Act 76 – Wisconsin’s New Landlord Tenant Law – Part 5: Domestic Violence Notice Langauge & More Prohibited Rental Agreement Provisions

Act 76 has made many changes to Landlord-Tenant law in Wisconsin, some of which I have explained in prior blog posts.  One of the biggest changes, which I have not yet blogged about, is the requirement that a landlord include language notifying tenants of certain domestic abuse protections in all rental agreements or addenda as of March 1, 2014.

The required language is set forth in sec. 704.14, Wis. Stats. and must be included verbatim in the rental agreement - it cannot be modified or summarized.

The language that must be included is:

 

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.

 

Unfortunately many landlords are not even aware of this new requirement.  Others complain that this will make their rental agreements 1/2 page longer.  Depending on formatting – this very well may be true.  Nonetheless, any rental agreements that are entered into or renewed as of March 1, 2014, must include this language.  If your rental agreement does not contain this language you your rental agreement will be declared void and unenforceable.

Why is that you ask?  Keep reading.

Act 76 also modified and created additional provisions that cannot be included in a Landlord’s rental agreement.  If a landlord includes any prohibited provision in his/her rental agreement the lease will be void and unenforceable.  I affectionately refer to these illegal provisions as the “10 Deadly Sins.”

Act 76 created the 10th Deadly Sin which is directly related to the DV protection language discussed above.

A rental agreement will be void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property if it does not also include the new domestic abuse protection language set forth in sec. 704, 14, Wis. Stats.

This is huge.  So hopefully any rental agreements that you have entered into since March 1st of this year contain this required language.  If they do not, you should immediately create an Addendum to your rental agreement that includes the DV notice language and send it to your tenants immediately so that you are in compliance.  If you are using pre-printed rental agreement forms you must insure that they have been updated to include this language.  I can assure you that the rental agreement form that I draft for Wisconsin Legal Blank Co. has had this language added.  Going forward you only should be using the WLB rental agreement form that has a publication date of 2/17/14 or later.

Act 76 also modified the 9th Deadly Sin which was created by Act 143 (which became law in March 31, 2012).  The “old” 9th Deadly Sin stated that a rental agreement was void if it allowed a landlord to evict a tenant as a result of a crime committed in or on the rental property if the tenant could not have reasonably prevented the crime.  This language was problematic for many landlords.  As such the 9th Deadly Sin was modified in Act 76 to read:

A rental agreement will be void and unenforceable if it contains a provision that allows the landlord to terminate the tenancy of a tenant based solely on a crime being committed if the tenant, or someone lawfully living with them, is a victim of that crime.

Hopefully there will not be any new Deadly Sins created in the near future.  If there are, we will end up having more clauses that cannot be included in a residential rental agreement than can be included ; ).

 

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Only 7 Days Left To Sign Up For Landlord Boot Camp on March 8th

There are just 7 days left to register for Landlord Boot Camp!!!

Come learn about Wisconsin’s new Landlord Tenant law – Act 76 – plus everything else you need to know about Landlord-Tenant law in Wisconsin.

The Apartment Association of Southeastern Wisconsin’s 9th “Landlord Boot Camp” can help you navigate these treacherous waters and learn how to run your properties with greater profit and less hassles.

Who:           Taught by Attorney Tristan Pettit, who drafts the landlord tenant forms for Wisconsin Legal Blank

When:        March 8th, 2014 Saturday 8:30 AM – 5:30 PM Registration opens at 7:00 AM

Where:      Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included: 100 plus page manual to help you put what you learn into practice.

Price:       Members           $159.        Non-Members   $249

You will also receive lunch.

Specials: Not a member?  Pay just $1 more than the non-member price and receive both the Boot Camp and an AASEW membership for the remainder of 2014 including member discounts at Home Depot, Sherwin Williams and more.

Wisconsin landlord-tenant laws are constantly changing and with Act 76 becoming effect on March 1st — the law has had some significant changes.

What you will learn at the Apartment Association’s 2014 Landlord Boot Camp:

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, as amended in March 2012 by Act 143 and again in March 2013 with the passage of Act 76, including:

  1. How to properly screen prospective tenants.
  2. How to draft written screening criteria to assist you in the selection process.
  3. How to comply with both federal and state Fair Housing laws including how to comply with “reasonable modifications”  and “reasonable accommodations” requests.
  4. How to legally reject an applicant.
  5. What rental documents you should be using and why.
  6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
  7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
  8. When you are legally allowed to enter your tenant’s apartment.
  9. How to properly draft an eviction summons and complaint.
  10. What to do to keep the commissioner or judge from dismissing your eviction suit.
  11. What you can legally deduct from a security deposit.
  12. How to properly draft a security deposit transmittal (“21 Day”) letter
  13. How to handle pet damage.
  14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
  15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).
  16.  Who can appear in court to handle an eviction as of March 1st.
  17.  What language you must have in your rental agreement starting March 1st or risk a court declaring it void and unenforceable.

