuries from being struck with an iron bar across the face. The guy has a broken lower jaw, upper jaw, nose and eye socket.

What did the thieves get from this violent attack?  $40.  They did not even steal any tools.  What was the most the criminals could have expected to get robbing a couple of apartment painters art work?  Maybe… $40.  WTF.  Who robs paint crews at 8:30 in the morning?

Two guys in a grey Hyundai were driving slowly down the street, as though they were looking for an address.  They pulled in and parked a couple of car lengths ahead of the worker’s van.  Two workers were unloading the stuff they needed to finish the prep.

One of the bad guys calmly walked up to a worker and asked him for a light for his cigarette.  The worker gets out his lighter, looks up and sees the gun.  Fixated on the gun, as you would be, he doesn’t see the other guy until he was struck in the face with the iron bar. Had the worker turned his head he could have been hit across the back of the neck.

The worker never had a chance to simply hand over his wallet. These criminals were willing to possibly kill someone for a couple of dollars.

How do you even protect yourself in a situation like this?   Even if the worker had a carry permit, there would have been no time to react between this being a stranger looking for a light and a violent attack.

Later that same day two people were shot in a robbery on 34th and Lincoln. A few days earlier and a few blocks east, a ten year old was shot in his own home as bad guys decided to shoot out in the street outside.  Things are seriously headed in the wrong direction.

I used to walk the neighborhood that are properties are located in every chance I got.  Today walking what use to be the fairly safe Southside, would be insane. We are close to eclipsing Detroit as the most depressed city in America.

Categories
crime

Landlording: a dangerous job

Bloomberg has an article based on the U.S. Department of Labor report on how many people die at work, and why. (Click “as a percent”  and “violence or homicide” in the third chart)

As far as total number of deaths, landlords rank near the bottom, but as a percentage of those on the job deaths that are violent death, we are #4.  Still, it is more dangerous to be a cashier, which should be motivation for not taking cash in your business. At least it is at mine. 

Milwaukee has seen a couple of landlords murdered while working on their properties over the past few years.

 “Let’s be careful out there.” Sgt. Esterhaus, Hill Street Blues 1981

violent crimes against landlords

Categories
Apartment Association

Apartment Association: Changes in leadership

Below is this month’s President’s Column from the Apartment Association newsletter.  While Joe Dahl states his reason for stepping down modestly as “to pursue other opportunities” the truth is Joe was accepted into the Princeton PhD program where he plans to expand on what he learned as an urban landlord to study housing related issues.  It will be refreshing to see this type of study being done without the typical ‘all landlords are bad and homeownership is the only answer’ bias that so much of this work is founded upon. 

Joe’s life story so far is inspirational –  growing up on the near Southside and through pure self determination, moving beyond those roots, getting an MBA and now being accepted into a doctoral program at one of the top colleges in the nation.  I told him I want a cameo appearance when his story hits the big screen.  Joe credits his involvement with rental housing as an important part of his life and opportunities.

Joe was the most charismatic leaders of the Association in the 26 years I have been involved with the group. In that sense he will be missed.

However the Association will continue to thrive.  The incoming president, Jerry Carne, is long time landlord and a person who values action as well as understands fiscal responsibility. He will do well in this position, even if he may not look as good in a fedora as Joe. 😉

We have many other outstanding board members who continue to work hard behind the scenes.  Shari Engstrom, from Sid Grinker Restoration, has really stepped up the quality of our special events like the Trade Show, summer party and holiday parties.  Tristan Pettit remains intimately involved in the Association. Tristan and AASEW Attorney Heiner Giese work diligently to make sure laws are as favorable to our industry as possible.  Ihsan Atta is one of the sharpest and most personable people I’ve met. Carrie Maas has many connections within the industry and community.  Ralph Hibbard, from Orkin, probably has rental housing in his DNA as his family has been in real estate even before me.  Few of you probably see this, but Ralph is the real workhorse for the Association behind the scenes.  For better or for worse I tend to stick around for the AASEW, adding some continuity.   We have three newer board members who will find their stride and do well for us: Tim Dertz, Ronald Hegwood, and Brian Bartsch.  

While on a personal level I will miss Joe, from an Association’s standpoint “The Future’s So Bright, I Gotta Wear Shades” Timbuk 3

Two years ago I took the reins of the AASEW with the vision that we could grow membership and improve the industry through collective action. Supported by an outstanding board of directors I am proud of the progress we have made on both fronts. Leading the organization has been a tremendous honor and it is with a heavy heart that I must step down to pursue other opportunities. Effective June 1, 2015 board member, Jerry Carne, will become interim President.

Our organization is full of entrepreneurs, large and small, who have built businesses and improved their communities through responsible investment. As an industry with low barriers to entry it remains one of the few spaces in the economy where hard work, tenacity, and perseverance can overcome the barriers of lack of capital and connections. Ensuring this pathway to prosperity exists for others is the responsibility of all who have benefited from it.

Yet our accomplishments have not been without failure. For every landlord who responds to our call to action and joins, there are 5 who do not. Foolishly believing they can go it alone, or worse, content to free load off the structural changes we effect, this segment represents our greatest obstacle and opportunity. Their short-sightedness emboldens aggressive municipalities and inhibits are ability to resist them. Engaging them as members will be the difference between our success and failure.

