If you are a landlord are you familiar with ATCP 134? If not, you definitely need to be. ATCP 134 is a chapter of the Wisconsin Administrative Code that applies to residential rental practices. While these rules were updated in 1998 many well-intentioned landlords are still unfamiliar with their provisions and the rather extreme consequences that may result if you fail to abide by them.
The most overlooked – and the most litigated – rule is ATCP 134.06 (2) which pertains to the return of a tenant’s security deposit. This rule states that a landlord shall return a tenant’s security deposit to that tenant within 21 days after the tenant surrenders the premises to the landlord. This applies whenever the tenant leaves your unit whether that be at the end of the rental period or as the result of being evicted.
If the tenant has damaged the premises or owes back rent such amounts can be deducted from the tenant’s security deposit however the 21-day letter must still be sent to the tenant showing the itemized deductions that were taken form their security deposit. The security deposit and/or 21-day letter must be sent to the tenant’s forwarding address or if that was not provided then to the tenants last known address.
The consequences to the landlord who fails to follow the above rules are severe. Together, ATCP 134 and the Wisconsin Statutes, allow a tenant to sue a landlord who fails to return the security deposit or mail the 21-day letter to the tenant within the 21 day time period, for double the amount of the security deposit, together with the costs of the lawsuit and the tenant’s reasonable attorney’s fees. Yes, that is correct, that same tenant that you were forced to evict for failing to pay their rent or for disturbing their neighbors by playing their music too loud, can now come back and sue his/her landlord. Adding insult to injury, besides receiving a damages judgment against you, the landlord, you will also be stuck having to pay the fees of the lawyer who was hired by your ex-tenant to sue you.
If you are a landlord and are unaware of the above residential practice rule or are unfamiliar with ATCP 134 in general, I urge you to become knowledgable before you become mired in such a situation.
#1 by Admin on June 30th, 2009
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written by Analisa Ruplinger, June 29, 2009
I have some questions about ATCP 134 and would appreciate your feedback if you have the time.
I was a tenant of a townhouse in Schofield, WI and the landlord of the property lives in Janesville. I lost my job in January, and was unable to make my rent, and starting in November of the previous year I was on a verbal lease. We moved out at the end of March still owing $400 in rent and a supposed $20 late fee. My security deposit that I made at the beginning of the rental agreement was $600, so I was hoping he’d just keep my security deposit and that’d be the end of it. However; he sent me a “move out report” (that I didn’t sign that was also dated wrong) with an additional $746 in charges. $325 in paint, $30 privacy spray paint on bathroom window, $10 “gash in wall” from moving our bed upstairs – less than an inch in diameter, $40 because I had to remove the stair heads to get my bed upstairs (not noting that they’d been put back down), $32 for 32 nail holes, $9 for 9 burned out light bulbs, $10 for a 2″ rip in the front door screen, $75 for “not working” smoke detectors that were working when we left, $210 for 7 hours of cleaning labor! and just for insult $50 for the property managers time and money… I have pictures from when we moved out, things weren’t that bad! … I just feel like I’m being taken advantage of
#2 by Tristan on July 2nd, 2009
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Analisa – Please understand that I cannot give out legal advice on this blog. Many of your questions are very specific to your exact fact situation and thus could easily be considered legal advice. I would suggest that you retain a lawyer to assist you with your specific questions.
That being said, I can give you some general information that may guide you. First, (as an aside as I realize you didn’t ask for an answer on this issue) you are not allowed to use your security deposit to pay your last month’s rent. Most good rental agreements prohibit this.
Move-out reports do not need to be signed by the tenant to be valid. They will hold greater weight as evidence in court if they are signed by the tenant becasue then the tenant is agreeing to the damages listed in the report. But whether or not you signed the move out report does not affect whether or not the damages are correct or not. I have had many a tenant disappear in the middle of the night or just leave the keys and leave. The fact that they didn’t stick around to do a walk through with me does not mean that I am precluded from charging them for damages to the unit.
If the landlord has a move in report that indicates every thing is clean and damage free when a tenant moved in and then the move out report indicates that there are damages to the unit, then the landlord is on pretty solid ground. The landlord will be in even a better position if s/he has photos of the unit before the tenant moved in and after the tenant vacated that show the damage.
What landlords need to be careful about however is charging tenants for what is considered “normal wear and tear.” Normal wear and tear has not been defined in any Wisconsin case or statute so it is decided on a case by case basis by the judge or court commisioner. The long and short of it is that landlords cannot charge tenants for normal wear and tear to the unit but they can charge for damage to the unit. Gashes in wallsl, torn screens, broken windows and blinds, are usually considered to be damage — not normal wear and tear.
Charges for the repainting of a unit are less clear. If the paint is to cover up damages (crayon marks, graffitti etc) then a landlord is entitled to charge a tenant for it (or deduct it from their security deposit) as long as it is set forth in the Nonstandard Rental Provisions. If a tenant lived in the unit for many years and the reason for painting is to make the unit look fresh for the next tenant and/or to cover up fingerprint smudges etc. then chances are that that will be considered normal wear and tear.
