Archive for December, 2009

Landlords Sue City of Milwaukee To Stop Residential Rental Certificate Ordinance

Dec 31

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Legislation, Mandatory Rental Inspections / Landlord Licensing | 1 Comment

On December 29, 2009, three landlords filed a lawsuit against the city of Milwaukee in an attempt to stop the new Residential Rental Certificate Ordinance that was recently passed. 

The lawsuit includes a complaint, motion for temporary injunction, ex parte motion for temporary restraining order (TRO) and supporting affidavits.  Essentially, the plaintiffs are arguing that the ordinance as written is (1) unconstitutionally vague, (2) contains fatal defects, (3) fails to provide for an impartial review and (4)interferes with their constitutional right to contract with their tenants.

I would suggest that you read the entire lawsuit but I will attempt to summarize the plaintiffs’ main arguments.

1.    1st claim: The ordinance is unconstitutionally vague

The plaintiffs’ argue that the ordinance contains terms and phrases that are so vague that they do not properly notify landlords owning rental properties in the two designated areas as to what specific conditions will result in a denial of a residential rental certificate or the revocation of a certificate.  The ordinance gives the DNS Commissioner and his inspectors the subjective power to determine whether the conditions in a rental unit constitute a denial or revocation of the certificate.  This subjective power will result in a non-uniform application of the ordinance.

The plaintiffs cite 7 examples within the ordinance where the landlord does not have sufficient notice as to what specific conditions or number of conditions will trigger a denial or revocation of a rental certificate by the city.

2.     2nd claim:  The ordinance contains fatal defects

Basically this argument states that the ordinance as written contains terms which are unclear, have no definition, and fail to set forth clear standards for which a rental certificate will be granted.  Additionally it is argued that the ordinance gives the DNS Commissioner and his inspectors the arbitrary power to grant, deny or revoke a rental certificate without providing specific standards as to how that discretion should be used.

The plaintiffs provide 9 examples within the ordinance where significant terms are not defined or are unclear.  Essentially their argument is that the standard as to what will casue the issuance of a rental certificate is a subjective standard contained only in the minds of the Commissioner and his inspectors (and essentailly that the subjective standard will most likely vary from one inspector to the next).  This argument also focuses on the fact that the ordinance allows for the DNS Commissioenr to draft rules or regulations  which have not been made a part of the ordinance.  This means that the Commissioner could change the rules at any time and without providing owners prior notice of the changes.  The rules and regulations are not required to be made publicly available since they are not contained in the ordinance itself.

3.     3rd claim:  Failure to provide impartial review

Under the ordinance as written if a landlord does not agree with the decision rendered by the city inspector, the landlord can appeal that decision to the Commissioner of DNS — the employer of the inspector that made the intial decision.  The plaintiffs argue that as written the ordinance allows the individual and agency that made the unwritten rules for inspection and then subjectively applied those rules, to also act as the decision-maker for the review of any contested determination.  Wisconsin Statutes Sec. 68.11(2) require that all municipalities provide an “imparital decision-maker . . . who did not participate in making or reviewing the initial determination” to preside over any review.

4.     4th claim: Interference with the constitutional right to contract

According to the ordinance, all rental units within the two designated areas will be required to have a rental certificate in place (if there is a tenant residing in the unit) as of January 1st, 2010 — Friday.  If no certificate is in place by 1/1/10 then the owner of the rental will be in violation of the ordinance as written.  The argument made by the plaintiffs is that since the ordinance does not provide for the rental certificates to be issued until after an inspection takes place (which will be at least 30 days after 1/1/10) that landlords will be forced to terminate the tenancies of their tenants or else be in violation of the ordinance.  By being forced to issue a termination notice to their tenants, the plaintiffs argue that the city isinterfering with the landlords and tenants rental agreement – and by doing so they are interfering with a landlords right to enter into a contract with his/her tenant.

The plaintiffs are asking that the court to temporarily enjoin the city from enforcing the residentail rental certificate ordinance.  They are also asking the court to issue an order declaring that the ordinance is invalid.  Finally the plaintiffs are asking the court to permanatly enjoin the city from enforcing the ordinance.

This lawsuit has been tabbed to Judge Timothy Witkowiak.

A hearing on the plaintiff’s motion for a temporary restraining order was held earlier today before Judge Timothy Dugan.  Judge Dugan denied the landlords’ motion for a TRO without reaching the underlying problems with the ordinance.  One of the requirements in order to be granted a TRO is that some “irreperable harm” must be demonstrated.  Judge Dugan felt that becasue no landlord has been issued a citation by the city and because the city has not tried to remove any tenant from the plaintiff’s’ rental units, as of yet, that the plaintiffs failed to demonstrate any irreperable harm.”

