Author: Tim Ballering

Categories
ATCP 134 Leases & Rental Agreements

‘My tenant harrasses other tenants until they move out’

A reader of the LandlordAssciation Yahoo Groups asks what can they do about a Wisconsin tenant who harrasses everyone that moves in above them into moving.  The owner is using a generic lease that is silent on the subject.

In WI absent a conflicting provision in a lease, §704 applies.  In particular, for this problem §704.05 (3).

http://docs.legis.wisconsin.gov/statutes/statutes/704/05/3

704.05  Rights and duties of landlord and tenant in absence of written agreement to contrary.

(1)  When section applicable. So far as applicable, this section governs the rights and duties of the landlord and tenant in the absence of any inconsistent provision in writing signed by both the landlord and the tenant. Except as otherwise provided in this section, this section applies to any tenancy.

…..

(3) Use of premises, additions or alterations by tenant. The tenant can make no physical changes in the nature of the premises, including decorating, removing, altering or adding to the structures thereon, without prior consent of the landlord. The tenant cannot use the premises for any unlawful purpose nor in such manner as to interfere unreasonably with use by another occupant of the same building or group of buildings.

This also works to get rid of drug dealers etc if your lease does not have such a provision.  The fact that this is statutory probably gives you better footing for an eviction that simply being in your lease.

But before you rush off and draft a crafty lease of your own, remember that in Wisconsin if your lease violates one of the “Nine Deadly Sins” contained in §704.44, the entire lease is void as to the landlord enforcing it, but a tenant may enforce the remaining parts they like.

 

Categories
Rental Weatherization Rules

WI Rental Weatherization Rules

In Wisconsin rental properties must meet a minimum weatherization standard when sold after 1/1/1985.  The rules are set out in the Administrative Code SPS 367

An owner writes with some questions on these requirements:

Tim

I am selling a duplex and it is to be kept as a rental—–bought it 15 years ago

Do you have a suggestion for a re-inspection and approval?

Does the buyer or seller pay for the inspection/updating?

 

If you bought it 15 years ago it had to have been DILHR’d.  They are good for the life of the building.  All you need to do is record the cert.  Cost is $35 at the Register of Deeds at the Courthouse.

If you lost the cert you can get a recordable copy for $50 by filing out this form

To look up your property to see if it was done check the Wisconsin Rental Weatherization Database

If it wasn’t done, then either you can do it before sale or the buyer can enter into a stipulation to do it within a year of purchase.

Categories
5-Day Notice Apartment Association ATCP 134 Collections DIY Evictions Evictions Fair Housing Filling Vacancies Leases & Rental Agreements Security Deposit Tenant Screening WI L/T law

How to avoid the pitfalls of WI landlord tenant law

Our world is full of traps for rental owners… Fail to document the deposit return letter when was sent and a $300 deposit turns into $5,000 with attorney fees. Try to be helpful and not rent the third floor walk up to a person with a bad leg and pay $10,000 in a Fair Housing claim. Likewise tell the person with the companion dog that there is no way you are renting to a person with a Pit Bull and pay another ten grand. Give the tenant with a year lease a 14 day for disturbing the neighbors and breaking your windows or the tenant with a month to month a 5 day for the same reason and you will have to start your court case all over again. The list of pitfalls is endless and growing.

So how do you collect your rent, fill your vacancies and evict tenants without getting in trouble or having expensive do-overs?

You could throw your arms in the air and give up, but that probably is not the most effective approach. You can go through life figuring these are things that only happen to the other guy or to”bad” landlords. That works for a while until you become the other guy. You could hire an attorney to be along side you for every decision, but that probably is not financially effective.

The only viable answer is to know the laws that affect us well enough to either know the answer or know when you need help. You can venture out and learn as you go through your own mistakes, usually a very expensive education – there is a reason they call it the school of hard knocks, or you can get as much education as practical before you find yourself on the losing end of a legal battle.

