Archive for July, 2009

Update On Who May Represent A LLC in Eviction Court: New Rules To Start September 1st

Jul 30

Posted by Tristan R. Pettit, Esq. in Evictions, LLC's | 2 Comments

Those of you that have been following my blog are aware that Milwaukee County Small Claims Court has indicated that it will not allow non-attorneys to represent LLC’s in court in the near future.

My earlier posts on this topic can be read here and here.

A fellow board member from the AASEW informed me today that one of the owner’s of a property he manages was handed the notice that I reproduced in my earlier post (you can read it here here), as he was leaving small claims court.  The notice indicated that he would no longer be allowed to represent his LLC’s in small claims court as of September 1, 2009.

He indicated to the commisioner that handed him the notice that he was a full-time employee of the LLC and therefore can appear on behalf of the LLC in small claims court as allowed under Sec. 799.06(2) of the Wisconsin Statutes.  The court commissioner’s reply was something to the effect that, ” I see you down here [small claims court] a lot, and you have many LLC’s.  There is no way that you can be a full-time employee of all of them or you would have to work hundreds of hours per week.”

This issue seems to coming to a head very soon.  Unless you are a full-time employee of an LLC, and you have written records to prove this, it looks as if September 1, 2009, will be the deadline by which you will need to have made arrangements to have an attorney represent your LLC’s in Milwaukee County Small Claims Court or risk having your case either adjourned or dismissed.

Tags: , ,

Milwaukee’s Chronic Nuisance Ordinance and It’s Improper Use Against Landlords

Jul 29

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, Evictions, Nuisance Properties | 4 Comments

 
The City of Milwaukee’s Chronic Nuisance Ordinance (80-10) is a thorn in the side of many landlords.  Essentially the ordinance says that if your property generates more than 3 calls for police service for “nuisance activities” within a 30 day period  that the city will charge you  for the costs associated with abating the alleged nuisance. 
 
Nuisance activities include the following: harassment, disorderly conduct, battery, indecent exposure, prostitution, littering, theft, possession, manufacture or delivery of drugs, gambling, illegal possession of firearms, keeping a dangerous animal, trespass to land, conspiracy to commit a crime, discharge of a firearm, excessive noise, loitering, public drinking, sale of liquor, possession of counterfeit items, possession or selling of drug paraphenalia, selling or giving tobacco products to children, misuse of emergency telephone numbers, harboring an animal that causes a disturbance, illegal use or sale of fireworks, and truancy.  In summary, a nuisance activity is pretty much anything and everything you can think of.
 
If your rental property is being used as a drug house or is the headquarters for a gang or if you are allowing tenant to run a house of prostitution out of your apartment complex then I agree that your property is more than likely occupying more than its fair share of the police department’s time and resources and that the property may be a chronic nuisance.  But this is not the only — nor is it the typical — situation in which this ordinance is being used against landlords.
 
Oftentimes landlords are having fines added to their property tax bill or being contacted by the police becasue a tenant called 911 to report a legitimate crime, or because a neighbor (who is mad that they live next to an apartment complex) called the police because s/he doesn’t like it when the tenants stand and talk in front of the building, or my all-time favorite, a person (not a tenant or the owner) walked by the rental property and decided to drop their hamburger wrapper on the lawn.  All of the above instances qualify as nuisance activities under Milwaukee’s ordinance and can result in a property being declared a chronic nuisance.
I have heard from many landlords — both in my capacity as an attorney representing landlords and as the president of the Apartment Association of Southeastern Wisconsin (AASEW) — about circumstances in which they have been contacted by the police as a result of examples similar to those mentioned above.  I recently received an email from a new AASEW member who was very upset at being in such a situation and contacted the AASEW for assistance and guidance.  I have reproduced the member’s email, with his permission, ommitting his name and the property address to protect his identity. 
 
 
I own a 30 unit building at __________________.  Last December there were 2 family arguments in which police were called, and a misdialed 911 call.  According to the City’s Nuisance Ordinance, 3 or more nuisance calls in any 30 day period from a property puts the owner on a list for “supervision” from the district’s community liaison officer for a full 12 months.  The owner must submit a plan for abatement for acceptance by MPD, fully execute the plan in a timely manner, check for nuisance incidents monthly at MPD Public Records office, and then submit a report and action plan for abatement for each incident.
 
