Archive for May, 2010

A Short Hiatus

May 12

Posted by Tristan R. Pettit, Esq. in Miscellaneous | 5 Comments

As many of you know, I am about to get married at the ripe old age of 40 this Friday.  My fiancee, Nancy, and I will be getting married in Maui and then spending some additional time honeymooning on the islands.

While I initially thought about bringing my netbook with me and posting a blog or two while vacationing, upon deeper reflection I have decided against this — somehow I don’t think that would be a good way to start out my marriage.

As such, I will be taking a short hiatus through the Memorial Day holiday.

Assuming I am not buried beneath a desk of work, voicemails, emails and mail upon my return — I have never been out of the office for more than 5 days, yet alone 2 weeks as will be the case this time — it is my plan to resume blogging during the first week of June. 

I hope that you all will understand and not forget about this blog during my absence and I look forward to resuming my blogging upon my return as a married man.

Happy Blogiversary

May 11

Posted by Tristan R. Pettit, Esq. in Miscellaneous | 4 Comments

May 15, 2010 will be the one year anniversary of Tristan’s Landlord-Tenant Law Blog.  I thought I would use this occassion to post some interesting data that I have learned about my blog over the past year – thank you Google Analytics.

When I first began this project I did not know what to expect.  I have been overwhelmed by the blog’s popularity and the support of its readers over the last 12 months.  My initial hope was to create a site that landlords and property managers could go to to learn more about landlord-tenant law in Wisconsin.  It was also my hope that this blog would allow for those of us who own rental properties to discuss best practices and to learn from each other.  I think these two goals have been achieved, and then some.

As I write this post, there are currently 111 posts that viewers can read covering all aspects of landlord tenant law including: new legislation affecting the rental housing industry, new case law that has changed Wisconisn landlord tenant law, discussions about best management practices including how to legally serve a 5 day notice and how to draft a 21 day letter (statement of how security deposit was applied), fair housing/discrimination law, upcoming seminars on topics of interest to landlords and much much more.

There have been over 233 comments posted about the 111 blog posts.  With an average of over 2 comments per post it seems as though there has been at least some discussion about the topics that are important to the readers.

Since going live, there have been over 17,000 visits to Tristan’s Landlord-Tenant Law Blog.  During those 17,000 + visits over 42,375 pages have been viewed.  When visiting my blog people spend an average of 2 minutes and 38 seconds on the site and view an average of 2.47 posts.

Of those 17,000 + visits, over 16,400 of them came from visitors within the United States.  The site has also received visits from readers in England, Canada, India, Austrailia, the Philippines, Ireland, and Mexico.

Over the past 12 months, the most popular blog posts have been:

1.   Late Fees-Part 1: What Amount Can You Legally Charge?

2.   Lead-Based Paint Disclosure Form: You Must Use This Document

3.   How To Legally Serve A 5-Day Notice To Pay Rent or Vacate

4.   Suing An Ex-Tenant For Past Due Rent: What Factors To Consider

5.   SSN Validator: Free Website That Allows You To Verify A Social Security Number.

Just this past month I have started to receive several “pingbacks.”  I had to call my IT guru to efind out what the heck a pingback is, but I learned that they are a good thing.  Essentially a pingback is someone linking to your blog – a sign that you have some useful content.

To give you an idea of how the blog has grown since its debut, during its first full month only 28 people visited the site.  The next month that number jumped to 731.  Last month there were over 2,221 visits to the blog. 

I realized the value of this blog one day when I was sitting in Eviction Court in Milwaukee County and overheard one landlord talking to another and telling him about my landlord-tenant law blog that he needed to check out because it contained some helpful information.  A few days later, I was approached by a Legal Action attorney said that she appreciated the information on the blog because she felt that it was important to get the correct information out to the public.

One unexpected bonus that has occurred as a result of this blog is that I have been able to use some of my posts to assist my current clients.  I have started providing clients with links to certain blog posts to emphasize a point that I made to them during a consultation.  Being able to provide a client with the basic law about a particular topic that we just discussed has been much appreciated.  They can then print out the post and refer back to it in the future.

Along with the good, there has some bad.  After one recent post dealing with the City of Milwaukee’s plan to enact a new ordinance requiring mandatory rental inspections, I was flamed by another blogger.  My skin is pretty thick so this didn’t bother me too much although I still have difficulty comprehending that the same person who will rant and rave to high heaven on the internet and call you every name under the sun and attack you personally, would never have the nerve to say things to your face.  Just read some of the comments that people post on the journal Sentinel blogs — WOW.  Hiding under an anonymous screen name seems to give some people carte blanche to act without consideration or foresight.