I started with the learn as you go method. It cost me three grand in 1982 dollars when a tenant that snuck out in the middle of the night sued for their deposit. I lost because I did not know the law well enough to make the proper argument that the 21 days did not start on the day they skipped out, but rather on the day I found they moved. So my letter sent seven days after I found a vacant apartment was proper, but laws only work for those that know them.

My next education was a Bob Smith Landlord Tenant Law course at Marquette. Much more informative and less expensive. A couple of years later Bob condensed this into a full day landlord tenant law for the Association. It cost somewhere around two hundred dollars and included his book “Landlord Defense: Eviction and Collection manual” that had most of the forms needed. For those who want to stroll down memory lane, here is a Sentinel article with a really young picture of Bob:

The Association continues to offer the best landlord tenant law course out there. The Landlord Boot Camp gives you the fundamentals in a full day Saturday class. It is updated to include the latest law changes and includes a 100 page plus manual. It is presented by Attorney Tristan Pettit who writes the standard landlord tenant forms for Wisconsin Legal Blank. Tristan also worked on SB179 that may become law later this month. If it does pass he will have an insiders view on how this law can be best utilized by owners.

The next Boot Camp is Saturday October 26th 8:30 AM to 5;30 PM. Costs is $159 for AASEW members and $249 for non-members.

Learn more or sign up at:
http://landlordbootcamp2013.com/

Categories
Apartment Association Cost Controls

The Apartment Association’s future

For the past two and a half decades or so, I put a lot into the Apartment Association.   I remain a board member and avid supporter of the organization.

We did some good and prevented some bad during my tenure on the board.  We’ve had very impressive leaders before and after my presidency such as Dave Domres , Attorney John Savage and Attorney Tristan Pettit.  We’ve also had some of the brightest minds working behind the scenes to make things happen, such as Jeff Chitko, Bill Lauer and Attorney Heiner Giese. Countless others did a lot for the Association and industry  such as Jim Dropp, Joe McLean, Bob Jovanovich, Dave Ohrmundt, Richard Bishop, Kim Queen and many, many more. The list of achievers is truly too long to list here.

This crowded slate of superstars really makes standing out difficult for even the best.

Then along comes our latest president, Joe Dahl and I am in awe.  The guy has been AASEW president for 10 months now.  In that short time he has accomplished the near impossible.

During the housing downturn Home Depot cut back on Pro reps and dropped their AASEW membership.   I tried for a couple of years to get them to return as a sponsoring member. No dice.

Not only did Joe get Home Depot to rejoin, but in the process secured a 20% discount on paint and a 2% rebate on everything else for our members.  Then he went on to get member discounts* from Sherwin Williams, Wisconsin Legal Blank, Pittsburgh Paint and many more vendors we use everyday.  The rebates more than pay for most member’s dues.  To stay competitive in this industry you will almost have to be a member.

We had a couple of good trade shows when Carmen produced them, but let’s be truthful, the last few year’s shows were dogs.  This year Joe enlisted the help of Shari from Sid Grinker, who along with Bill from ABC Sewer made this an outstanding event for both the industry and the vendors. The place was packed.   When you see either of them give them a big thanks.

Joe convinced some outstanding people to join the board such as Jon Krause, formerly of OnMilwaukee.com, Steve Johnson and Aaron Moseer.  These guys are young and sharp. (young of course being relative)

Our general membership meetings this year were often at capacity.  This was due to good marketing and strong subject matter.

Although not an Association event, Joe personally put on a very successful and impressive fund raiser for Senator Lasee who has been a friend of real estate and housing.  Something like 60 influential people from the rental industry attended.  I’m sure the Senator was pleased.

This kid — and  I can call him a kid because he is a couple of years younger than my oldest son —  is sharp and willing to do the work.  Joe holds an MBA, while at that point in my life all I held was a hammer and a paint brush.  😉  So far the only bad thing I can say about Joe is sometimes he swears enough to make a sailor blush, but he promises me he is working on that.

