Finally, Some Legislation That Actually Assists Landlords – Senate Bill 607

Mar 11

Posted by Tristan R. Pettit, Esq. in Evictions, Legislation, Notices of Breach | 2 Comments

Senators Plale, Hansen, and Lasee introduced Senante Bill (SB) 607 yesterday.  What a breath of fresh air it is to read this bill.  Rather then making landlords jump through more and more hoops to protect our tenants and rental property, this bill actually assists us in doing our jobs.  I am so used to blogging about proposed legislation that hurts (or at the very least hinders) landlords that this is a nice change.

If passed, this bill will allow a landlord to terminate a tenant’s tenancy, regardless if they are a month-to-month tenant, tenant under a lease for 1 year or less, or a tenant with a lease for more than 1 year, if the tenant or the tenant’s guest, commits certain crimes, in property or near the property.

Currently if you have a tenant under a lease for one year or less or more than one year (as opposed to a periodic tenancy like a month-to-month) and if that tenant commits a crime you are legally prevented for terminating that tenant’s tenancy and evicting them.  The current law states that if a tenant under a lease commits a breach (including criminal activity) that they landlord MUST serve them with a 5 day notice that allows the tenant the opportunity to cure the breach. 

Currently the only two exceptions to the above, are the very limited situations in which the tenant has created a gang or drug nuisance at the property AND the landlord has received a written notice of drug or gang nuisance from a law enforecement agency.  Only in these two limited circumstances can a landlord serve a 5 day notice on the tenant that does not afford the tenant the right to cure the breach.

To better illustrate the current status of the law, here is an example: 

Tenant A gets drunk and runs around the apartment complex brandishing a gun and threatening to shoot anyone that he passes.  Assuming that Tenant A is not arrested and hauled off to jail,  Tenant A’s landlord is not legally allowed to terminate Tenant A’s tenancy and file an eviction action as a result of this criminal behavior if Tenant A is under a lease for one year or less or a lease for more than one year.  The only legal recourse that the landlord has is to serve Tenant A with a 5 day notice which affords Tenant A with the opportunity to cure the breach (the criminal activity) or vacate.  How does Tenant A cure the breach?  By not running around the apartment complex within the next 5 days brandishing a gun and threatening to shoot people.  Ridiculous I know, but that is all Tenant A must do to cure his breach and if he does that, the landlord is legally required to keep him as a tenant as long as the tenant is under a lease. Read the rest of this entry »

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I Discovered A Really Informative Blog Devoted To Fair Housing Issues

Mar 10

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination | 2 Comments

This past weekend I was trying to think of some ways to add some variety and fun to Tristan’s Landlord-Tenant Law Blog.  While I feel that my blog is informative and helpful I wish that I could make it more fun.  Toward that end I decided that I would spend some time trying some new types of blog posts in the future — a list post (i.e. Top Ten Reasons To Not Allow Cats in Your Rental Unit, Top Ten Excuses for Paying Rent Late), a video post, a book review post. 

Those of you that are regular readers of my blog or those of you that have met me personally may know that I really enjoy learning knew things relating to Landlord-Tenant law.  Because of this, I was really excited this past weekend to discover a blog devoted totally to discrimination/Fair Housing issues. 

The Fair Housing Blog is published by Attorney Ron Leshnower.  He started his blog in 2008 to coincide with the 40th anniversary of the Fair Housing Act.  The purpose of his blog, according to his bio, is to explore housing discrimination issues that are important and interesting but do not always get much press.

This blog covers all issues that could possible arise in the Fair Housing context.  He talks about all of the protected classes, reasonable modifications and reasonable accomodations for individuals with disabilities, testing, voice profiling, steering, and many more issues.  What I like most about this blog is that the author provides links to the actual legal documents that the federal or state government filed against the landlord,  property manager, or owner who allegedly violated the law.  This allows you to read the actual factual allegations.  While many of these lawsuits are resolved without a need for a hearing and therefore there is no written decision necessary,  it is still very enlightening to read about what specific situations are egregious enough to cause the government file a lawsuit. 

What better way to learn then from other’s mistakes.  Some of the author’s blog posts include links to fair housing studies performed by various municipalities as well as media reports. 

If you are interested in Fair Housing issues as I am or just want to learn what type of actions can land you in trouble I would encourage you to spend some time at the Fair Housing Blog.

I have previously posted a three-part series about Fair Housing law that will give you some useful basic information to better understand the Fair Housing Blog.  You can read those posts here, here and here.