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Upcoming AASEW Meetings, Topics & Speakers

Dec 23

Posted by Tristan R. Pettit, Esq. in AASEW, Lead-Based Paint, Remodeling / Renovation, Seminars | No Comments

The Apartment Association of Southeastern Wisconsin, Inc. (AASEW) has some very interesting speakers and topics for its upcoming monthly membership meetings in 2010.  All meetings are held on the 3rd Monday of the month at 7 pm at the Best Western Midway Hotel which is located at 1005 S. Moorland Road in Brookfield.  There is no cost to attend the meetings.  If you are not yet a member of AASEW, attending one of our monthly membership meetings is a great way to see what the organization is all about and learn how membership can benefit you as a landlord, property manager or vendor.

Our January 18th meeting will feature Attorney Robert Muten of Reinhart Boerner Van Deuren S.C.  Atty. Muten will speak on the issue of employees vs. independent contractors.  Whether a person is an employee of your business or an independant contractor will affect all of us at some point in our lives if the issue has not already confronted you.  I have done research on this very interesting topic for clients in the past and the determination as to whether you are an employee or an independant contractor is very fact-specific.  You will not want to miss this very informative meeting with Atty. Muten.

Steven Antholt of the State of Wisconsin’s Department of Health Services will speak at the February 15th AASEW meeting.  He will discuss the new Lead-Based Paint Renovation, Repair and Painting Program.  This new program will affect everyone that owns or works on rental property and who “disturbs” more than 6 feet of interior space or 20 feet of exterior space, and/or is replacing any doors or windows in pre-1978 housing.  This new law requires individuals to get specific training prior to its enactment date and to comply with a myriad of rules and regulations.  The fines for ignoring this new law will be stiff — so it would be in all of our best interests to be in attendence at this meeting.

On March 15th, Stacy Hegg, Property Manager for Wellston Apartments, will discuss best practices in rental property management and provide us with some management tips that we can use when managing our own properties.  I have had the pleasure of co-presenting a seminar with Stacy a few months ago and found her to be a dynamic, knowledgeable, and enjoyable speaker.  Come learn how to better manage your rentals from an expert in the industry.

I hope to see all of you at these future meetings.

I would like to wish everyone a healthy, safe, and happy holiday season.  I apologize for the lack of substantive blog articles this past week but I have been very busy dealing with all of the crowds while trying to finish my last minute holiday shopping  :  )

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Rep. Marlin Schneider Amends AB-340 (CCAP Bill)

Dec 14

Posted by Tristan R. Pettit, Esq. in AASEW, CCAP, Legislation, Rep. Marlin Schneider, Screening Tenants | 8 Comments

On December 2, 2009, Rep. Marlin Schneider (D-Wisconsin Rapids) made an amendment to AB-340.  Referred to as Assembly Substitute Amendment 1 to 2009 AB 340, this revised bill essentially would create two versions of the CCAP database.  Schneider’s amendment appears to be — based on its timing at least — a partial response to the Apartment Association of SE Wisconsin’s critical response to a memo that Schneider sent to other members of the Wisconsin legislature and staff on November 20, 2009.  The problem with Rep. Schneider’s amendment, if it is indeed a response to the AASEW’s criticisms, is that it ignores everything that the AASEW attempted to explain to him.

The original AB 340 can be read in its entirety at  www.DefeatAB340.org.  This site also contains background information on the sponsors of AB 340, responses from across Wisconsin to Schneider’s bill, and Schneider’s earlier attempts to restrict CCAP and prevent landlords from legally screening rental applicants.

Version #1 

Under the amended AB 340, the first version of CCAP would remain exactly as we now know it.  It would continue to provide data on pending cases and completed cases that were resolved by stipulated dismissal, acquittal, or motion.  It would also continue to provide information as to all original criminal charges filed even if those charges were later reduced or dismissed. 

However, this fully transparent version of CCAP would be restricted to only a “chosen few,” namely:

1.   Justices, judges, magistrates, court commissioners, and other employees of state, federal, or municipal courts and agencies who require access to court documents and records during the course of their employement.

2.   Law enforcement officers.

3.   Attorneys and their employees.

4.   Members of the Wisconsin Newspaper Assoc., the Wisconsin Broadcaster’s Assoc., and any other Wisconsin media organization designated by the director of state courts.

5.   A debt collector licensed under Sec. 218.04, Wis. Stats.

Version #2

The second version of CCAP would be a redacted version (just as was set forth in the original AB 340) and would exclude any and all information about any civil or criminal case that had not yet been resolved by: (1) a finding of guilt, (2) a finding of liability, (3) an order of eviction, or (4) the issuance of a restraining order or injunction.

Under the revised AB 340, a person would still be able to request that the director of state courts remove all CCAP information relating to that individual’s case if it did not result in a finding of guilt, liability, eviction judgment, or TRO/Injunction, or if it was reopened, vacated, set aside or overturned on appeal.  Thus, even the “chosen few” detailed above would still not have access to this information if an affected individual made a request to remove it from CCAP.