If you were a member, but no longer are, or if you never were a member, you should check out what the organization is becoming under Joe’s leadership. If you are a member you should take advantage of the discounts* and throw your support behind Joe and his team. If you are a larger owner that is not in the Milwaukee area it may make sense for you to join just for the discounts.

The 1980’s group Timbuk3 must of been thinking of us when they wrote “The future’s so bright, I gotta wear shades”  Bit of trivia – Timbuk3 was a Madison WI band.

* November 18th general meeting, which is the board election, the Association will be presenting a guide to all of the discounts and how to use them to your best advantage. I believe this is a member only event, but will verify and post more later.

 

Categories
5-Day Notice DIY Evictions Evictions WI L/T law

Accepting Rent After Filing An Eviction

A reader of our discussion list at ApartmentAssoc@YahooGroups.com asks the following:

I have couple questions regarding to eviction. I have given notice, which due yesterday. If the rent arrives shortly after the court paper file, Can I take the payment but still be able to go head with the eviction because I really don’t want to continue with this tenant?

My notice is for August’s rent. When I file the court paper, Am I be able to sue for August’s and September’s together?

Easy part:  At the second and third cause hearing you will be able to claim the September rent, October rent if the case drags out that long and damages and should get a judgment assuming personal service or publication of the summons.  Whether you will actually collect those amounts is often a different matter.

More difficult part:  The Statute changed in March 2012 to state that acceptance of rent after the expiration of a notice terminating tenancy for nonpayment does not void the eviction action.  I feel the statute can be read in a manner that it may only apply if you commence the action prior to taking the money.  But remember I am not an attorney, just a landlord.

Also in practice it appears that Milwaukee County Courts tend to still view acceptance of rent as an agreement to cancel the eviction.

The new law

799.40  Eviction actions.
…
(1m) Acceptance of rent. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may not be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant’s tenancy.

Categories
Fair Housing Filling Vacancies Tenant Responsibilities Tenant Screening

Is being “helpful” a Fair Housing Violation?

The LA Times has an interesting discussion on an issue that concerned landlords get wrong.

Let’s say you have an applicant with a noticeable walking disability.  Being a caring person you try to steer  the prospective tenant to a first floor unit without steps as you feel that would be more convenient for them than the second floor walk up they are interested in. They insist they want the upper, you feeling they will not be comfortable with the upper insist they take the lower instead.

Pointing out you also have lowers available is good business and a service to the applicant, refusing or actively discouraging renting an upper is a fair housing violation.

This seems counter intuitive when all you were trying to do was what you felt was best for the applicant, but, maybe they like many others feel safer from crime on a higher floor and are willing to make the trade off of the inconvenience of steps for the added feeling of security.  As a landlord this is not your decision to make and what may be your personal preference in a similar situation may not be your tenant’s.

Same thing with the family with kids that wants to apply for an upper.  You offer them a lower because you fear the kids running around will create problems for lower tenants and may result in you having to evict them.; or you have a complex with kid buildings and no kid buildings; or prohibiting families with children from living in units nearer to the pools.  These too are fair housing violations.

In these cases it is up to the parent to insure their kids are safe and follow the rules. You have the ability to check their rental history and reject them if they or their family were disruptive at prior residences.  But it is the disruption and not the kids that must be your deciding factor. Really what does it matter to you if it is kids running around making noise or the old man coming home drunk and loud every night – disruptive behavior is disruptive behavior.

 

 

Categories
Fair Housing Tenant Screening

The use of criminal checks in tenant screening.

There has been a lot of concern among property owners and manager that the use of criminal background checks during screening will soon become problematic with the renewed emphasis on disparate impact claims.

Barron’s has an article that discusses a case involving the use of background checks in employment.

A federal judge cast doubt on government efforts to restrict employers’ use of criminal-background checks in hiring as he dismissed a lawsuit by regulators against a Dallas event-marketing company.

This is such a difficult area.  You don’t want to rent to those who will harm others in the building, the neighbors or cause damage, but you also do not want to run afoul of Fair Housing in the process or deny housing to those who would be good tenants.