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SECURITY DEPOSIT TRANSMITTAL LETTERS: How To Draft A Legal 21-Day Letter

Mar 4

Posted by Tristan R. Pettit, Esq. in ATCP 134, Security Deposit | 3 Comments

Security deposit withholding issues are the second most litigated area in landlord tenant law after evictions.  If a landlord makes improper deduction from a tenant’s security deposit, pursuant to ATCP 134 and §100.20, Wis. Stats., the tenant may sue the landlord for double damages and attorney’s fees.  There are numerous published Court of Appeals decisions in Wisconsin dealing with this exact issue.  I would like to offer a few suggestions to landlords which will hopefully keep you from making any improper security deposit deductions.

 

First, we need to address some basics . . .

A security deposit is defined as “any payment that is given to a landlord as security for the performance of the tenants obligations under the rental agreement.” ATCP 134.01(11).

ATCP 134.06(2), states that “within 21 days after a tenant surrenders the rental property, the landlord shall deliver or mail to the tenant the full amount of any security deposit held by the landlord, less any amounts properly withheld by the landlord.”

If you would like to know what a landlord may legally deduct from a tenant’s security deposit you will want to read my Jan. 17th post.

ATCP 134.06(4), states “If any portion of a security deposit is withheld by the landlord, the landlord shall, within the time period and manner prescribed in sub.(2) – 21 days — deliver or mail to the tenant a written statement accounting for all amounts withheld.  The statement shall describe each item of physical damages or other claim made against the security deposit, and the amount withheld as reasonable compensation for each item or claim.”

I will refer to this written statement interchangeably as either the “security deposit transmittal letter” or the “21-day letter.”

According to ATCP 134 all prepaid rent in excess of one month is legally considered to be a security deposit.  So if you require a new tenant to pay first and last months rent plus a security deposit, legally the security deposit will also include the last month’s rent

Essentially a landlord must either return a tenant’s security deposit or send the tenant an itemization of how the tenant’s security deposit was applied within 21 days after the tenant surrenders the premises.  This is mandatory.  No matter what the situation – even if you are legally entitled to keep all of the tenant’s security deposit – you must still send the tenant a letter explaining to them why you can legally keep it and how it was applied.  There is no situation in which you should not be sending the 21-day letter to a vacating residential tenant in Wisconsin.  Even if common sense tells you it is not necessary (i.e. the tenant told me to use his/her security deposit to pay for the last month’s rent) you should still send out the letter.  If you are wrong the ramification may be expensive.  Be safe – send the letter each and every time. Read the rest of this entry »

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Wisconsin’s New Lead-Safe Renovation Rule is Upon Us – April 22, 2010 – Get Trained

Mar 1

Posted by Tristan R. Pettit, Esq. in Uncategorized | 4 Comments

From a March 1, 2010 post by Tim Ballering on the AASEW Advisors listserv:

Beginning April 22nd you will be required to be trained and have WI
DHFS or EPA certification even to work on your own pre 1978 rental
housing.

Yes the rule will be very expensive to comply with (See the articles
below). Yes it is another — to put it in terms the government uses –
unfunded mandate.  But it is now the law and it will eventually be
painfully expensive not to comply. (Big fines, lawsuits etc.)

The good news, if there is such a thing in this context, is the AASEW has a
tentative agreement with another state certified trainer to provide
this training for less than $200 per person.

We need a head count of how many owners and their crew members would
be interested in taking advantage of this.  That number will set the
final pricing.  If we hustle the training would be prior to 4/22/10 so
that no one is out of compliance.

This rule will affect you if you replace windows, disturb 6 square feet of paint on the interior or 20 square feet of paint on the exterior of any pre-1978 rental housing.  Essentailly this will affect all of us that own rentals.

If you would be interested in attendng — please post a comment below along with the number of people you would be sending and I will pass the info on to Tim.

Thanks

T

————-Recent News on EPA Rules —————–

http://bit.ly/bWjTs8

“The price for homeowners could be hiked by $500 to $1,000 per room,
McComas said.”

———-

http://bit.ly/9mHQMN

“It’s going to price a lot of these jobs right out of the market,” he
said.”I think it’s going to put me out of business.”

———–

http://bit.ly/bTXEoh

The new federal lead safety rules that take effect this spring are
coming just as work gears up on federal stimulus projects that may be
affected by the new regulations.

