When does the moratorium on late fees expire under EmR2002, the DATCP emergency rule?
There have been a variety of end dates of the late fee moratorium suggested in the media, anywhere from August 8th to September 21st. However, my opinion is the end date is July 23rd
The Wisconsin Department of Agriculture, Trade and Consumer Protection in April issued an emergency rule that temporarily banned fees on late or missed rent payments. Ti Gauger, a department spokeswoman, said the ban lasts until Aug. 8.
Source
This is a mathematically improbable date. If the Public Health Emergency ended with the May 13th Supreme Court decision, then 90 days is August 11th.
However, EO 12, Governor Evers/Secretary of Health Palm’s PHE order, expired on 4/24. EO 28, which purported to extend EO 12 was invalidated by the WI Supreme Court on May 13th, 2020 in 2020AP765-OA:
By the Court.—Palm’s Emergency Order 28 is declared unlawful, invalid, and unenforceable.
If EO 28 was “unlawful invalid and unenforceable”, then it should have no consideration in the 90 day period of EmR2002. Therefore, did the Public Health Emergency end on 4/24 with the expiration of EO 12? I would believe so.
If the Public Health Emergency ended 4/24/2020, owners that wish to charge late fees should be able to 90 days after, July 23rd.
While I’m not certain I agree, an extreme view is that EmR2002 is invalid in its entirety as it was enacted the day after the Public Health Emergency legally ended.
We need to ask DATCP for clarification of the dates of the moratorium in light of 2020AP765-OA
This is not to suggest of course that you SHOULD charge late fees, that needs to be an individual decision based on the economic and social conditions in July or August.
I urge owners to work with tenants who are struggling due to this unexpected and extreme upheaval in the American economy. If your tenants do not succeed, neither will you.
My company waived all late fees for April, well before the moratorium was enacted. But that was a personal decision and not an unfunded government mandate.