Even worse than being flamed myself, was the fact that a friend of mine was also flamed because he was attempting to assist me on a technical matter beyond my grasp.  My friend uploaded a flyer that had been distributed on the east side of Milwaukee and which contained some very outrageous rhetoric against the proposed ordinance.  Because I did not yet know how to upload a document and then link to it on my blog, I needed some assistance.  Unfortunately, it was spread across the blogosphere (OK just the Milwaukee blogosphere) that my friend was the author of the flyer – which was not the case – just because he was the person that uploaded the document. 

Over the past year however, that was the only sour moment related to my blog that comes to mind.  For the most part I have enjoyed publishing this blog and hope to continue doing so as long as it continues to be helpful to others. 

I have learned much about myself during this past year as a blogger.  First, I have learned that I am not as fast of a writer as I thought I was – my fiancee will testify to this as she has watched me sit in front of my computer for hours only to have a short blog post to show for all of my work.  She has often had to encourages me to turn off the #%@* computer and come to bed.  Second, I have learned that I actually do procrastinate (at least I do when it comes to writing a blog post).  Third, I have also learned that while I type fast for a guy with no training, I do not type accurately.  This sad fact dawns on me time and time again each morning as I sit with my bowl of Kashi cereal proofreading the post that I drafted the night before.   While I actually do proof read my posts multiple times – I still find many typos and grammatical errors.

While I have been pleasantly surprised with the success of this blog, I by no means plan to sit back on my laurels and stagnate.  If you have any suggestions of topics for future posts please let me know.  I would like to tell the reader who faxed me months ago and asked me to write a post about how a tenant’s bankruptcy filing affects the eviction process, that I have not forgotten about you.  While I often cannot post as frequently as I would like — that darn “work” thing seems to get in the way — I most certainly am willing to write about topics and issues that are of particular interest to you.

In closing, I would like to thank everyone that has visited my blog this past year, and especially the 80 of you that are currently subscribed to my blog.  Without your interest and readership, this blog would just be another lawyer spouting a bunch of legal mumbo jumbo.

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Update On Landlords’ Lawsuit Against City of Milwaukee and Its Rental Inspection Ordinance

May 4

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, DNS, Residential Rental Inspection (RRI) Program / Mandatory Rental Inspections / Landlord Licensing | No Comments

There has not been a lot of media reporting on the lawsuit brought by three landlords against the City of Milwaukee and its rental inspection ordinance so I thought I would take the time to update you on its status.

If you are unfamiliar with the basics of the lawsuit you should refer to my earlier post on the topic.

The City of Milwaukee has filed a Motion To Dismiss the Landlords’ lawsuit.  Essentially the City is arguing that the lawsuit against it should be dimissed because the City was not provided the proper notice of the landlords’ claims prior to the lawsuit being filed.  In Wisconsin, if a person wants to sue a government entity – which would include the City of Milwaukee — the law states that prior to the lawsuit, the government entity must be served with a Notice of Claim.  The City then has 120 days to review that Notice and either attempt to settle the claim or deny the claim.  If the City does not deny the claim within the 120 days it will be deemed denied anyway.  After the 120 days have passed, a person then has 6 months in which to file the lawsuit.  If more than 6 months passes then the person would be precluded from filing the lawsuit.

The reasoning behind what is called the “Notice of Claim” statute (Sec. 893.80, Wis. Stats.) is allegedly to allow the government an opportunity to settle a claim in order to avoid expensive litigation.  A secondary reason for the requirement is to provide the government with enough information so that it can budget accordingly for settlement or litigation.

As a quick aside: I have sued a government entity on behalf of a client in the past so I am familiar with the Notice of Cliam statute.  In my opinion the government does very little during the 120 days after it is served notice.  The typical reaction is to ignore the claim and not even take the time to deny it but rather to allow the 120 days to pass after which the claim will be automatically denied. In fact, I would even go so far as to say that based on my experience that the government typically ignores the Notice of Claim that is served upon it just to see if the aggrieved person will actually file a lawsuit.  It costs very little to file a Notice of Claim (which often is done without the assistance of an attorney) but it is expensive to file a lawsuit.  The government has little to no interest to pay money to someone unless it knows the individual who filed the claim is serious.  Essentially the Notice of Claim statute is a “legal hoop” that the government makes you jump through to see how high you will jump.  There may little to no reason for you to jump, but nontheless, jump you must.