Issues like replacement of burnt out bulbs and nail holes typically are addressed in the rental agreement, rules or regulations, and/or nonstandard rental provisions. If those charges were disclosed to a tenant and the tenant signed the document with those disclosures then they may have a difficult time arguing that their landlord can’t charge for them.
Remember that under ATCP 134 if a landlord improperly deducts from a tenant’s security deposit (as determined by a judge or ct. comm) the tenant is entitled to double damages (the landlord would have to pay the tenant double the amount of the improper deduction) and the tenant’s atty. fees.
If you believe that you have been improperly charged or had improper amounts taken from your security deposit then you should retain the services of an attorney to assist you.
#3 by John on October 29th, 2009
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Renting a house with a 2 year lease. The owners just notified us that they will be moving back into the house when our lease expires. They are not allowing us to move out early without penalty. We will have limited time to look for a new place because of this. Is there any legal recourse?
#4 by Tristan R. Pettit, Esq. on October 30th, 2009
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John – Thank you for your question. Please understand that I am unable to give legal advice through this blog. I would reccomend that you contact a lawyer that specializes in landlord-tenant law in your area.
Having said that I am able to advise you about the law in general. If a tenant is living in Wisconsin (which is where I am located) and the tenant signed a 2 year lease then that tenant is responsible for rent and all other requirements under the lease for that entire 2 year period.
If a tenant chooses to “break” his/her lease by moving out early, the tenant will still be responsible for paying rent subject to the landlord’s duty to mitigate the tenant’s damages. A landlord would mitigate a tenant’s damages by making “reasonable efforts” to re-rent the unit for the tenant.
The tenant will be responsible for reimbursing his/her landlord for the re-rental costs (i.e. running ads etc).
If the landlord is able to re-rent the unit then a tenant would only be responsible for rent up until the date that the new tenant starts paying rent (assuming that the new rental amount is equal to or greater than the prior tenant;s rent). If the landlord makes “reasonable efforts” to re-rent the unit for the tenant but is unable to find a new renter then the old tenant will still be responsible to pay the rent until the end of the lease.
Hope that helps.
#5 by John on November 2nd, 2009
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Hello again. Our landlords informed us they are moving back in August of 2010. Our lease runs through September 2010. Does the fact they intend to move in before the end of our lease break the lease? If so, when does that “break” occur?
Also, our lease specifies that trash and recycling pick up is paid for by the landlord. We have been paying for this service and have not been reimbursed. Does this in effect break the lease since they are not abiding by the terms of the lease?
Thanks
#6 by Tristan R. Pettit, Esq. on November 3rd, 2009
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John – I am not able to give you specific legal advise via this blog. Any such advice would depend on what city, county and state you live in and what the laws are there. I would reccomend that you retain a lawyer in your locale to specifically answer thses questions for you.
Having said that, I can provide you with the general law. For example, typically if you have a lease for a specific term then that lease is in effect until the term ends unless both parties agree to change it. So a landlord cannot just tell you to move out early unless both parties agree to move out early or you have breached the lease and the landlord terminates your tenancy and evicts you.
If your lease says that the landlord is to pay certain fees and for whatever reason you have been paying those fees my first question would be why? Why would you pay fees that you are not responsible for under the lease? Typically this would not result in the lease being void but it may entitle you to get repaid for the fees you paid.
#7 by John on November 11th, 2009
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I have a tenant who is moving out before the lease ends. I plan on moving back into the house, but not until the lease was to expire in about 8 months. I know I have to “attempt” to rerent the unit. Legally, what does that mean? How hard of an attempt do I have to make? It will be difficult to rent it for 8 months and would just be easier to make the previous tenant pay the rent.
Also, who is respnosible for the utilities when the unit is vacant? The lease says the tenant is respnosible but he has stated he is going to have them taken out of his name when he vacates? What are the options?
Thanks
#8 by Steve Jacobson on November 20th, 2009
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Hello,
Because of a work transfer, I had to break my lease and was told by the landlord that I needed to find a new tenant for the apartment if I did not want to be responsible for the remainder or rent due on the lease. I placed an ad in the paper and received several replies and requests to rent the apartment. I forwarded these to the landlord and was told later that none met the requirements, but would not tell me what the requirements were. None of the applications that she gave me asked for SS #’s so she couldn’t run credit reports. I checked CCAP myself and found nothing on any of the applicants. All had steady employments. What are my options. I feel like I did what was asked of me. When I asked if she(the landlord) had found sombody, she told me she did not need to look because it was my responsibility. She even sent me an e-mail stating the same. What are my options?
Thanks,
Steve
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#9 by Terri Young on December 13th, 2010
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My landlord did not list late fees or utilities other than in the lease. To enforce these, do they need to be in a non standard rental provision? What needs to be listed in a non standard rental part of the lease to be valid in a court of law?
thank you
#10 by Scott T on December 13th, 2010
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how does a court determine what late fees are? are they rent or become part of a security deposit? Is a landlord entitled to these if there is no written lease. It was an oral agreement.
