Archive for March, 2010

What Is The Life Expectancy of the Carpet (or Refrigerator or Stove or Hardwood Flooring) In My Rental Unit?

Mar 30

Posted by Tristan R. Pettit, Esq. in Collections, Tenant Damage | 9 Comments

Those of you that have appeared in eviction court in an attempt to obtain a money judgment against a tenant that has damaged your rental unit know that oftentimes the court will not allow you to recover the total cost to replace the damaged item.  Even when the court agrees that the tenant caused the damage there will be times when a landlord cannot obtain the full replacement value.

Often when this occurs it is due to issues surrounding the life expectancy of the item that was damaged.  Whether it is carpet, a stove, mini-blinds, or a hardwood floor, all items have an estimated life expectancy.

If the item is well past it’s life expectancy it would not be fair to award the landlord the full replacement cost because to do so would put the landlord in a better position than s/he was in prior to the item being damaged by the tenant.  To award the landlord the full replacement cost of a damaged item may result in the landlord obtaining what is often referred to as a “windfall” — and courts do not like windfalls.

Let me give you an example to better illustrate.  Assume the following facts:

1.     The carpeting in your rental unit is 5 years old.

2.     The life expectancy of carpeting in a rental unit is 10 years.

3.     The tenant damaged the carpeting by spilling Kool-Aid and cooking oil throughout and in the spots where there are not stains there are cigarette burns as the tenant used the carpet as an ashtray.

4.     The carpeting cannot be repaired and must be replaced.

5.     Total cost to replace the carpeting is $1,000  (I am trying to keep things simple so I don’t confuse myself with the math : )

Under the example above, a court would most likley only allow the landlord to recover $500 in damages against the tenant for the replacement of the carpet. 

The reasoning is that since the tenant moved into a rental unit with 5 year old carpeting, the landlord should only be able to recover for damage to a 5 year old carpet.  As such, the court will only allow the landlord to recover a percentage of the actual cost to replace the carpet.  In this example that would be $500 – or half of the actual cost — because the carpet was already 5 years old (out of its expected 10 year life span) when it was damaged.  If the courts allowed the landlord damages of $1,000 then the landlord would be gaining a windfall because (in theory) the landlord would be getting the tenant to pay for the entire cost of brand new carpet (rather then 5 year old carpet).

I know that many of you are snickering as you read this and are saying “the tenant is not going to be pay me anything as they are not collectible and I will never see any money.”  That may be true — and I empathize with you  — but I am merely trying to explain why courts will not allow a landlord to recover all of his/her replacement costs. 

In Milwaukee County there has always been an unwritten rule — at least as long as I have been practicing law — that the life expectancy of carpeting in a rental unit is 10 years.  I never knew where that number came from – I just knew that it was used.  Other counties may have assigned a different number to the life of rental carpeting, I don’t know, but in Milwaukee it is 10 years.

I have always wished that there was a resource that I could look to that listed the life expectancies of various items found in a rental unit such as carpeting, mini-blinds, sinks, hardwood floors etc. etc.  I have yet to find such a resource, but while reading the blog of another landlord — John (“Dr. Rent” ) Fischer – I noted mention of a resource that set forth the life expectancies of various household items.  John, who besides being a landlord is also a property manager, blogger, and president of the Wisconsin Apartment Association, was nice enough to provide me with a copy of that resource.

Here is a link to the document that lists the life expectancy of different products or items in the home.

We all know that the life expectancy of items in a rental property are much less then the life expectancy of furnishings in our own homes.  Let’s face it, rightly or wrongly, people do not treat property owned by a landlord as nicely as they would treat the property if they owned it themselves (and had to pay to repair or replace the item themselves if it were damaged).

Nonethless, having a document that compiles the life expectancy of items contained in an owner-occupied home is still a good starting point.

This information in this document was taken from various sources such as:

     – Magazines:  Appliance Magazine (Sept. 2005)

     – Specific Manufacturers:  Timberlake Cabinet Co., United States Ceramic Tile Co., Delta Faucet Co., Floortec, Georgia Pacific Corp.

     – Associations:  National Wood Flooring Association, American Concrete Pipe Association.

CAUTION:  This information should be used as a general guideline only.  As I mentioned previously, the information provided is for the life expectancy of items in an owner-occupied home — not a rental unit.  Additionally, much of this information is provided by specific manufacturers and may not be the same for the item that you are using in your rental property which might have been manufactured by a different company.

MORE CAUTION:  None of the information in the attached table should be interpreted as a representation, warranty, or guarantee regarding the life expectancy or performance of any individual product or product line.  You should not make a buying decision or product selection based solely on the information contained in this table.

EVEN MORE CAUTION:  The table is not a legal document and cannot and should not be cited in court.

I am merely providing this information to assist landlords who are attempting to determine a reasonable percentage of replacement cost to charge a tenant that has damaged your rental unit.  This information may also assist a newer landlord who does not have years of experience on which to rely when attempting to estimate the life expectancy for certain item in his/her rental property.

Judge Siefert to Rotate Out of Small Claims Division in August; Judge Carroll to Replace

Mar 29

Posted by Tristan R. Pettit, Esq. in Evictions, Milwaukee County, Miscellaneous | No Comments

Walking into the courthouse today I ran into an acquaintance of mine who works within the court system.  During our chat I learned that Judge John Siefert, who is currently presiding over the Small Claims Division (which includes all eviction actions) in Milwaukee County, will be rotating to a different calandar come August 1st. 

