Archive for August, 2010

Fair Housing Update: Review of 2010 Fair Housing Trends Report

Aug 31

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination | No Comments

A large segment of my work involves advising landlords and property managers about fair housing laws and counseling them what they can and cannot do in the rental industry with regard to the federal and state fair housing laws and discrimination in general.  As such, I recently took the time to read the National Fair Housing Alliance’s (NFHA) 2010 Fair Housing Trends Report which was published May 26, 2010.  

To provide you with some background on the protected classes and fair housing law in general you may wish to review my July 10th post which discusses the various protected classes or visit Atty. Ron Leshnower’s Fair Housing Blog.

Some of the relevant highlights of the report are below. 

-   In 2009 there were a total of 30,213 fair housing complaints filed.  This is a significantly higher number of complaint than in past years.  It should be noted that all of these complaints do not arise in the context of rental housing — many involve mortgage lending, hosing construction etc.

-   NFHA conservatively estimates that there are over 4 million fair housing violations each year although most of them are never reported.

-   In 2009 H.U.D. (U.S. Dep’t of Housing and Urban Development) and D.O.J. (Department of Justice) charged more fair housing cases than in past years.

-   Private fair housing groups continue to process the highest number of complaints — 19,924 (or 66%) of the total complaint load even though there are fewer private fair housing groups than in prior years. 

-   Since 1999, private non-profit fair housing organizations have processed 186,308 (66%) of the complaints.  By comparison, Fair Housing Assistance Program (FHAP) agencies processed 69,358 complaints (25%), and HUD processed 25,881 (9%) of the cases.

-  People with disabilities continued to be the protected class that is most discriminated against (or at least the most reported) in 2009.  This was also true in 2008.   The report explains that disability complaints remain high for several reasons: (1) HUD has an office devoted solely to disability issues, (2) many apartment owners make direct comments refusing to make reasonable accomodations or modifications for people with disabilities so the discrimination is easier to detect, (3) builders, developers, and architects still continue to design and construct apartment complexes that violate the Accesibility Guidelines, (4) every state has a Protection and Advocacy System and every city has one or more non-profit agencies dedicated to assisting people with cognitive, mental, sensory, and physical disabilities. 

ASIDE:   In a recent article from Milwaukee Magazine’s newsbuzz, disability related discrimination leads the way in Milwaukee also.

-   In 2009, private fair housing groups reported 15, 624 complaints of housing discrimination in the rental market.  FHAP agencies reported 6,464 and HUD reported 1,656.  The report goes on to explain that one reason for the increase in the number of rental market complaints from prior years may be the foreclosure crises — i.e. many tenants were evicted when the owner defaulted on his/her mortgage and many others lost their homes and needed to enter the rental market where they faced discrimination.

-   In 2009, several representatives in Washington introduced bills to extend the protection of the Fair Housing Act to create 2 additional federally protected classes: (1) gender identity, and (2) sexual orientation.

Obviously, more work needs to be done to ensure that landlords are aware of the protected classes and do not engage in discrimination, but as the title of the report says – 2009 was a “step in the right direction.”

ASIDE:  There is a portion of the report that addresses fair housing implications of the foreclosure crisis that is very interesting and worth a read.

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Audits In Milwaukee by HUD Regarding Compliance with Lead-Based Paint Disclosure Laws

Aug 26

Posted by Tristan R. Pettit, Esq. in Lead-Based Paint | 4 Comments

A fellow board member on the Apartment Association of SE Wisconsin forwarded the email below to me and other landlord-tenant attorneys and others in the industry.  It concerns the recent audits of landlords and management companies in the city of Miwlaukee with regard to complying with the federal lead-based paint disclosure laws. 
   
I spoke with a potential client yesterday who was also being audited and had failed to give out the required disclosure forms and pamphlet.
  
The feds seem to have turned up the heat on this issue.
  
Please read the email below and also view my blog post on this topic at
  
 

Subject: Lead based paint warnings
Ladies and gents
 
Our benevolent government is comprised of multitudes of faceless bureaucrats with nothing to do so they dredge up projects to justify their cushy jobs, benefits and pensions.
 
The latest of these to affect our real estate residential industry is that the Dept of Housing and Urban Development (HUD) is auditing landlords to be SURE that they give the required Lead warnings to each incoming tenant.  Thie would include the pamphlets and forms you received from us and are instructed to use.
 
As our buildings were constructed before 1978 (when lead paint was officially banned – even tho nobody used it for years previous), ALL tenants MUST sign the form and get the pamphlet.
 
For EACH failure to provide the form and pamphlet, the fine can reach $11,000.  You can see this could add up to real money real fast.
 
I urge you to check your files and be SURE the lead form is there for each tenant.  Those of you who send your leases to the office usually do not send the Lead form which is usually not necessary for tenant management, but it is vital that the forms are available for one of these audits.
 
Today the audits are in the City of Milwaukee.  A friend of mine was just audited and the HUD guy was there 3 hours and made many copies of stuff.   My friend has about 300 units in Milwaukee. They could audit anywhere next.
 
We will be checking with each of you in the near future to check on this.
 