———–

http://bit.ly/a9uZnL

“You’re talking about at least a few thousand dollars extra,” said
DiBernardo. Gehrig estimated the extra labor might add 25 percent to
a siding job.

———–

http://bit.ly/b8hnjr

New regulations aimed at protecting homeowners from lead based paint
could make your renovation costs skyrocket.

Landlords Will Be Required To Install Carbon Monoxide Detectors In Single Family and Duplex Rentals

Feb 23

Posted by Tristan R. Pettit, Esq. in Legislation | No Comments

A new bill was recently passed by the Wisconsin Senate that will require landlords that rent out single-family homes and duplexes to install carbon monoxide detectors on all floors of these dwellings by Febraury 1, 2011.

Senate Bill 415 was passed 69-27 via voice vote after the Assembly previously passed the bill by a 2/3’s margin.  You can read the entire history of the bill here.  It is anticipated that the Governor will sign the bill.

SB 415 requires the owner of most buildings that contain one or two dwelling units to install a carbon monoxide detector in the basement and on each floor of the dwelling unit except for the attic.

Additionally, the bill requires that if the tenant notifies the owner in writing that a detector is not working properly, that the owner must perform the necessary maintenance to repair the detector or replace it within 5 days after receipt of the notice by the tenant.

The bill also exempts an owner for any liability for any false alarms or from the failure of the detector to work properly if its failure was due to tampering, as long as the owner reasonably maintained the detector.

Existing 1 and 2 unit dwellings will be allowed to use battery operated carbon monoxide detectors.

A carbon monoxide detector is not required to be installed if the unit does not have an attached garage, has no fireplace, and has no fuel-burning appliances.

Finally, the bill authorizes a building inspector to inspect new dwellings, and if requested to do so by the owner or tenant, to inspect the interior of an existing rental unit to ensure that the owner has complied with the requirements set forth in this bill.

This new law will become effective as of February 1, 2011 and will be contained in Section 101.647 of the Wisconsin Statutes.

Please remember that the carbon monoxide law that affects rentals that include 3 units or greater goes into effect April 1, 2010.  This law can be found in Sec. 101.149, of the Wisconsin Statutes.  ADDED 3/1/10:  These regulations were issued as emergency rules by the Department of Commerce, Safety and Building Division, as required 2007 Wisconsin Act 205 (in April 2008).  The Wisconsin Department of Commerce’s brochure on this law is very informative.

———————————–

Thanks to Atty. Heiner Giese for forwarding this information to me.

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Is This The End of Seller Financing For Rental Properties?

Feb 16

Posted by Tristan R. Pettit, Esq. in Uncategorized | No Comments

I have received this same information from my contacts at the Apartment Association of Southeastern Wisconsin, Inc. (AASEW) and Milwaukee Real Estate Investors Networking Group (RING).  If you would ever like to be able to obtain seller financing for your next rental property or if you would like to be the seller that finances the sale of your rental property to some young landlord in the future then you must act now.

TODAY – Feb. 16th – IS THE LAST DAY TO SEND COMMENTS! 

DEADLINE FOR COMMENTS HAS BEEN EXTENDED TO MARCH 5th

___________________________________________________

I received this Info from 4 different REIA’s – Deadline 2/16 to respond  DEADLINE FOR COMMENTS HAS BEEN EXTENDED TO MARCH 5th

HUD Issues Problematic Rules Interpreting SAFE Mortgage Licensing ACT

HUD has proposed to eliminate ALL seller financing unless the seller lives in the home or becomes a licensed mortgage originator. 

The proposed HUD Rules interpreting the federal SAFE mortgage act can be viewed at www.regulations.gov. 

Use the search parameter “HUD” and the keyword “safe”. 

Please review and comment regarding the impact of this broad interpretation of the law.   “In addition to establishing HUD’s responsibilities under the SAFE Act, through this rule, HUD proposes to clarify or interpret certain statutory provisions that pertain to the scope of the SAFE Act licensing requirements, and other requirements that pertain to the implementation, oversight, and enforcement responsibilities of the States. HUD solicits comment on the proposed clarifications and on the regulations proposed to be codified.”
History: 
As you may recall, we lobbied hard last year to maintain the right for individuals to make up to five seller financed transactions per year before being subject to mortgage originator licensing, etc… However, that law was passed subject to the Department of Housing and Urban Development’s (HUD) approval of the law as “compliant” with the intention of the federal law.  If any state does not have a compliant law, the SAFE act allows HUD to implement licensing for the state.  HUD has since issued proposed rules. 