We have seen public access to court records, such as Wisconsin’s CCAP, come under seemingly constant attack.  Perhaps this case will in part answer that question.

Categories
Fair Housing

2 people per room rule may violate Fair Housing Law

HUD Press Release 

 

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) announced today that a national property management company will pay $15,000 under an agreement resolving allegations it discriminated against a Connecticut family with children.  A Middletown, Connecticut husband and wife alleged that employees at Hamilton Point Property Management, LLC refused to renew their lease after concluding the family of five was too large for the two-bedroom apartment they occupied for nearly a decade.

This is an important decision.  What was a well understood rule has been overturned.  The real question is what happens when this and housing codes collide.

Categories
Uncategorized

WI Attorney General on charging for carpet cleaning

Attorney General J.B. Van Hollen Issues Formal Opinion Concerning Residential Lease Provisions Requiring Departing Tenants to Pay for Carpet Cleaning

MADISON — Attorney General J.B. Van Hollen today issued an opinion to Department of Agriculture, Trade and Consumer Protection Secretary Ben Brancel in which Van Hollen concluded that Wisconsin law does not prohibit residential lease provisions that require a departing tenant to pay for routine carpet cleaning. Van Hollen determined that such a provision is not in conflict with a landlord’s statutory duty to maintain the premises “in a reasonable state of repair” under Wis. Stat. 704.07(2). Because routine carpet cleaning is not a statutorily-imposed obligation of a landlord, assigning this responsibility to a tenant through a contractual provision does not render a rental agreement void.

The full opinion letter is here:

‎https://docs.legis.wisconsin.gov/misc/oag/recent/oag_4_13

NOTE: This opinion does NOT permit the deduction of the carpet cleaning from a security deposit.

So then what does this do for owners?

Very little to collect extra money from tenants.  However, it forecloses tenants’ arguments that we had a common law duty to clean between tenants, i.e. cleaning is not part of a reasonable state of repairs.

I can also see this being used when DNS issues orders for housekeeping on the owner rather than the tenant.

It also clarifies you can have a lease that requires a tenant to clean when they move. You just have to bill them outside of the deposit.

Bottom line:  Personally I  never felt an across-the-board fee for carpet cleaning was anything more than a fee for moving out, which is probably a bad business practice even if it were legal.  Cost should be imposed on those tenants that do not leave the place reasonably well, while those that take care of the place should be treated in a manner they would rent from you again or tell their friends to do so.

Categories
crime Fair Housing Tenant Screening

Housing sex offenders

Last Milwaukee Channel 12 did a piece on landlords renting to sex offenders and receiving state checks for the rent.

Our company screening criteria rejects sex offenders, but there is a larger question out there that will someday impact all of us.

So these guys, well usually guys, I think there are a few female teachers on the list as well,  are arrested, sentenced to a specific term, do the time and ….  drum roll please … are released.

Now what?

They have served the sentence.  They have to live somewhere after prison, but where?  The near universal answer is ‘Not, next to me!’

If we (society) do not get out in front of this question I anticipate legislation one of these days that will force rental owners and condo associations to accept sex offenders as well as other dangerous criminals.   Madison/Dane County already have laws that restrict screening for criminal activity, making criminals a protected housing class.  Currently sex offenders are exempt from the Madison ordinance.

In Miami  sex offenders lived in a tent city under the Julia Tuttle Causeway (bridge) between the mainland and South Beach as it was the only place that was far enough away from schools, parks, day cares etc that they could legally live in Miami-Dade County.

The ACLU sued Miami over their ordinance.  The Councilman who created the ordinance banning sex offenders from the county ultimately applied for and received federal stimulus fund money  to house the sex offenders in a trailer park filled with kids at a cost of a $1,000 per month per offender. If you read this and it made no sense then you read it correctly.

The answer?

I’m not smart enough to know the answer, just smart enough to see the question and know that any answer arrived at will put rental owners in a tough spot.