Upon assuming the Presidency I promised to turn the AASEW around or run us into the ground. Maintaining the status quo was not an option and I sincerely hope our leadership carries this philosophy into the future. As an organization we must fight complacency and stagnation as aggressively as a bad laws, both are costly.

Leading the AASEW has made me a better landlord and business person and professional. It’s been integral to my success and has helped me forge a new path forward. It has been my honor to serve our members and work side by side with a group much more  talented and intelligent than myself to make Wisconsin a better place to own and manage real estate.

Thank you for the opportunity.

All the best,

Joe Dahl

Categories
Fair Housing Filling Vacancies

Can I declare my duplex “housing for older persons”

Over on the ApartmentAssoc Yahoo Group an owner asks:

I’m wondering if we would be discriminating to look for one person rather than two, whether a couple or whatever…because we are both over 55 and can’t take the noise we’ve taken through the years…even between couples yelling at each other. Do we have to declare the house 55 and older and find someone over 55 for the lower?  I thought I read a post that said if you are living in the other unit in the house you can…? 

Seems like Fair Housing question month.

Is this your personal residents?  There is an exemption to the Federal Fair Housing law for owner occupied 1-4 family properties. It is called the Mrs. Murphy exemption.   The exemption does NOT apply in Wisconsin however.  

Wisconsin 106.50 

106.50  Open housing.

(1)  Intent. It is the intent of this section to render unlawful discrimination in housing. It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, status as a victim of domestic abuse, sexual assault, or stalking, lawful source of income, age, or ancestry and it is the duty of the political subdivisions to assist in the orderly prevention or removal of all discrimination in housing through the powers granted under ss.66.0125 and 66.1011. The legislature hereby extends the state law governing equal housing opportunities to cover single-family residences that are owner-occupied. The legislature finds that the sale and rental of single-family residences constitute a significant portion of the housing business in this state and should be regulated. This section shall be considered an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity, and human rights of the people of this state.

If you do not live in WI here is a good reference to state laws on the “Mrs. Murphy” exemption:

Even under the Federal “Mrs.Murphy” exclusion you are not permitted to advertise an otherwise discriminatory preference, so if you do not qualify under the housing for older persons exemption you could not, lets say, advertise ‘adults only’ or ‘one person only’.  If you do qualify you can advertise 55 and older.

I could not advise you on the housing for older persons question as it is not a issue that I deal with.  

My assumption is if one unit is vacant you do not meet the standard, but I may be wrong.  I would ask the Division of Equal Rights directly:

https://dwd.wisconsin.gov/dwdsendmail/mailtodwd.aspx

Sub (5m)(g) may offer some relief:

(g) A person may not be held personally liable for monetary damages for a violation of sub. (2), (2m) or (2r) if the person reasonably relied, in good faith, on the application of the exemption under this subsection relating to housing for older persons. For purposes of this paragraph, a person may show reasonable reliance, in good faith, on the application of the exemption under this subsection relating to housing for older persons only if the person shows all of the following:

1. That he or she has no actual knowledge that the housing is not or will not be eligible for the exemption.

2. That the owner of the housing has stated formally, in writing, that the housing complies with the requirements for the exemption.

Categories
Fair Housing Tenant Screening

Renting and mobility concerns

 

Over on the ApartmentAssoc Yahoo Group an owner asks:

The person who would occupy the second floor apartment is older, and I have no real accommodation for mobility issues… is there a polite / legal way to ask before hand since I wouldnt be able to put them in once the person is there (( is there a list / guide to requirements in this regard ? )). 

You should make sure the applicant understands what they are renting ‘This is a second floor apartment’ , but not is a tone to discourage them from renting.    Obviously you cannot say ‘I think you are too old to climb our steps.’  

As far as accessibility modifications, in general you are required to permit the reasonable modifications but are not required to pay for the modifications in pre 1991 housing.  You can require the tenant at the time of move out to restore it to how it was prior to adding the accessibility modifications.  However in most cases doing so would be foolish as you the mod could be a high demand attribute that would make your unit more desirable to other tenants with similar needs. 

Apartments built or substantially modified after 3/1/1991 are required to meet the ADA standards. If that standard was not met during construction, the owner must update it to the ADA requirements. Of course you may be able to sue the builder to pay for it. 😉 

Here is a real good guide to the reasonable modifications requirements

You are required though to make reasonable accommodations, which is different than reasonable modifications.  An example is assigning a parking spot closer to the door for a person with mobility issues if they request this.  

One reasonable accommodation request  that many owners get wrong – if a person is on SSI due to a disability and therefore receives their check on a day other than on the first, you must modify their rent due date and not charge late fees. [Case]

When you decide it is up to you to determine what may or may not work out for a prospective tenant is when you get in trouble. 

There is a Fair Housing case from La Crosse where a landlord refused to rent to a single mom because the property had a long drive that was the tenant’s responsibility to shovel, which the landlord felt would be difficult for her to do.  The landlady’s attempt to take it upon herself to determine what would or would not work for the tenant cost the landlady $15,000 plus I’m sure some costs.  The right thing for the landlady to do would have been to point out to every prospective tenant that shoveling the driveway was their responsibility and failing to do so was a lease violation.

There are countless cases of owners who got in trouble for restricting families with children from living on the second floor, or living next to the pool.  The former being for the convenience of the other tenants and the latter being out of fear of children drowning.  Neither are legitimate reasons within the confines of Fair Housing.