In a nutshell, seller financing would no longer be allowed for non-owner occupied homes.

How YOU can help: 
We learned about the publishing of the rules very late in the process… and the deadline for comment is upon us on February 16.  However, we desperately need for thousands of REIA members across the country to go on record with HUD on this issue.  We will be working to try to affect this law in other legislative ways, but cannot hope to gain traction unless our members have clearly communicated that they are opposed to this portion of the rules.  This is your chance to be counted on this issue. 

PLEASE SUBMIT YOUR COMMENTS TO HUD!  We have less than one week to flood this system with comments. 

Follow these simple steps:
1.  Logon to www.regulations.gov. You will see two white boxes for searching 
2.  On the left box labeled “Document Type”, pull the menu down and select “proposed rules” 
3.  On the right box labeled “Enter keyword or ID”, enter “safe mortgage”. Then, press search 
4.  Locate the blue search result “FR-5271-P-01 Safe Mortgage Licensing Act: HUD Responsibilities Under ….” To read the rules, click on this title. You will be taken to another page. You will see “views”. You can click on PDF file or another symbol which will show you the rule document online. 
5.  On the right of the screen, click on “submit comment” 
6.  Complete the form providing required information and your comments and then submit

What do you say? 
Say what you feel, but say it politely! The message should include that you would like the definitions in the proposed rules to be changed so that private individuals can originate and service loans on properties they personally own.

Some ideas from others:
• Bank loans are not available on some types of properties 
• The tight lending climate has made bank financing “out of reach” for many 
• Seller financing is an “age old” tradition based on private property rights 
• These rules would prohibit even partial seller financing – i.e. a “seller second” 
• According to HUD’s “Residential Finance Survey” in 2001, roughly 40% of all non-farm residential properties in the US are owned free and clear 
• An estimated 6 million Americans own a property other than their own primary residence 
• An estimated 4.5% of Americans own three or more properties, many purchased solely as investment properties 
• 40% of non-owner occupied residences are mobile homes which are more difficult to sell with bank financing 
• Approximately 5% of homes in US are for sale or for lease… seller financing may be key to liquidating this inventory 

Post comments to: http://bit.ly/b0NyKx

DEADLINE FOR COMMENTS HAS BEEN EXTENDED TO MARCH 5th

Compliments of BILL Kiefer 
ACT TODAY !!!!!!!!!!!!!!!!!

LANDLORD BOOT CAMP: Only 4 Open Seats Remain

Feb 16

Posted by Tristan R. Pettit, Esq. in AASEW, Seminars | No Comments

UPDATE 2/17/10 – WE ARE AT FULL CAPACITY FOR LANDLORD BOOT CAMP ON 2/27/10.  If you are interested in attending please contact Paulette at (414) 276-7378 or paulette@apartmentassoc.org and she will put your name on a “waiting list” and contact you should a seat become available.
 
Thank You
 
T
 
________________________________________________________
 
We had a great AASEW monthly membership meeting last night — close to 90 people.  That was the largest crowd that I have seen at a meeting in my many years as a member.  Many of the attendees at the meeting also signed up for the AASEW’s Landlord Bootcamp that I will be teaching in about 10 days.  If you are interested in attending I would encourage you to do so immediately as I am told that there are only 4 seats left.  Looks like we will have a full house!
 
Below is my earlier blog post about the Boot Camp and the topics that I will address on Feb. 27th:
 
 
I will be presenting an all-day seminar on residential landlord tenant law in Wisconsin for the Apartment Association of Southeastern Wisconsin, Inc. (AASEW).  The seminar is entitled “Landlord Boot Camp” and will take place on Saturday, February 27, 2010 from approx. 8:30 am – 5 pm at the Clarion Hotel located at 5311 S. Howell Avenue in Milwaukee.
 
The cost will be $159 for AASEW members and $259 for non-members.  You will receive a 100 page plus manual.  I have given a similar seminar to lawyers, landlords, and property managers over 25 times during the past few years and the organizations that have sponsored these seminars typically charge between $300-$400.  This is your opportunity to learn all of the same information at a much discounted price.
 
I will cover pretty much anything and everything that you need to know about residential Landlord Tenant law in Wisconsin, 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 accomodations” 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)
 
. . .  and much more.
 
Hope to see you there. 
 
Call Paulette at (414) 276-7378 or email her at paulette@apartmentassoc.org to reserve your seat.

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