Just a Landlord

M.C.O. 275-82-3

(3) Duty of tenant.

(a) If the premises are damaged, including by an infestation of insects or other pests, due to the acts or inaction of the tenant, the landlord may elect to allow the tenant to remediate or repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the remediation, 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.

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.

A reader of ApartmentAssoc Yahoo Group asks:

A tenant killed himself in an apartment in March. He paid March rent. Is under lease. His mother wants his sec. dep. back. Am I legally obligated to give her the sec. dep? I couldn’t get a new tenant in time for April.

Always look first to the statutes:

§704.165 (1) 

(a) Except as provided in par. (b), if a residential tenant dies, his or her tenancy is terminated on the earlier of the following:

1. Sixty days after the landlord receives notice, is advised, or otherwise becomes aware of the tenant’s death.

2. The expiration of the term of the rental agreement.

(b) Notwithstanding s. 704.19, in the case of the death of a residential periodic tenant or tenant at will, the tenancy is terminated 60 days after the landlord receives notice, is advised, or otherwise becomes aware of the tenant’s death.

(2) The deceased tenant or his or her estate is not liable for any rent after the termination of his or her tenancy. Any liability of the deceased tenant or his or her estate for rent under this subsection is subject to the landlord’s duty to mitigate damages as provided in s. 704.29 (2).

(3) Nothing in this section relieves another adult tenant of the deceased tenant’s premises from any obligation under a rental agreement or any other liability to the landlord.

(4) A landlord under this section may not contact or communicate with a member of the deceased tenant’s family for the purpose of obtaining from the family member rent for which the family member has no liability.

SB 179 was signed by Wisconsin Governor Scott Walker today and is now Wisconsin 2013 ACT 76.

The legislation affects evictions, towing, municipal ordinances, responsibility for bed bugs and other insects.  Most importantly it allows for crime free lease addendums. I believe that the effective date for most of the statute is March 1st.

We will need to modify our leases to comply with or receive the advantage of some of the provisions.

Many of you, okay a few of you as CBS 58’s news ratings have been in the toilet for years, saw last night’s broadcast on landlord tenant issues.

There were many factual errors in this news report that could cause you harm as a landlord if you blindly believed CBS 58.

1. SB 179 is not law today.  It will not become law until probably February first.  So if you begin implementing provisions contained in SB 179 today, you may be in trouble.  I would however encourage all of you to put the domestic violence disclosures in your leases today, as those provision have been law for a number of years.
2. The newscast made it sound as though WI law allows a tenant to use “Self Help” i.e. pay for a repair and deduct it from the rent.  Then the reporter confused this further by using the term “Rent Abatement”  to describe what the tenant had done.In Wisconsin tenants cannot hire someone and take the cost out of their rent unless you as the landlord explicitly agrees to allow them to do so. Tenants that follow the erroneous information contained in the newscast may find themselves receiving an eviction summons for nonpayment of rent, just as the tenant in the newscast did.

   “Rent Abatement”  is a completely different situation.  It only applies to conditions that materially affecting the health or safety of the tenant. This law does not permit rent to be withheld in full.

3. The reporter shows mold around the base of the tub surround and implies this is the landlord’s fault due to a toilet problem.  I’m unsure of the connection.  Usually a toilet moisture problem appears in the unit below or the basement.  It really seems to be much more a housekeeping issue.  My own tub would look like that too if I did not hit it with Clorox spray and a sponge every other week.  Whoops, cats out of the bag. My wife makes me help with the cleaning.  😉
4. The newscast states the new law reduces a landlords’ duty to disclose housing code violations.  Nothing in this respect was changed by the law, so your requirements are the same after this becomes law as it is today.
5. The reporter attempts to imply a porch collapse a few months ago at a property on 24th and National was the result of tenants being afraid to report a condition that required a repair.  The truth is the person seriously injured was a worker hired by the owner to make repairs to the porch.
6. The reporter more or less attacked Representative Strobel for sponsoring SB 179.  However Mr. Stroble really hit the mark when he pointed out the most important part of the bill is that once again we can have leases that prohibit criminal activity at our properties.
7. As my good friend Bill said:
   

   “This thread and this story, underline the need for the AASEW as industry leaders to put out their own stories and press releases.  We need to publicly respond to this kind of crappy reporting.  We are easy targets until we do.
   