Last year’s AASEW Landlord Boot Camp was filled to capacity.  So call early to reserve your spot.

The easiest way to register is to do so online at www.LandlordBootCamp2014.com or you can call the Association at (414) 276-7378 or email them membership@apartmentassoc.org today to reserve your spot.

 

Hope to see many of you there.

T

 

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New CCAP Bill Introduced

A new CCAP bill (Senate Bill 526) was introduced on January 30, 2014 by Senators Grothman, Taylor, Schultz, Harris, and Risser.  A public hearing has already been held.

Current law allows for any criminal charge to remain on CCAP even if the charge was dismissed.

This new bill, if passed, would require the Director of CCAP to remove a case involving a misdemeanor or felony from CCAP within 120 days after being notified that the case or charge has been dismissed (and not read into the record for the purposes of sentencing the defendant), the defendant was found not guilty, or the case was overturned on appeal and dismissed.

I am a fan of open records and not removing information about open records that are on CCAP.  While I personally do not have a problem with a criminal charge being removed if the defendant was found not guilty or the case was overturned on appeal and dismissed, I still believe that doing so still interferes with open records, but I can bite my tongue nonethless.

On the other hand, I have a huge problem (and concern) with a criminal case being removed from CCAP solely because it was dismissed.

Many people unfamiliar with the criminal justice system assume that if a case was dismissed that that means that it was filed in error.  While that certainly does occur, that is not the typical situation in which a case is dismissed.  The majority of criminal cases are dismissed, not becasue they were impropely filed, but rather because the victim witness did not appear at trial to testify against the defendant and therefore the State could not prove their case.  This happens quite often especially in crimes involving domestic violence.

When I was younger (and stupider) I used to do some criminal defense work.  I finally quit being a criminal defense attorney after I represented a young man that was charged for the 8th time with Domestic Violence – Battery.  It was alleged that he beat up his girlfriend.  All 8 times it was alleged that he beat up his girlfriend.  I attempted to meet with my client to prepare for trial.  He refused, just smiled, and told me that it was not necessary.  I told him that I could not represent him properly if we didnt prepare.  He told me again not to worry and that there would not be a trial.  I reminded him that there was a “no contact” order in place and that he was not allowed to contact the alleged victim so how would he know if she was or was not going to appear in court to testify against him.  He smiled and said he would never do anything against the law.

The trial date came and the victim did not show.  As a result the District Attorney was forced to dismiss the charge against my client as without the victim the DA could not meet their burden.  My client smiled at me and said “See, I told you you didnt need to worry – no trial.”  He then walked out of the court room.

Even though I was young and stupid, I was not naive.  I knew very well that this individual most likley had talked to the victim and either threatened to harm her if she came to court to testify against him or he actually did harm her to make sure she understood.  The same thing probably happened the prior 7 occassions as well.

I would not want to rent to this person.

Under this new CCAP bill, those 8 criminal charges for DV-Battery against my client would be removed from CCAP and a future landlord would not even know they had been filed or that s/he would be renting to a person that felt it was acceptable to beat up his girlfriend whenever he couldn’t control his anger management issues.

If you have similar examples from propspective rental applicants that you have screened recently, please forward the details to me directly at tpettit@petriestocking.com.  Let’s make sure the politicians are aware that this type of behavior does actually occur and how it may hurt our industry, if such a law is passed.

Thanks

T

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Revised Wisconsin Legal Blank Forms Will Be Available on Monday, February 17th

As I hope most of you are aware, Wisconsin passed a new law that will great affect landlord-tenant law – Act 76.  Whenever the law is changed, there is usually a need to revise and/or update your rental documents to comply with the law.  That is definitely the case with the changes from Act 76.

As such, I have had to update many of the rental documents that are sold at Wisconsin Legal Blank.

The new law becomes effective March 1, 2014.  So for those of you that use the WLB forms you will want to use these revised forms for any new tenancies that commence on or after March 1, 2014.

The following Wisconsin Legal Blank forms have been revised:

 

1.   Residential Rental Agreement (#19)

The changes made to this form are very important.  As of March 1, 2014, it will be required that all residential rental agreements include certain language that provides notice of domestic abuse protections.  Act 76 states that a rental agreement will be void and unenforceable if it allows a landlord to terminate a tenancy for a crime and the rental agreement fails to include the domestic violence notice language.  As a result of having to add this additional language verbatim the Residential Rental Agreement form will be much longer.