My plan was approved and executed.  I do have continuing nuisance incidents occurring though, but so far only one was a repeat from the same tenant.  She had called the police to report that her son was receiving death threats.  If my son where receiving death threats, I’d call the police too, but the community liaison officer told me that that was considered a nuisance, and strongly implied that if I didn’t deal with it, the property would be designated as a Chronic Nuisance.  So, against my better judgment, I filed an eviction.  Of course, I was laughed out of court.  As any landlord will tell you, a failed eviction action usually means the situation will deteriorate. This is not good business, but the fact is I’m being strong-armed by MPD to act.
 
I have taken absolutely EVERY action I was directed to take, or suggested I take, by MPD and more.  I have responded to nuisance reports in as heavy-handed ways I can muster, with warnings, fines, and 5 Day Notices, to try and satisfy MPD.  However, I feel like I’m being railroaded, and no matter what I do MPD will designate it as a Chronic Nuisance.
 
Please understand that, while my building is by no means the “Ritz”, it is also by no means a slum either.  Nor am I a slum landlord.  This is a nice building in which we have invested heavily, increasing the value, as well as the tax collections for the City of Milwaukee. We turned this building around from a bad property in 2003, with crappy tenants who avoided calling the police like the plague, to a rehabbed property with much better tenants with higher expectations and no qualms about calling the police to demand service (which I pay for).
 
My understanding is that this ordinance was originally enacted to give the City some ammunition against irresponsible landlords.  I fear that MPD is using the ordinance to coerce landlords to enforce the law in their stead.  I have asked MPD on several occasions, both verbally and in writing, to provide me with information regarding any citations given to people who are involved in the nuisance activity, and I have gotten none.  The ordinance extends to 911 abuse.  Why landlords are put in a position where they are required by MPD to enforce 911 abuse is a mystery to me.  Why not fine AT&T – it’s their line!  The whole thing boils down to MPD’s inability to enforce the laws, and the abdication of their enforcement responsibilities in favor of coercing landlords to do their job for them, under threat of fines.  The whole thing is, in a word, insane. Even if a landlord is successful in eviction someone, the problem just goes somewhere else anyway.
 
The final insult to me is the fact that MPD’s definition of “property” may be a single family home, or a 30 unit building like mine. I get the same 3 call limit per month for 30 families as a single family in a regular house.  I pay 30 times more taxes than the single family owner, but I receive 1/30th of the service quota.  In my opinion this is an impossible and patently unfair standard.
There are single family homes and condos next to some of my buildings where the tenants are involved in gun play, drugs and prostitution.  I have lost tenants due to these neighboring activities.  Alas, these are not nuisance properties because there are less than 3 calls per month regarding each property.  I have a few family disputes and misdialed 911 calls each month from my 30 family building, and I’m the nuisance.
 
I thought that this individual’s email was extremely well-written and clearly pointed out several of the problems with how the City is applying the Chronic Nuisance property against landlords, such as:
1.   Regardless of the size of the property (whether it be a single family home or a 100 unit apartment complex) after 3 “nuisance activities” your property can be declared a chronic nuisance.

2.   Many of the so-called nuisance activities are not activities for which a Milwaukee County Court Commissioner or Judge will evict a tenant for participating in.   As this person stated, the writer indicaterd, when he tried to evict the tenant he was  “laughed out of court.”   I have been involved in eviction trials where at the close of evidence, rather then evicting the tenant that was selling drugs out of my client’s property, the Judger told the tenant that he really didin’t need to have 20 people coming and going from his apartment between the hours of 11 pm and 3 am most nights of the week and that he should stop that activity as it wasn’t fair to his neighbors.  The Judge then denied my clients request for a judgment of eviction but rather scheduled the case for a staus conference in 60 days to see if things improved.   If landlords cannot even get obvious drug dealers evicted how are they going to be able to have a tenant that littered, called 911, or made an excessive noise evicted?

3.   Some of the 911 calls are legitimate calls for which the police should be called and the owner of that property should not be put in the position of having to choose between receiving a fine and having his/her property declared to be a nuisance or telling his tenants not to call 911 for real emergencies.