   While we might not win the PR battle, we have to resist the bulldozer!”

   I agree with Bill except I probably may have ended the last sentence with a stronger word other than “dozer”

8.  There appears to be more to the story between the tenant and the landlord than the newscast reveals.  Below is a thorough analysis  by one of the Apartment Association  members.
   

   
   A review of the tenant’s CCAP record shows that she lived at 6115 s 13th street just before the landlord of her eviction address ( 2007-09 W Scott) bought the Scott st property. The record revealing this is an unemployment repayment warrant from around 2011. TV 58 reported Conrad  to be the landlord of the Scott  st property, but the actual owner is Southview Properties.

   Conrad may or may not be the actual landlord. He is the registered agent according to MKE property recording records.

   Guess where the Registered agent, Conrad ,  lives.

   6115 S 13th. Same bldg that the tenant lived in until she moved to the Scott st property.

   So, there is clearly a long history between this tenant and this landlord/registered agent and the tenant is attempting to exercise some vendetta by going to TV 58 and telling maybe 5% of the truth.

   But of course, TV 58 bought it all, hook line and sinker.

   I guess Snarlin Marlin was right, I shouldn’t be allowed on CCAP.  I might just find out the truth…

__._,_.___

In Milwaukee the city enforces a prohibition against occupancies with more than three unrelated people.  The answer on where in the code this resides is a bit  convoluted, but this is how the city arrives at that answer:

200-08-74. ROOMING HOUSE means any  building or part of any building or dwelling unit  occupied by more than 3 persons who are not a family or by a family and more than 2 other  persons for periods of occupancy usually longer  than one night and where a bathroom or toilet  room is shared.

If you meet this requirement you must have a rooming house license.  Now if each person has a bathroom and they promise not to pee in the other person’s bathroom can you have as many occupants as bathrooms?  I would think so.

200-8-33. FAMILY means, unless otherwise specified, a person occupying a dwelling unit, or dwelling unit with one or more persons who are legally related to such occupant by virtue of being husband or wife, son or daughter, mother or father, sister or brother, uncle or aunt, grandparent, grandchild, niece or nephew, first-cousin, mother-in-law or father-in-law, all of whom comprise no more than one nuclear family unit per household. Included in the term family are 4 or fewer legally assigned foster children, except that more than 4 may be legally assigned if all are related to one another as brothers or sisters. Family also means a domestic partnership of 2 individuals who meet all conditions of s. 350-245-3-a to e and at least 3 of the conditions of s. 350-245-5

As mentioned in the last post, WI Fair Housing recognizes housing code occupancy restrictions based on quantity of people.  It does not appear to recognize  ordinances based on relationship of the occupants:

106.50(5m)(e) It is not discrimination based on family status to comply with any reasonable federal, state or local government restrictions relating to the maximum number of occupants permitted to occupy a dwelling unit.

Are you breaking state law in complying with the city code?  Who knows, but it seems like the city ordinance conflicts with the Fair Housing law.

Occupancy standards, yours or municipalities’ should be based on the number of occupants and not their relationships. There are a couple of good, interesting U.S. Supreme Court cases on the issue. Justice Marshall wrote a very interesting dissent in Belle Terre v. Boraas, 416 U.S. 1 (1974) which was prior to the inclusion of familiar status protections

The most relevant part of Belle Terre dissent:

  MR. JUSTICE MARSHALL, dissenting. 

The instant ordinance discriminates on the basis of just such a personal lifestyle choice as to household companions. It permits any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limits to two the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home. Belle Terre imposes upon those who deviate from the community norm in their choice of living companions significantly greater restrictions than are applied to residential groups who are related by blood or marriage, and compose the established order within the community.  The village has, in [416 U.S. 1, 17] effect, acted to fence out those individuals whose choice of lifestyle differs from that of its current residents. 