Several other changes and modifications were made to this form as well including:

a.   Revision of the “Extermination Costs” section

b.  Addition of a “Non-Waiver” section

c.  Addition of a “Criminal Activity Prohibited” section

d.  The “Notice to Vacate” section was modified to clarify the law better regarding terminating a lease for term.  The 30 day notice required to terminate a month to month tenancy was changed to 28 days to coincide with Wisconsin statutes.

e.  The “Abandoned Property” section was modified to comply with the law changes in Act 76

f.  Additional language was added to clarify that operating a business or providing child care services are not allowed in the rental unit.

g.  Additional language was added in the section entitled “Security Deposit” to state that if the repair costs for tenant damages are not known in time for the sending of the security deposit transmittal letter that a ”good faith” estimate may be used.

f.  Clarifying language was added to the “Breach and Termination” section.

 

2.   Residential Lease Renewal or Notice To Vacate (#970) — Was updated to comply with Act 76′s changes regarding abandoned property.

 

3.  Notice of Rent Increase (for Month to Month Tenant) (#332) – Was updated to comply with Act 76′s changes regarding abandoned property.

 

4.  Check-In / Check-Out Sheet (#997 and #993) — Was updated to to comply with Act 76 with regards to the title and the “When To Use” explanation as well as some stylistic changes.

 

5.  Rental Application (#996) – Eliminated some sections that were not needed and could possibly cause problems for landlords, added some additional instructions for applicant, restructured the layout of the form, and reworded much of the language at the bottom of the signature page.

 

6.  Nonstandard Rental Provisions (#984) — Rewrote the “When To Use” section to better explain the purpose of a NSRP document, removed the “Miscellaneous Matters” section of the form, revised the statutory references, and fixed some grammatical issue.

 

I can’t stress enough how important it is to use updated/revised forms when they become available.  I still see landlords using the Residential Rental Agreement that was drafted over 10 years ago.  There are important reasons that rental documents are updated: (1)  To comply with law changes, (2) To eliminate problem language that has caused landlords problems.  Each new version of these forms are supposed to make your life easier.  Using old forms is just an invitation for problems.  Effective, March 1, 2014, failing to use the revised Residential Rental Agreement may result in your Agreement being declared void and unenforceable.

T

 

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AASEW Meeting: Come Learn About The New Landlord-Tenant Law (Act 76) on Feb. 17th

As many of you know I have been blogging over the past month or so about aspects of the new Landlord-Tenant law that goes into effect on March 1, 2014.  Well, I will continue to blog about the new law in the future, but if you would prefer to learn all about Act 76 in its entirety you should plan on coming to the next AASEW monthly meeting on Monday, February 17, 2014 at 7 pm at the Best Western in Brookfield.

Atty. Heiner Giese and myself, both of whom were actively involved in the drafting of this new law, will be presenting the new law in its entirely at this meeting.  I will be handling out my outline/summary of the new law as well and Heiner will be handing out copies of the new language that MUST be included in all residential real rental agreements as of March 1, 2014.

In my opinion, this will be the single most important AASEW meeting of the year.  So you will not want to miss it.

Attendence at the meeting is free for current AASEW members or $25 per person for non-members (if you join the AASEW at the meeting the $25 fee will be credited to your membership).  If you would like to join the AASEW ahead of time so that you can more quickly find a seat for the meeting you should call Betzi at 414-276-7378 prior to the meeting.

I look forward to seeing everyone there.

T

 

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Act 76 – Wisconsin’s New Landlord-Tenant Law – Part 4: Who May File An Eviction and Who May Appear In Court

Act 76 which will become effective on March 1, 2014 has changed Wisconsin law with regard to who may file an eviction action and who can appear in court to prosecute an eviction.

Current law only allows the person or entity “entitled to the possession of the property” to file an eviction action.  Typically this would be the owner of the rental property.  As such, a management company or another third party cannot currently be named as the plaintiff in an eviction action — only the owner can.

In the past, the Milwaukee County Court Commissioners where monitoring this issue closely, even going so far as to look up the tax bill for the rental property online while the case was in court to insure that the named plaintiff in the eviction lawsuit was the owner named on the tax bill.  If they were not, the case would either be dismissed or adjourned to allow the owner to be substituted as the plaintiff and appear in court.

Act 76 will amend sec. 799.40(1), Wis. Stats., and as of March 1, 2014, an eviction lawsuit may be filed by either:

1.  The person entitled to possession of the property (i.e. owner),  OR

2.  An agent of the person entitiled to possession of the property as long as they are authorized to do so in writing.

So in the very near future, it will be legal for a property management company to file an eviction lawsuit on behalf of one of their clients (the owner) as long as the owner has authorized the property management company to do so in their management contract or a separate writing.