4.   Oftentimes the property that is attributed with the call is not where the actual “nuisance activity” occurred.  I heard of an instance where a woman had gotten into a fight with her boyfriend at her home and then fled, she then stopped at a nearby apartment complex and asked one of the tenant’s if she could use her phone to call the police.  Seeing that the lady was upset, the tenant allowed her to make the call.  The lady called 911.  As a result of the tenant being a helpful neighbor to the victim, the tenant’s landlord was contacted by the police becasue the telephone call was considered to be an improper use of an emergency number.

I think the police and the Department of Neighborhood Services (which often gets involved in these situations) need to use some “common sense” and distinguish true nuisance activity from other activity rather than classifying everything as a nuisance. 

I also think that it would also be helpful for the police and DNS to spend some time in eviction court and observe just how difficult it is to evict a tenant for anything other than failure to pay rent.  Maybe after sitting in room 400 of the Milwaukee County Courthouse for an afternoon they will realize that they are living in an alternate universe if they think that a landlord can obtain an eviction judgment against a tenant who litters, improperly calls 911, makes loud noises, or loiters.

I have met with the new Commissioner of DNS, Art Dahlberg, along with other members of the AASEW board, and Mr. Dahlberg was also kind enough to speak at one of the AASEW’s membership meetings.  In speaking with the Commissioner, he has commented that he agrees that some common sense used when determining if something a a nuisance activity.  It is my hope that the addition of some common sense will occur ASAP so that landlords like the one that emailed me above, are not being placed in such an unfair position.

If Milwaukee’s Chrnoic Nuisance ordinance has been unfairly applied to you and your rental properties I would appreciate you providing me with the details by adding a comment to this post. 

Tags: , ,

State’s Budget Bill Amends Tenant Protection Act

Jul 22

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

On June 29, 2009 Governor Jim Doyle signed the 2009-11 state biennial budget bill into law.  This law in part made modifications to the Tenant Protection Act (starts on page 108) which offers tenants certain protections during the foreclosure process.  My earlier post on the Tenant Protection Act can be read here.

Specifically, the state budget bill modified the current law related to tenant protections in foreclosure actions as follows:

1.      ADDED – If  an eviction action seeks to remove a tenant whose tenancy was terminated as a result of a foreclosure judgment and sale, the complaint must identify that the lawsuit is an eviction that is being brought as a result of a foreclosure action.

2.     ADDED – A tenant cannot be named as a party in a foreclosure action unless s/he  has a lien or ownership interest in the property.  The fact that a tenant lives in the rental property that is being foreclosed upon is not enough to name them as a party in a foreclosure action.

3.     ADDED – If a tenant is improperly named as a party in a foreclosure action the court shall award the tenant $250 in damages plus his/hers reasonable attorney’s fees.

4.     DELETED – The portion of the Tenant Protection Act that required the exclusion of any tenant information related to foreclosure actions from appearing on CCAP.   That section was replaced with #2 above.

Tags: , ,

Milwaukee County to Post Notice on Who Can File and Appear in Court on Eviction Actions

Jul 21

Posted by Tristan R. Pettit, Esq. in Evictions, LLC's | 3 Comments

A friend of mine who is an employee at the courthouse and does much work in small claims court, and more specifically eviction court, forwarded to my attention earlier today a copy of a notice that will soon be posted in Room 400 (Eviction Court) and Room 104 (Clerk of Courts) of the Milwaukee County Courthouse.

The notice addresses the issues of who may sign an eviction summons and complaint and who may appear in court on an eviction lawsuit.

The notice that will be posted reads as follows:

_____________________

PLEASE NOTE

 In Small Claims Eviction cases, you may only sign complaints and appear in court on behalf of a property owner if you are one of the following:

  • The property owner (if the property is not owned by a corporation/limited liability corporation)
  • A full time employee of the property owner
  • An attorney

Employees of management companies or other outside service providers may not sign complaints or appear on behalf of property owners 

__________________

If this notice is going to be posted then it appears as if the clerks, court commissioners and judges will be dismissing eviction lawsuits that violate the above notice.

To read my earlier posts on these topics just click here and here.