The revised AB 340 appears to have eliminated the requirement that all users must register with the Director of State Courts and pay a $10 fee.  However, still intact in the amended bill is the requirement that a person who has been denied employment, housing, or a public accomodation, be informed that said decision was made after reviewing information contained on CCAP.  The intentional failure to comply with this section could result in a $1,000 fine.

The revised AB 340 is not an improvement over its predecessor.  Yes, I guess it does allow a select few to access most of the information currently contained on CCAP but what about those individuals who are not included?  Landlords, employers, moms and dads, and everyone else excluded from accessing the info on the “real CCAP” are still being prevented from using CCAP to obtain information that falls under Wisconsn’s open records law.

I wonder just how much time Rep. Schneider and his staff spent drafting the revised AB 340?  Since  the revised version still ignores Wisconsin’s open records law and still hinders a landlord’s ability to properly – and legally – screen a prospective renter, I hope that they didn’t spend too much time on it because I still don’t think it will pass. 

What are your thoughts about this revised version of AB 340?  Let me know your thoughts by sending a “comment.”

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AASEW Holiday Party Tonight

Dec 14

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

It is not too late to attend.  You can register at the door.

Cost is $25 per person.

Location: Clarion Hotel at 5311 S. Howell Ave.

Music and lots of Food.  Cash bar.

forget about all of the anti-landlord legislation being drafted and celebrate the holidays with us.

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Mayor Signs Milwaukee’s Residential Rental Certificate Program Ordinance

Dec 11

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Legislation, Mandatory Rental Inspections / Landlord Licensing | No Comments

About 1 hour before the close of business yesterday, December 10, 2009, Mayor Tom Barrett signed the city of Milwaukee’s Residential Rental Certificate Program ordinance into law.  Mayor Barrett left everyone waiting and wondering if he would sign it as the deadline to do so was the close of business yesterday.

The ordinance can be read in its entirety here.

The Preinspection Checklist can be found here.  The checklist gives a detailed overview of all items that DNS will be inspecting when they come knocking in 2010.  The landlords in the two designated areas will probably get pretty familiar with that checklist during the next 5 years of the “pilot program.”

The ordinance will go into effect as of January 1, 2010.

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Does Your Tenant Have A Pet? If Yes, Then You Should Be Using A Written Pet Agreement

Dec 9

Posted by Tristan R. Pettit, Esq. in Pets, Rental Documents | 1 Comment

In talking with my clients and potential clients over the past year, I have also noticed that more and more landlords are allowing tenants to keep pets.  I am not sure if this is because of the many pet owners that were also homeowners that have since lost their homes to foreclosure and have been forced to become renters or if it is because landlords are trying to be more accomodating to their tenants’ wishes in order to keep their rental units occupied during a difficult recesssion — or a combination of both. 

Whatever the reason for this trend, if you are allowing your tenants to have pets then you must make sure that you are using a strong written Pet Agreement.  Unfortunatly too many landlords do not use such a document – and it typically is to their detriment.  Let’s face it, “man’s best friend” (if never trained or poorly trained) can cause A LOT OF DAMAGE to a rental unit.  Don’t even get me started about cats.  While I personally have a cat that I am very fond of my experience with cats in rental units has not been good.  Can you say “personal litter box?”  Here is a Wisconsin Court of Appeals case about the damage that pets can cause to a rental unit.

Whether or not you choose to allow pets in your rentals is a business decision that all landlords must grapple with at one point or another.  All animals, even rabbits, birds, reptiles, and fish can end up causing damage to a rental unit.  If you have made the decision to allow pets then you need a good Pet Agreement. Read the rest of this entry »

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AASEW Continues To Fight Against The City of Milwaukee’s Residential Rental Certificate Program

Dec 7

Posted by Tristan R. Pettit, Esq. in AASEW, Legislation, Mandatory Rental Inspections / Landlord Licensing | 1 Comment

The Apartment Association of Southeastern Wisconsin, Inc. (AASEW) continues its attempt to defeat the recently passed ordinance creating a Residential Rental Certificate Program in two areas of the city.  On December 7, 2009, the AASEW issued a Press Release urging the mayor to veto the legislation in order to avoid expensive litigation. 

Additonally, President of the AASEW Tristan Pettit wrote a letter to Mayor Tom Barrett pointing out many of the legal problems with the ordinance.  A similar letter was sent to the members of the Common Council  prior to their vote last week – which went ignored.  The letter specifically delineates 6 of the many structural and legal problems with the ordinance and encourages the mayor to veto the legislation in order to spare the city the time and expense of defending the poorly drafted legislation in court.

The Mayor has until the close of business on Thursday, December 10, 2009 to sign the legislation or else it would go back to the Common Council for reconsideration.  If the Mayor vetoes the ordinance then the Common Council would have to garner 10 votes (from the 15 members) in order to override the veto.

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