So the City of Milwaukee is arguing that the plaintiff landlords’ didn’t file the Notice prior to filing the lawsuit and therefore their lawsuit should be dismissed.

In its response brief, the plaintiffs argue that a formal notice of claim need not always be served as there are exceptions to this requirement.  The plaintiff landlords rely on a recent Court of Appeals decision, Kuehne v. Burdette, which held that the Notice of Claim statute does not always require a formal notice of claim to be served nor is it always required for a plaintiff to wait 120 days before filing a lawsuit against the government. 

The plaintiff landlords make three key arguements in their brief in opposition to the City’s motion to dismiss:

1.     Because the City’s Rental Inspection Ordinance became law on January 1, 2010 — just 22 days after it was passed by the Common Council —  and because the nature of the lawsuit is to determine whether or not the ordinance is constitutional, the plaintiffs were unable to comply with the notice of claim statute.

2.     The City had actual notice of the claim even if a formal notice of claim was not served on it.

3.     The City sufferred no prejudice as a result of the plaintiffs filing the lawsuit without first filing a formal notice of claim.

The plaintiffs’ first argument is very similar to the one made in the Kuehne case.  In Kuehne, five residents of a town filed an injunction against the Town of Ledgeview in order to prevent it from holding a referendum on whether or not the town should incorporate.  The court in Kuehne stated that the notice of claim statute probably did not apply in the context of the lawsuit because it is illogical that a town can use lack of notice as a defense when the Town by its own actions made compliance with the notice of claim statute impossible. 

The plaintiff landlords argue that the exact same situation in Kuehne is at play in the lawsuit against the City of Milwaukee.  The City adopted the new ordinance and Mayor Barrett signed it into law 22 days later.  If the plaintiffs had been required to file a notice of claim the City would have been under no legal obligation to respond to the notice until approximately May 1, 2010.  By that time the rental inspection ordinance would have been in effect for a minimum of 4 months without a court being allowed to examine the constitutionality of the ordinance.  The City can’t use the notice of claim defense in order to allow it to move forward with its unconstitutional ordinance.

The plaintiffs’ second argument is that they City had actual notice of the claim because the plaintiffs, through the actions of the AASEW, advised the City of its concerns and objections to the proposed ordinance as eary as October 29, 2009.  On October 29th yours truly sent a letter to the Common Council pointing out the various constitutional problems with the ordinance.  Additionally, the AASEW’s attorney (who is also the attorneyfor the plaintiff landlords) also sent a letter to the City Attorney on the same date setting forth the myriad of problems with the proposed ordinance.  Additionally there were numerous communications between the AASEW, its attorneys, and the alderman that sponsored the ordinance (Nic Kovac) and the DNS Commisioner.  So the City had actual notice of the plaintiffs’ claims approximately two months prior to the filing of the lawsuit.  By contrast, in the Kuehne case the plaintiff gave notice to the Town on the same day as the lawsuit was filed and the Court of Appeals found that notice to have been sufficient.

Finally, the plaintiffs argue that the City was not prejudiced by the lack of a formal notice of claim.  If the purpose of the notice requirement is to allow a government entity time to potentially resolve a claim, the fact that the AASEW 9of which the plaintiffs are members) notified the City of the problems with the ordinance and even met to discuss the potential problems, demonstrates that the City had the opportunity to resolve the issue if it wanted to.  In essence the City is arguing that the plaintiff should be required to jump through the legal hoop for the sake of jumping rather than because the jumping serves an actual purpose.

The City was allowed the opportunity to have the last word so it did file a reply brief to the plaintiffs’ brief in oppostion to the motion to dismiss.

I would point out that even if the City should prevail on its motion to dismiss, all that this will do is cause delay.  A notice of claim has already been filed and served on the City (just in case) and another lawsuit will be filed if needed.  So essentially the City’s motion, if successful, will just delay things rather then address the underlying issue –  whether or not the rental inspection ordinance is constitutional as written.

A hearing on the City’s motion to dismiss is scheduled to be heard before Judge Timothy Witkowiak on May 21, 2010 at 9:30 am in room 412 of the Milwaukee County Courthouse.  The hearing, as most legal proceedings are, is open to the public.  For those of you unable to attend, I will provide you with an update hopefully during the week of June 1st after I have returned from my upcoming wedding and honeymoon.

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