Similarily, Act 76 will also change who may appear in court to represent the named party in an eviction action.

Current law allows a person entitled to possession of the property (which can be a person, business entity, trust etc.) to appear by the person himself or herself, an attorney,  or a full-time employee.  As a result, landlords that had transferred their rental properties into a LLC (limited liability company) for liability protection were required to appear in court by an attorney unless they could prove that they were a full-time employee of the LLC (which was typically not the case).

So under current law, if an LLC was the owner of the rental property — and thus was required to be the named plaintiff — it could only appear in court through a lawyer.  A member of the LLC, even if it were a single member LLC, could not appear in court to represent the LLC.  To those of you who understand the basics of what is referred to as the  ”corporate fiction” of a business entity and understand that a business entity (even a sole member LLC) is distinct and separate from the individual person, this made sense.  Nonetheless, from a practical perspective it was frustrating to many smaller landlords that had opted to move their rental real estate into a LLC that they could no longer appear in court to prosecute an eviction.

Act 76 has eliminated the requirement that the person be a full-time employee of the business entity in order to appear in court on its behalf.

As of March 1, 2014, it will be acceptable for a party in any small claims lawsuit to appear in court by himself/herself, by an attorney, by a member (as defined in sec. 183.0102(15), Wis. Stats.), by an agent, by an authorized employee of the person, or by an agent of the member or an authorized employee of the agent.

So pretty much anyone can now appear in court to represent an owner or management company on an eviction as of March 1, 2014.

It is important to remember that this law change applies to all small claims actions, not just evictions.  So this change will affect small claims collections lawsuits, replevins etc.  Additionally, the new law applies to ALL parties – not just landlords.  So a tenant will now also be able to appear in court by an agent or authorized employee.

While I am no Nostradamus, I think it is fair to say that this particular change in the law will result in bit of confusion and congestion in eviction court.  It may also result in some eviction cases being dismissed if the landlord does not have a firm grasp of landlord-tenant law and small claims procedure.   For those of you that are interested in appearing in court yourself, I would reccomend that you educate yourself accordingly.  Attending the AASEW’s Landlord Boot Camp on March 8, 2014, to insure that you know what you are doing would not be a bad idea.

And for those of you that have better things to do than waste an afternoon sitting in eviction court, you still will have the ability to hire an attorney to represet you ; )

 

 

 

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JUST ANNOUNCED: AASEW’s Next Landlord Boot Camp – Saturday, March 8, 2014

Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands.

The Apartment Association of Southeastern Wisconsin’s 9th “Landlord Boot Camp” can help you navigate these treacherous waters and learn how to run your properties with greater profit and less hassles.

Who:           Taught by Attorney Tristan Pettit, who drafts the landlord tenant forms for Wisconsin Legal Blank

When:        March 8th, 2014 Saturday 8:30 AM – 5:30 PM Registration opens at 7:00 AM

Where:      Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included: 100 plus page manual to help you put what you learn into practice.

Price:       Members           $159.        Non-Members   $249

Specials: Not a member?  Pay just $1 more than the non member price and receive both the Boot Camp and an AASEW membership for the remainer of 2014 including member discounts at Home Depot, Sherwin Williams and more.

Dog Tags Boot camp                            Dog Tags Boot camp                                 Dog Tags Boot camp                                       Dog Tags Boot camp

Wisconsin landlord-tenant laws are constantly changing.  To help keep you up to date we offer prior attendees a $50 discount.

What you will learn at the Apartment Association’s 2014 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, as amended in March 2012 by Act 143 and again in March 2013 with the passage of Act 76, including:

  1. How to properly screen prospective tenants.
  2. How to draft written screening criteria to assist you in the selection process.
  3. How to comply with both federal and state Fair Housing laws including how to comply with “reasonable modifications”  and “reasonable accommodations” requests.
  4. How to legally reject an applicant.
  5. What rental documents you should be using and why.
  6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
  7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
  8. When you are legally allowed to enter your tenant’s apartment.
  9. How to properly draft an eviction summons and complaint.
  10. What to do to keep the commissioner from dismissing your eviction suit.
  11. What you can legally deduct from a security deposit.
  12. How to properly draft a security deposit transmittal (“21 Day”) letter
  13. How to handle pet damage.
  14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
  15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).
  16. An ample question and answer period.  This alone is worth the admission. . . .  and much more.

You get all this for less than you would pay for an hour of an attorney’s time.

Last year’s AASEW Landlord Boot Camp was filled to capacity.  So call early to reserve your spot.

The easiest way to register is to do so online at www.LandlordBootCamp2014.com or you can call the Association at (414) 276-7378 or email them membership@apartmentassoc.org today to reserve your spot.

Hope to see many of you there.

T

 

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