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.
The law as written puts a landlord in a very difficult position as it requires the landlord to give the tenant a second chance even though the landlord has notice that the tenant has violent tendencies or is doing things that could jeopardize the safety of other tenants. I have always been concerned about the possibility that Tenant A, after committing the 1st breach (crime) and then curing the breach, then proceed to commit another crime and in so doing causes harm to another tenant. If that was to occur another innocent tenant is injured (or at the very least scared out of their socks) and there is always the possibility that the injured tenant might contemplate suing the landlord for failing to protect them from danger since the landlord had knowledge of Tenant A’s criminal tendencies. This would be a catch-22 sitaution for the landlord if I ever heard of one.
Section 8, site-based, subsidized housing prevents the above situation from occurring by allowing landlords to terminate the tenancy and evict a tenant (or family member or guest) that has committed certain criminal activity on or near the subsudized rental property, even if the tenant is under a lease for term. I call this the “One Strike” law. Market rate (non-subsidized) housing does not have a “one strike” law —- but with this proposed legislation, we may have one in the future.
SB 607, if passed, will allow a landlord of market-rate housing to terminate the tenancy of and evict a tenant, even if they are under a lease, if the tenant or the tenant’s guest commits certain crimes at the property or near the property, by issuing a 5 day notice with no right to cure.
The crimes that would allow a landlord to terminate a tenant’s tenancy include:
1. Battery (or related crimes),
2. Endangering safety by use of a dangerous weapon (or related crimes),
3. Criminal gang activity,
4. Criminal damage to property (or related crimes),
5. Prostitution (or related crimes),
6. Harassment (or related crimes),
7. Any other breach of the rental agreement that jeopardizes the health, safety, or welfare of the owner, his/her agent, or another tenant.
SB 607 also allows a landlord to terminate the tenancy of a tenant under a periodic tenancy (month to month) that has committed one of the aforementioned crimes, by serving them with a 5 day notice with no right to cure. This proposed modification of the law, while helpful, is not as important as the above mentioned changes involving tenants under leases for term, as a landlord with a month-to-month tenant has always had the right to serve the tenant with a 14 day notice to vacate (without a right to cure the breach) or a 28 day notice (for any reason at all). Nonetheless, SB 607 will allow a landlord of a month-to-month tenant to remove a dangerous tenant more quickly then before.
The bill will requires that the landlord give the tenant a written 5 day notice that states the basis of the breach and informs the tenant of his/her right to contest the termination if an eviction action is filed. If the tenant contests the eviction action, the landlord must still prove that the tenant or his/her guest committed the crime.
Please take the time to contact your state representatives and tell them that they should fully support this proposed bill.
Also take the time to thank Brian Fleming – President of Milwaukee RING – for taking the time and effort to bring this major “hole in the law” to Senator Plale’s attention. Without Brian’s work on this there would be no SB 607.
#1 by Attorney Andrew Schmidt on March 12th, 2010
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These are the same kinds of laws that exist in the HUD leases I see and they are wrought with corruption.
REALLY, You think this is going to help. probably on many but what about the LL who insists on sexual behaviors from his tenant because her live-in BF was arrested for 4th OWI.
Or the guy who has a football party and one of his guests is a known sex offender.
Hey, ALL crimes fit your paragraph 7.
I have written in opposition that without safeguards this law will be used by landlords abusively as it allows a landlord to terminate a lease without cause.
Just wait until some tenant’s attorney gets ahold of one of these cases.
I have always advocated to Landlords – “do your job right or the legislature will do it for you.”
ANDREW
#2 by John (Dr Rent) Fischer on March 12th, 2010
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I SOOOOO agree that it is nice to see a piece of legislation we can support instead of fight.
This is GREAT timing as the Wisconsin Apartment Association’s legislative day is Wednesday, 3/17 and since many of our members will be meeting with their elected officials, we can take this time to ask them for their support of this bill.
#3 by Tristan R. Pettit, Esq. on March 12th, 2010
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Andrew – Thanks for your comments. All good points. I guess my thought is that any law, rule or regulation can be abused if someone tries hard enough. Yes, “bad” landlords could abuse this law but I think there are many more good landlords out there that genuinely want to protect their tenants and their investment property and I view this legislation as step forward in recognizing how the current law can, at times, put a landlord in a catch 22 sitaution.
I’m sure the bad landlords aren’t retaining me and that is why I may not be aware of such abuse but I meet or talk with landlords every day that are forced to keep tenants who have commited crimes at the rental property thus endangering other tenants, and damaging property all becasue they are under a lease for term and they are thus afforded the right to cure the breach (crime).
Any legislation that can assist in preventing such a sitaution is a step in the right direction as far as I am concerned.
I also don’t think this legislation allows a landlord to evict a tenant without cause – the landlord will still need to prove up the crime in court if contested by the tenant.
Yes, the language of the proposed bill does include many crimes (especially the “catch-all” provision) but I’m not sure that I am understanding the two examples that you provided and how they support your argument. The landlord that is trying to obtain sexual favors from a tenant would still have to prove a crime was committed by the female tenant and under your fact sitaution he wouldn’t be able to do so as the female tenant did not committ a crime. Under the second example, I dont believe that a tenant invites a person who is a sexual offender over to watch a football game, has committed a crime. I can’t imagine a scenario based on those limited facts where a landlord would prevail in an eviction under that scenario even with the assistance of this new legislation.
You are correct however that the legal aid attorneys and legal action attorneys will not be in support of this bill. If a “bad” landlord is abusing this potential law then a tenant’s atty. should put him/her through the wringer — I think a good cross examination would prove the charade and the eviction would be dismissed. But as long as the landlord is required to “prove up” the crime if the tenant contests the eviction I do not see this legislation as allowing a “no fault” eviction.
#4 by Brian K on March 30th, 2010
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This is a terrible law, just as dangerous to freedom and landlords as the nuisance law. The next step will be requiring landlords to evict under threat of property seizure with nothing more than circumstantial evidence, as the nuisnance law already does. These types of laws need to be recognized by landlords and tenants for what they are: 1. The state, in recognition of its complete abdication of responsibility with respect to enforcing the criminal law, attempting to make landlords responsible for enforcing the criminal law by imposing civil sanctions on those whom the state is incompetent and/or unwilling to convict and/or punish.2. Another way for the state to circumvent double jeopardy laws by effectively allowing a tenant to be prosecuted at both the state and civil level for the same supposed crime.3. Under this law, smart Milwaukee landlords will no longer be able to direct criminal applicants to Madison, since Madison’s law outlawing discrimination in renting based upon an applicant’s criminal record will likely be voided by this law.
My recommendations to those concerned about what “rights” they may not currently have.
1. Use only month-to month rental agreements. A landlord’s supposed rights under longer leases are un-enforceable at either law or equity- all landlords know this.
2. Embark upon a publicity campaign espousing the fact that criminals cannot be discriminated against in Madison. When they all move there, maybe the law-makers and judges there will wake up.