Just a Landlord

(Read about the law here)

Not sure what it means to you as a landlord?  Do not miss one of the most important Apartment Association meetings of the year!

Tristan Pettit, Heiner Giese, Bob Anderson of Legal Action of Wisconsin  and others will discuss the changes in the law and what it means to you as a landlord and how to be compliant.

When:   Monday June  18th 7 PM

Where:  The Best Western, 1005 S. Moorland Road, in Brookfield

Who: AASEW Attorneys Tristan Pettit and Heiner Geise along with Bob Anderson, a tenant advocate attorney to present an opposing view.

Cost:  Free to current AASEW members, $25 to guests, or $59 with a 2012 AASEW membership included.

The focus of the meeting will be on Wisconsin’s new Landlord Omnibus Law (Act 143).  We will have two landlord attorneys (myself and AASEW attorney Heiner Giese) and one tenant attorney (Bob Andersen of Legal Action of WI) on our panel.

We will discuss the major changes to the law, give our opinions as to how those changes will be interpreted by courts, and advise you as to what you will need to do to be in compliance with the new law.  Oh yeah . . .  and we will also answer your questions.

And you will get FREE food as well.

The meeting will be held at the Best Western Hotel located at 1005 S. Moorland Road in Brookfield WI.

Cost to attend is free to members of the AASEW and $25 for non-members (or choose to become a member and pay only $59 and avoid the $25 fee).

It should be a great evening of discussion and education.  I hope that all of you can attend.

Wisconsin’s Act 143 Landlord Omnibus bill has been of great concern to owners that have read the content as well those who have read the Legislative Council memo on the bill.

AASEW Attorney Heiner Geise had researched this a bit and came to the conclusion it is not quite as bad as originally thought.  He received an opinion consistent with his view from the Leg Council.

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The following is a pretty good overview of the new law from Margit Kelley, Staff Attorney at the WISCONSIN LEGISLATIVE COUNCIL   The Legislative Council is a nonpartisan research agency of the Wisconsin Legislature.

Read their full analysis

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The Wisconsin Landlord Tenant Law Omnibus bill was signed into law by Governor Scott Walker around 4 PM March 21st, 2012.  You must be in compliance with the provisions for tenancies  entered into beginning April 1st.

One thing the bill does is add a new prohibited lease provision:

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The enrolled version of the bill (a copy with all the amendments  incorporated and as signed by the Governor)  was released late yesterday.

As you look at the part of your lease that addresses criminal activity I am thinking that adding “… unless the tenant could not reasonably have prevented the crime”  should keep your lease valid, but have not reviewed this in depth with our attorneys.

Now go modify your leases to take advantage of the benefits and to avoid running afoul of the other changes.  That is what we will be working on for the next ten days before a new lease is required.

Question:  If there is a  material falsification of information provided by a tenant on the  rental application, what are your options? (Granted a good screening process should have caught it).

Once you accept a tenant you must allow them to move in, even if they  materially falsified the app. This is covered under the ATCP 134:

ATCP 134.09(6) (6) FAILURE TO DELIVER POSSESSION. No landlord shall fail to deliver  possession of the dwelling unit to the tenant at the time agreed upon  in the rental agreement, except where the landlord is unable to  deliver possession because of circumstances beyond the landlord’s  control.

An interesting question would be if they lied about who they were,  i.e. gave a false name, could you refuse to let anyone but the person named on the lease to move in?

Preventing this? Hard. If you ran a credit report, that should have show other names used. A pre-acceptance home visit may have exposed the inconsistencies and extra adult.

This one bit us in the butt a few years ago. We were evicting a woman because her two adult daughters had moved in with her and were  performing prostitution in the basement of the building. We had an applicant for a different address who we accepted. One of my managers saw the woman we accepted in the waiting room and asked what she was doing her as she was the prostitute daughter of the tenant we were  evicting from Walker street.

We refused to allow the woman to take the other unit and gave her back all of her money. She got an attorney and they won the  argument in court. We were required to give her  $500 in addition to her earnest money, which we had already given back.

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?

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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):

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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

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