A more recent case is Edmonds v. Oxford House, 517 U.S. 725 (1995) also is a good read

SB179 that passed last week requires language in your leases regarding protections under the law to victims of Domestic Violence.  While the law is not yet in effect, there is really no good reason not to include the language now.  Here is the required language:

NOTICE OF DOMESTIC ABUSE PROTECTIONS

(1) As provided in section 106.50 (5m) (dm) of the Wisconsin statutes, a tenant has a defense to an eviction action if the tenant can prove that the landlord knew, or should have known, the tenant is a victim of domestic abuse, sexual assault, or stalking and that the eviction action is based on conduct related to domestic abuse, sexual assault, or stalking committed by either of the following:

(a) A person who was not the tenant’s invited guest.

(b) A person who was the tenant’s invited guest, but the tenant has done either of the following:

1. Sought an injunction barring the person from the premises.

2. Provided a written statement to the landlord stating that the person will no longer be an invited guest of the tenant and the tenant has not subsequently invited the person to be the tenant’s guest.

(2) A tenant who is a victim of domestic abuse, sexual assault, or stalking may have the right to terminate the rental agreement in certain limited situations, as provided in section 704.16 of the Wisconsin statutes. If the tenant has safety concerns, the tenant should contact a local victim service provider or law enforcement agency.

(3) A tenant is advised that this notice is only a summary of the tenant’s rights and the specific language of the statutes governs in all instances.

You will also need to update your disposal of property language to include the new language on stuff left behind after an eviction, but that can wait until this law is in effect.

Late yesterday the Wisconsin Senate approved an Assembly amendment to SB 179.  This law, which should be in effect around the first of 2014, makes sweeping changes to Wisconsin Landlord Tenant Law.   The bill was a combined effort of the Apartment Association of Southwestern WI, The Wisconsin Realtors and the Wisconsin Apartment Association.

The Legislative Council Memo on SB 179 puts the changes in fairly layman terms. AASEW past president Attorney Tristan Pettit worked extensively on the bill.  He will be providing information on the changes at the AASEW Fall 2013 Landlord Boot Camp.

Highlights of the bill taken from the Leg Council Memo are, and this is my analysis of what is important and not a legal opinion by an attorney because as you know I am Just A Landlord:

Restrictions on Local Ordinances [Sections 1 to 4]

Municipalities are currently prohibited from enacting or enforcing ordinances that:

• Imposing a moratorium on eviction actions
• Places certain limitations on what information a landlord may obtain and use for screening.

New law adds prohibitions against ordinances that:

• Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
• Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
• Requires a landlord to communicate to the municipality any information concerning the landlord or tenants unless the information is required under federal or state law or is required of all residential real property owners.

Leases [Section 18]

Under current law, if a lease is void and unenforceable if it contains a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.  [s. 704.44 (9), Stats.]

The new law allows for Crime Free Lease Addendums as long as you include  a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats.  The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking.  The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premise

Timing of return of Security Deposit with regard to evictions [Sections 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.  [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins.  If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction.

Service of Summons in Eviction Action [Section 22]

Allows courts to permit service of eviction summons by Certified Mail.  This will be on a county by county basis.

Allows LLC to appear by member or agent, rather than requiring attorneys [Section 21]

Under current law, in any small claims action, a property owned by an LLC must use an attorney or full time employee of the LLC

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent.  This provision applies to all small claims actions, not only evictions.

Disposition of Property Left on Rental Premises After Eviction [Sections 9, 10 and 29 to 46]

Under current law, in Milwaukee County, the sheriff must remove and store the tenants’ property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property.

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise.  If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement. If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Towing of Vehicles [Sections 5 to 8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued.

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued.

This final one is the most complex of the changes and requires some Administrative rules to be created.

There is also a change regarding Mobile Home Parks, but I am not impacted and therefore did not review them.

I am a strong supporter of both the Apartment Association of Southeastern WI as well as believing all landlords should know as much as possible about our business.  Seminars such as the AASEW Landlord Boot Camp were the foundation that I built my knowledge of rental laws upon.  I encourage you to attend this fall’s AASEW Boot Camp.

This Boot Camp may be more important for those with a good understanding of the laws as it will go into detail on what to expect when the new Wisconsin Landlord Tenant Law passes later this month.

Continue reading »

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/