We will soon have a published Wisconsin Court of Appeals decision on the issue of emergency assistance stays in eviction actions that will assist us as landlords in removing the non-paying tenant.
Sec. 799.40(4) of the Wisconsin Statutes states that a court must stay an eviction action brought against a tenant that has applied for emergency assistance. The stay remains in effect until it is determined if the tenant is eligible for the assistance, and if they are, until that assistance is received. For any of you that have been in this situation you are well aware that this stay can work a substantial hardship on the landlord who is now required to allow a tenant to remain in his/her property for free. Even if the tenant is eventually awarded the emergency assistance it typically does not cover the full amount of the past due rent owed and as such the landlord declines the money and asks for his/her writ. The tenant then uses the assistance money for the security deposit on their next apartment.
This stay can delay an eviction for months. Such a situation is frustrating at best and an improper “taking” of a landlord’s property at worse. In the case of McQuestion v. Crawford (Appeal No. 2008AP1096) from District I (Milwaukee) of the Wisconsin Court of Appeals, it was held that “implicit in the statute’s mandate that a stay is required until the tenant receives the emergency assistance is a requirement that the tenant seek and find suitable permanent housing within a reasonable period of time.”
What is a “reasonable” amount of time will still need to be determined on a case by case basis by a judge but at least there will now be some required inquiry into the efforts made by the tenant to locate new housing and consideration made for the amount of time that this takes. Wisconsin landlords now have case law to support our arguments that the length of the stay is no longer reasonable.
#1 by Michelle on September 15th, 2009
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My landlord is not only refusing to accept my rent payment, but is refusing to accept emergency assitance is this legal. What can I do?
#2 by Tristan R. Pettit, Esq. on September 17th, 2009
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Michelle — Depending on your specific fact situation, your landlord may be perfectly within his rights to not accept your rent. Additionally, landlords have the option of (1) accepting the Emergency Assistance payment and keeping you as a tenant or (2) rejecting the payment and proceeding with the eviction.
#3 by Debbie on December 29th, 2009
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Tristan: I served a 5 day notice to pay or vacate to my tenant on 12/15 (rent was due on 12/6 – he has a 5 day grace period) and he provided us with a form to sign dated 12/17 from MAXIMUS to stop eviction proceedings. We signed the form. The tenant told my husband we’d receive the check, in our name, within 5 days. It is now 12/28 and no check. Gut feeling tells us this tenant is not going to show stability in paying the rent and we likely will proceed with eviction. If we were to receive the emergency payment yet in December, can we serve the 14 day notice on January 6 if rent is not paid by the 5th or should we start again with the 5 day notice. In other words, if we accept the payment for December, do we then start from square one? Thanks for any help.
#4 by Tristan R. Pettit, Esq. on December 29th, 2009
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Debbie – Thanks for your comment. Please understand that I cannot give out legal advice through this blog — which means I cannot advise you want to do under your specific fact scenario. I can however tell you a little bit about the law surrounding your issues.
When you indicate a payment from Maximus you are referring to an Emergency Assistance payment that a tenant that has children can apply for when they face impending homelessness (usually after they have been served a notice for failing to pay rent). The law in Wisconsin is clear that if a tenant has applied for Emergency Assistance (EA) then they cannot be evicted until they have been approved or declined the EA and until they receive the EA monies. This delay must be reasonable (as determined by the eviction judge).
A landlord can opt to refuse the EA payment and often this is what Landlord’s choose to do becasue the EA payment is a nominal amount that usually does not cover the amount of rent owed. Also by accepting the EA finds you must agree not to continue to evict the tenant.
By siging the Maximus form (at least the forms that I have seen) you have agreed not to evict the tenant and in return Maximus will give you the tenant;s EA money.
You are dealing with a bureacracy (Maximus) so the EA payments are not always receieved when promised.
You have gotten yourself into a tricky situation. I would suggest you contact an attorny to help you sort through your specific facts and determine the best course of action. S/he will need to review the pertinent timeline of events, the notices tha tyou have served and the Maximus papers in order to properly advise you.
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