Tags: , ,

AASEW’s Response to Rep. Schneider’s CCAP Legislation Can Be Found at www.DefeatAB340.org

Jul 20

Posted by Tristan R. Pettit, Esq. in AASEW, CCAP, Rep. Marlin Schneider, Screening Tenants | 5 Comments

For those of you that have been following my blog, you are well aware that State Rep. Marlin Schneider (D-Wisconsin Rapids) has introduced yet another bill attempting to restrict the public’s access to CCAP.  This new bill also will remove certain information from even being included on CCAP.  My prior blogs on this topic can be read here, here and here.

The Apartment Association of Southeastern Wisconsin (AASEW), a collection of landlords and rental property managers, are strongly opposed to Schenider’s new bill which is entitled AB 340,  and have decided to do something about it.  The AASEW has created a web page that can be found at www.DefeatAB340.org or by clicking here, which contains links to the actual bill as well as links to your state senators and representative so that you can contact them and convey your displeasure with this bill.

Please visit the AASEW’s web page and consider contacting your elected officials to express your views as to AB 340.  You should also forward the link to anyone and everyone you know that may be affected by this legislation. 

If passed, this bill will affect more than just landlords.  Parents, employers, day care providers and more, will be unable to use CCAP without paying an annual fee and having their CCAP searches recorded by the state.  Additionally, you will be unable to learn whether a person has been charged with a crime, found liable in a civil lawsuit, or had an eviction action filed against them – until after the case has been resolved, which is often months or years after the action was filed.

The bill will also allow a person who has information contained on CCAP but which did not result in a convictions or judgment (even if this was the result of a stipulated dismissal) to remove all reference to that information from CCAP.  The concept of open records will be hurt severly should AB 340 pass.

Please do your part to insure that AB340 fails.

Tags: , , , ,

FAIR HOUSING – PART 2: Interesting Statistics from HUD’s 2008 Annual Report

Jul 10

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Protected Classes | 4 Comments

I was recently reviewing the U.S. Department of Housing and Urban Development’s (HUD) Fiscal Year 2008 Annual Report on Fair Housing.  Not exactly beach reading but then the weather here in Milwaukee isn’t exactly conducive to going to the beach.

HUD and its various Fair Housing Assistance Programs (FHAP) agencies handle all complaints regarding discrimination related to the federal protected classes.  To see a list if the 7 federal protected classes please refer to my earlier post here.  The report contained some very interesting statistics.  You can review the entire Annual Report here. (Be patient as it is a large document and takes awhile to download)

In 2008, HUD and its FHAP agencies received a record-breaking number of housing discrimination complaints – 10,552.  That is a huge number when you realize that only a small portion of complaints are ever reported.  Added to that is the fact that most states also receive and investigate fair housing complaints with regard to alleged discrimination of the state’s protected classes (which often overlap with the federal classes). And many large cities also have a municipal agency that investigates complaints as well.  In Wisconsin, for instance, the State’s Equal Rights Division (ERD) investigates complaints of Wisconsin’s Open Housing law.  For a list of Wisconsin’s protected classes see my earlier posts here.

This is the third year in a row in which HUD and its FHAP agencies received more than 10,000 complaints.

The most common basis of housing discrimination complaints was involving a “disability” (4,675 complaints or 44%) with “race” coming in second place (3,669 complaints or 35%).  The most common type of complaint was discrimination in the terms, conditions, privileges, services or facilities for the sale or rental of housing (5,862 complaints or 56%) – typically this means treating a person differently such as having different requirements or rules for a person based on their protected class status.  In second place was the refusal to rent to members of a protected class (2,697 or 26%).

In 2008 HUD and its FHAP agencies closed 11,189 housing discrimination complaints – an all-time record.  54% of those complaints resulted in a determination on the merits by HUD (they made a determination as to whether or not their was discrimination in the specific case), while 29% of the complaints were resolved in a voluntary resolution by the parties prior to HUD making a decision as to whether or not there was discrimination.  The remaining cases were closed for administrative reasons, the report states.

Over the last 4 years, apparently the number and the type of complaints have remained relatively stable.  There was a slight increase in the number of complaints of disability-related discrimination and a slight decrease in complaints related to a person’s race over the past 4 years.

