Sep 30

A lot has changed in Milwaukee County eviction court over the past nine months. Recently a property owner we do work for faxed in a five-day notice she filled out herself, requesting we give it to the attorney and proceed with an eviction.

Our staff immediately noticed two problems with the notice that would cause the eviction to fail:

  1. The owner listed late fees on the notice
  2. She had used an older “fill in the date” 5-day notice. The date she entered was five days after the day she mailed it certified.

I had to call the owner and tell her she needed to start over with a new five day. She was upset and said this was the last financial straw – she is ready to walk away from the properties.

While hopefully she rethought this, it reminded me of the need to post these changes again so the rest of us do not make the same mistakes.  So what are these are  changes …

Changes / Correction in Milwaukee Eviction Procedure since March 1st, 2009.

  • If you use the old “fill in the date” style 5-Day notice and have the wrong return due date your case will be dismissed. For example you wrote the notice out on the 10th with date of the 15th but do not serve it until the 11th because the tenant was not home your case will fail.If you mail it certified on the 10th it will fail, because you must add two days for mailing. (The court used to allow the eviction to proceed if the owner waited the proper time before filing.) The new style notices avoids this problem by using the phrase “within 5 days from service hereof” This notice is available on the AASEW website.
  • If you include late fees, damages, utilities or security deposit on your 5-Day (assuming a month to month) your case will fail. A 14-Day notice would be proper.
  • However if it is a year lease then you must use a 5-Day breach notice and a 14 Day would fail. Just because the charge is on the lease the tenant signed, it does not mean the charge can be included on a five day.
  • Milwaukee County Eviction Commissioners are dismissing or modifying cases if the owner’s name on the summons does not match the city treasurer records. For example if you have a management entity separate from the property ownership you may not evict in the management entity name, but rather the owner as registered with the county..
  • Prior to August the court would allow a member of an LLC or a full time employee of an LLC to appear for the LLC without an attorney. Beginning in August they are requiring LLCs to appear by attorney or full time employee. Their definition of full time employee is a person on payroll who is employed by the property ownership entity. Most LLC rental property owners do not take their income as wages, but as dividends.

Are these changes legal?

All of these recent changes have some basis in law. However there are two areas which the Court bends the rules to the detriment of the owners

Stays on Eviction (giving the tenant extra time to move)

One the largest discrepancy between procedure and statute, the application of stays of eviction. Basically under the statute if the plaintiff complies with all of the rules the tenant should be immediately evicted. The Court may grant a stay of up to thirty days conditioned on the tenant paying all past and current rent through the last day of the stay as required by 799.44(3) [copy below].

Currently the court allows tenants to stay in the property without paying past and future rent.  Milwaukee County Court has a two decade old “tradition” of allowing at least two day stay per child. I question if the court’s policy of “two days per child” also violates state and federal fair housing laws which prohibit treating people different based on family status.

In the past when reminded about the statute on stays the Commissioners would agree that the stays without payment were contrary to statute, but then quickly added that owners would not be happy either if the statutes were strictly followed in eviction cases. We understood this quid pro quo and never pushed the stay issue.

Since March the court has decided it wishes to strictly follow the statute as it applies to owners. Likewise it is now time that the court stops ignoring the statute prohibiting stays without payment of past and future rent.

Statute requiring tenants to pay all past due rent and charges prior to receiving a stay

799.44(3) Stay of writ of restitution. At the time of ordering judgment, upon application of the defendant with notice to the plaintiff, the court may, in cases where it determines hardship to exist, stay the issuance of the writ by a period not to exceed 30 days from the date of the order for judgment. Any such stay shall be conditioned upon the defendant paying all rent or other charges due and unpaid at the entry of judgment and upon the defendant paying the reasonable value of the occupancy of the premises, including reasonable charges, during the period of the stay upon such terms and at such times as the court directs. The court may further require the defendant, as a condition of such stay, to give a bond in such amount and with such sureties as the court directs, conditioned upon the defendant’s faithful performance of the conditions of the stay. Upon the failure of the defendant to perform any of the conditions of the stay, the plaintiff may file an affidavit executed by the plaintiff or attorney, stating the facts of such default, and the writ of restitution may forthwith be issued.

Stipulated Dismissals

For the past half dozen years the Court increasingly encourages evictions to be dismissed with a stipulation that the tenant either pays by a certain date or vacate by a certain date.  If the tenant does as agreed the eviction shows as dismissed, thereby tricking future landlords into believing they were not evicted.

In fact some commissioners almost force the use of a stipulation rather than a stayed writ.  However if you have followed all the rules then the court must give you the writ, rather than a stipulation.  Don’t worry if you haven’t followed all the rules the Court will dismiss your case and you will have to start over.

A future problem with stipulations is the recent legislative assault on CCAP (court records) access that if passed, will hide stipulated dismissals.  This will allow both none paying  and disruptive tenants to be able to hide their histories from prospective landlords.

Note: I am just a landlord, and NOT an attorney.  If you need legal advice or have appendicitis, don’t rely on something you read on the internet to do it yourself.  Rather, hire a competent professional.

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