#11 by Tristan R. Pettit, Esq. on December 13th, 2010
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ATCP 134.10(8) Indicates that a landlord cannot charge a tenant a late fee except as specifically provided under the rental agreement. So it can be argued that if you have no written rental agreement then you cannot charge a late fee. Wisconsin however does not require that all rental agreements be in writing. So it could be argued that under a oral rental agreement a landlord should be allowed to charge a late fee if the parties agreed to it orally. The landlord would then need to prove that the tenant agreed to the late fee and that charging a late fee, if there is no written rental agreement, does not violate ATCP134.10(8).
To my knowledge, there is no case law on this issue to guide us.
Milwaukee County treats a failure to pay a late fee as a breach of the rental agreement other than for failure to pay rent — much like having a loud party or engaging in criminal activity — I recently wrote about this issue in my post from last week entitled “Small Claims Bench/Bar Meeting” – so you may want to read that for additional detail.
#12 by Tristan R. Pettit, Esq. on December 13th, 2010
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Terri — A Nonstandard rental provision is considered to be part of a rental agreement. ATCP 134.10(8) states that a landlord can charge a late fee except as specifically provided in a rental agreement. So it could be argued that if late fees are listed in a rental agreement or a NSRP (which is part of a rental agreement) then they can be enforced.
Realize that even if there is no written rental agreement, a landlord and tenant can still have entered into an oral agreement. It is unclear if a landlord can charge a late fee under an oral rental agreement. There is no caselaw on that issue that I am aware of, so until there is, the each court or court commissioenr will determine that on a case by case basis.
T
#13 by Tristan R. Pettit, Esq. on December 13th, 2010
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Additionally, the only reason to place items in a nonstandard rental provision is if you wish to be able to deduct those amounts from a tenants security deposit. So just because a late fee is not included in a NSRP doesn’t mean that the tenant doesn’t owe the late fee – it just means that a landlord may not be able to deduct a late fee from a tenant’s security deposit.
Utilities are different. If a tenant is responsible for utilities then that shoudl be stated in the rental agreement. ATCP 134.06 (3) allow for a landlord to legally deduct unpaid utilities from a tenant’s security deposit even though there is not a NSRP stating that.
#14 by Sara on September 27th, 2011
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I rented an apartment with a roommate. We both signed the lease seperately and each had a parent co-sign because we 20. I moved out of the apartment earlier than the lease, but she remained until the end of July when the lease was up. We made all payments on time. My landlord failed to give me my deposit back and it has been a very long time. I sent him a letter in writing saying I would take the matter to court. I am not in close contact with my old roommate but contacted her, and she recieved both of our deposits. But, the two checks are both written out to her. I would have had to pay a late fee if I paid my rent late. Can I take my landlord to court?
#15 by Tristan R. Pettit, Esq. on September 27th, 2011
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Sara — Thank you for your question unfortunately I cannot give legal advice via this blog. I would suggest that you contact an attorney that represents tenants in your area and provide him/her with all the facts surrounding your situation so that s/he could provide you with an analysis of your situation and advise you accordingly.
T
#16 by bernice on September 28th, 2011
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long story short, our landlord forced us to move out 6 mos b4 our lease was up for no other reasons but personal( he didnt like my husband) so instead of being evicted we agreed to move, now that we vacated his apt he has kept money for door stops and sink strainers and 1/2 the months rent after he told me if i paid just 1/2 month and moved on the 15th that would be fine…well he lied and kept the other 1/2 rent…please help…we were there over a yr and never was late on rent…
#17 by bernice on September 28th, 2011
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is it even legal to force you to move for no good cause…?
#18 by Tristan R. Pettit, Esq. on September 29th, 2011
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Bernice — I cannot give legal advice via this blog. If you feel that your landlord violated some provisions of landlord-tenant law act you should consult with an attorney that represents tenants to explore that more fully.
#19 by Tristan R. Pettit, Esq. on September 29th, 2011
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Bernice — It depends on the circumstances. However, since you opted to move without requiring the landlord to evict you — which probably was a smart thing to do — the issue is moot at this point from a practical standpoint.
#20 by Greg Straub on November 7th, 2011
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Signed a one year lease agreement. The lease agreement called for a 60 day notice to move out and a special clause to not vacate during November, December, January or February. Lease ended, became a month to month lease agreement. Have been there for 3 years. Paying every month on time. Lost my job, took new job and need to move out. Lease is a month to month lease so I provided 45 days notice. Landlord refuses to accept notice, wants to charge me for 4 months rent. Your help is appreciated.
#21 by Tristan R. Pettit, Esq. on November 7th, 2011
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Greg — I cannot give legal advice via this blog. Yes, a landlord can institute a no move out during winter months provision in a month to month tenancy. It creates what is often referred to as a “hybrid” lease. There are requirements that a landlord must meet in order to enforce a hybrid lease however. I would suggest retain a lawyer to review your situation and who can give you legal advice as to your options.