Fair Housing claims are not inexpensive. Housing discrimination charges that continue to the point that a hearing is held before an Administrative Law Judge (ALJ) carry a maximum civil penalty of $16,000 for a 1st offense.  That does not include the actual damages that can be awarded to the aggrieved person, nor do they include the attorney’s fees (of the complainant) or the costs that can be awarded.  Even if there is a finding of no discrimination, the cost to pay your own attorney is often quite high because of the length of time it takes for HUD to complete its investigation.  Once a complaint has been issued HUD has up to 100 days to conduct its investigation.  According to the report, over 800 investigations involved investigations lasting beyond the 100 days.  In the several fair housing cases that I have been involved with, the investigation process always lasted longer than 100 days and was very intrusive for my clients and their current and past tenants.

2008 was the first year in which HUD issued its first charge of discrimination in a case that alleged same-sex sexual harassment (two male roommates alleged that the property owner and a maintenance worker subjected one of the roommates to verbal and physical advances that were sexual in nature).

Other key cases in which HUD issued discrimination charges in 2008 included a complaint against a retirement community that refused to allow the use of motorized scooters in the units, and a complaint that a property owner refused to allow the keeping of an emotional support animal by a young boy with a form of autism (Asperger’s Syndrome).

If there is one key point to remember after reviewing HUD’s 2008 Annual Report it is that it is better to be very well-versed in the law of Fair Housing issues so that you can operate in a proactive manner by implementing legal screening and management policies, than it is to have to defend against a charge of discrimination after the damage has already occurred.

Tags: ,

FAIR HOUSING – PART 1: What Are The Protected Classes?

Jul 10

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

A large part of my law practice is meeting with and consulting with landlords and management companies with regard to how to avoid trouble. This would include assisting them with the drafting of rental documents and guiding them on the proper notice to use when terminating a tenancy. It also includes consulting with clients with regard to fair housing / discrimination issues.

I enjoy this consulting work as it typically occurs before the landlord is embroiled in a dispute or litigation – thus my client tends to be in a better mood at the consulting stage which puts me in a better mood also.

Recently I have had a lot of calls on topics related to discrimination and fair housing and so I thought that I would devote several posts in the future to topics related to fair housing issues.

The easiest place to start would be to identify the various protected classes under Federal and Wisconsin law.

Federal law (which starts at 42 U.S.C. 3601 et. seq.) has 7 protected classes which are:

1. Race

2. Color

3. National Origin

4. Sex

5. Religion

6. Familial Status

7. Handicap

Wisconsin law (which is found at §106.50(1), Wis. Stats) also includes the above 7 protected classes plus adds an additional 5 more, which include:

1. Marital Status

2. Sexual Orientation

3. Lawful Source of Income

4. Ancestry

5. Age (18 years and older)

It is important for managers and owners to also check their local municipal ordinances as well as because there are some municipalities that have added additional protected classes. The city of Madison for instance also treats convicted criminals, students, and a person’s physical appearance as additional protected classes. You can read more about the City of Madison municipal code – Ch. 32 entitled Landlord and Tenant here.

So if you make a housing decision based on a person’s membership in a protected class you may have discriminated against them. Discrimination in housing covers a wide range of activities such as: refusing to rent to, refusing to discuss rental terms with, refusing to allow the inspection of rental housing, refusing to renew a lease, causing the eviction of, misrepresenting the availability of rental housing, applying different terms or standards, and engaging in harassment, intimidation, or coercion of.  There are many more but you get the general idea.

It is important to remember that a landlord does not need to have the intent to discriminate in order to be found to have engaged in discrimination.  Also be aware that most insurance policies do not cover an owner’s or manager’s discriminatory acts.

Remember that just because someone is a member of a protected class does not mean that you cannot deny them rental or evict them. It only becomes discrimination if you do the above because they are members of a protected class.  So if you are denying a person rental or filing an eviction action against an individual for reasons other then their protected class status then you are not discriminating against them. For example, if a person does not meet your screening criteria because they have been evicted in the past, have no prior rental history, or their gross monthly income is not 3 times the monthly rent (or some other legal screening criteria that you have in place) then it is not discrimination to deny that person rental even though they may also be a member of a protected class.

Tags: , ,