Judge Jane Carroll will be replacing Judge Siefert as the Small Claims judge.  Judge Carroll is currently presiding at Children’s Court in Wauwatosa.  She is a former District Attorney and has not previously been a judge in the Small Claims Division.

NEW LANDLORD FORM NOW AVAILABLE REGARDING TENANT’S RESPONSIBILITY FOR LAWN CUTTING AND SNOW REMOVAL

Mar 23

Posted by Tristan R. Pettit, Esq. in Rental Agreements, Rental Documents | 5 Comments

I have recently completed drafting a new form for landlords to use that is now being sold at Wisconsin Legal Blank Co., Inc.

Addendum To Residential Rental Agreement: Responsibility for Yard Care and Exterior Upkeep

Form #985 is entitled Addendum To Residential Rental Agreement.  This document sets forth a tenant’s responsibility for yard care and exterior upkeep of the rental property.  This form should only be used if the landlord is renting out a single-family home or a duplex and wishes the tenant to be responsible for yard care and exterior upkeep (such as snow and ice removal and the cutting the lawn).  This form should not be used for multi-unit apartment buildings. 

This document addresses the following tenant responsibilities:

1.   Snow and ice removal

2.   Cutting of grass

3.   Disposal of garbage

4.   Disposal of recyclables

5.   Removal of litter/debris

6.   Special pick-up of large items

7.   Exterior lighting

8.   Porches

9.   Windows

10.   Damage to exterior

11.   Parking of vehicles

12.   Washing of vehicles

13.   Swimming/wading pools

14.   Watering of grass, and

15.   Yard tools

This form states that if the tenant fails to perform any of the listed duties that the landlord can choose to do the work  himself or herself or hire someone to complete the work and that the tenant will be responsible for repayment of any and all associated costs.  Additionally the form indicates that failure to complete the listed duties is a material breach of the rental agreement and may be grounds for eviction.

This addendum is a nonstandard rental provision document (refer to ATCP 134.06(3)(b)) and as such it allows a landlord to deduct the actual costs incurred by the landlord (should the tenant fail to complete the duties) from the tenant’s security deposit.

It is important to remember that form #985 is just that — a form.  Some of the paragraphs may not be applicable to your specific situation.  Some landlords may decide that they do not want the tenant to perform some of the listed work.  In that case the landlord should cross out the provisions that are not applicable and then initial the change and have the tenant also initial the change. 

There will be other situations where a landlord may want the tenant to be responsible for additional duties which are not listed in the form.  In that case the landlord should attach a separate sheet which will list the additional duties.  This attachment should clearly be labeled as page two of the Addendum To Residential Rental Agreement: Responsibility for Yard Care and Exterior Upkeep and should also be signed and dated by all adult tenants.  As always, if you are unsure whether any additional provisions that you add to this form are allowed under Wisconsin landlord-tenant law, you should have those additions reviewed by an experienced landlord-tenant law attorney.

Since many landlords of duplexes and single-family rentals do require their tenants to perform yard care and other related duties, it is my hope that this form will assist landlords in specifying in writing what duties the tenant will be responsible for and what will happen if the tenant shirks those responsibilities.

I would like to thank Attorney Heiner Giese for his review and suggestions to this form.

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State Supreme Court To Jump Into The Debate Over Restricting Information on CCAP

Mar 15

Posted by Tristan R. Pettit, Esq. in CCAP, Rep. Marlin Schneider, Screening Tenants | No Comments

The Journal Sentinel published an article on Saturday, March 13, 2010 entitled “Supreme Court Considers Limits To Online Court Records.”  It appears that while landlords have pretty much quashed Rep. Schneiders attempts to pass legislation on the restriction of infromation posted on CCAP, that the State Supreme Court will be reviewing the issue in the near future.

Patrick Marley’s article states that Rep. Schneider did not believe his CCAP bill would come up for a vote this spring.  However, Marley states that in an administrative meeting last month, the Wisconsin Supreme Court agreed that they should study limiting what is posted on CCAP.  Justice Prosser was quoted as saying that “whatever problems we have has been incredibly exacerbated by CCAP and the Internet.  The case for redress is much too compelling to just let it die.”

The State Bar of Wisconsin has also asked the Supreme Court to make it easier to remove CCAP records and filed a request with the Supreme Court to make it easier to expunge records, both online and at the courthouse.

So while the legislative attempt to restrict CCAP may be over the overall fight appears to be continuing.  Be sure and read the comments to Marley’s article for a lively discussion for and against restrictions on CCAP.

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AASEW Trader’s Corner To Be Held Prior to Monthly Meeting on Monday, March 15th

Mar 13

Posted by Tristan R. Pettit, Esq. in AASEW, Investing In Rental Property | 1 Comment

Are you thinking about buying or selling or trading? Or, maybe you’re just wondering where the RE market is currently at. Or, maybe you know a non-member (future member?) who is. No matter, because all are welcome to join us at the new AASEW Traders’ Corner.

If that isn’t enough, check this out. The Traders’ Corner is also a great place to find a buyer for that truck you no longer need or someone selling their over-supply of rehab materials. Whatever it is that you are looking to find or trying to sell that is related to our business, this is the place to be.

If all of that still isn’t enough, consider the networking possibilities.

When? Monday, March 15th, 6:30 – 7:00 PM
(One half hour before the AASEW General Meeting)

Where? Best Western Motel, 1005 S. Moorland Rd.
(I-94 to Exit 301A, then south 1/4 mile)

We look forward to seeing you there.

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

Mar 11

Posted by Tristan R. Pettit, Esq. in Evictions, Legislation, Notices | 4 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, Protected Classes | 3 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.