This is serious.  Do not fail.
 
 
Please take heed of this and make sure you are in compliance — the penalties are huge and can easily put a landlord out of business.
 
 

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EXECUTION OF WRIT: Part 2 – The Details

Aug 17

Posted by Tristan R. Pettit, Esq. in Evictions, Execution of Writ, Milwaukee County | No Comments

Last week I provided some basic information about what is involved in the execution of a writ of restitution (eviction) and how the process works.  With this week’s post I wanted to provide everyone with some additional — more detailed — information about the execution process.  I attempted to group these tidbits of info by category.  Much of the information below is specific to Milwaukee County and the Milwaukee County eviction squad.

General

-  The applicable Wisconsin Statute regarding executing a writ is 799.45, Wis. Stats.

-   Milwaukee County Eviction Squad’s phone number is (414) 278-5030. 

-   A typical eviction move-out takes 1 hour.

-   Approximately 15-20 evictions are performed per day.

-   There is both a 1st and a 2nd shift that performs evictions.  The 1st shift arrives at the office around 7 am.  The 2nd shift works until 8 pm.

-   The landlord should alert the Sheriff if any of the following apply: (1) the tenant has mental health issues, (2) there are dangerous dogs residing in the unit, (3) the tenants are believed to be involved with drug dealing, (4) there are guns on the property, (5) the tenant is elderly and/or disabled and has no place to move to or family to assist him/her.

The reason that the Sheriff wants to be notified of (1) – (4) is for the Sheriff’s own safety.  If there is a mentally unstable tenant, dogs, drugs, guns, or some other factor that might result in the increased risk of injury, the Sheriff wants to be notified of this in advance so that they can have back-up near by.  The execution of a writ can be very dangerous.  Tenants who are being displaced from their homes are often emotional (understandably so).  I have heard of Sheriff’s deputies being injured and even killed while performing an eviction.  If a landlord has any inkling that there could be issues during the eviction this should be communicated to the Sheriff’s Department.

The reason that the Sheriff wants to be notified of (5) (if the tenant is elderly and/or disabled and has no family to assist or place to move to) is because the Sheriff will then contact the Department of Aging or a social service agency prior to the eviction so that someone can be on hand to assist the elderly and/or disabled person in locating a safe place.

The best way to notify the Sheriff of any of the above conditions is to attach a note to the paperwork that you are filing with the Sheriff.  This way the clerk can pass that note along to the eviction squad along with the Writ.

-   After the tenant’s property has been removed, the tenant and any other individuals living in the unit will be escorted out of the unit.  The Sheriff will put a placard on the door.  If the tenant returns and enters the unit after the eviction has occurred the police should be called.  The Sheriff cannot make a tenant leave the apartment complex or neighborhood as the Sheriff only has the authority to remove the tenant from the unit.  

Eviction Route

-   The eviction squad performs all evictions on the south side of Milwaukee first and then they move to the north side.

Notification To Landlord

-   The Sheriff will do its best to notify the landlord of the date and time for the eviction on three different occassions: (1) the night before the eviction is scheduled, (2) at 7:30 a.m. the morning of the scheduled eviction, and (3) as they are driving to the property to perform the eviction.

Moving Companies

-   Certain moving companies are used only on certain days of the week in Milwaukee County.  So a landlord does have some control over what day of the week his/her eviction will occur by choosing who to hire as the moving company.  If Eagle Movers has been retained then the Sheriff will schedule the eviction for Monday, Wednesday, or Friday.  If Aetna Movers are hired then the eviction will occur on a Tuesday.  If Dweyer Movers (owned by Eagle Movers) are used then the eviction will be on a Thursday.  Wednesdays are reserved for JC Triplett.

Appliances

-   If the landlord provides appliances with his/her rental unit then the landlord should notify the Sheriff of this.  The landlord should also provide the Sheriff with information about the type of appliances, manufacturer, color etc.  If the Sheriff is not advised of this information and the tenant tells the moving company that the appliances are his/hers, there is little the Sheriff can do to prevent this type of theft.

Storage Lockers

-   If the tenant has property stored in a storage locker which needs to be removed, the Sheriff needs to be told of this.  If the landlord does not know which storage locker is the tenant’s, the Sheriff will not remove any items from any of the lockers as they could be held responsible if they remove items from the wrong storage locker.

Tenant’s Personal Property

-   The Sheriff has the authority to decide what of the tenant’s belongings are of no value (junk) and what is valuable and should be packed and moved to storage.

-   Neither the Sheriff nor the moving company will remove a tenant’s clothing.  This rule is in place for safety reasons because in the past the Sheriff/movers were stuck by needles that were left in clothing.

-   Only large items will be removed.  Smaller items will be left in the unit for the landlord to remove. 

-   If the tenant’s property is infested with roaches, bed bugs, or some other critter, the items will NOT be moved.  Moldy items will also not be placed into the moving truck.  The moving companies do not want to help spread these infestations throughout the city so the removal of such property will be left to the landlord.

-   Once the Sheriff determines what is junk/garbage, the landlord then has a choice to either leave the junk in the property (which the landlord can then remove later) or have the moving company haul everything to the curve (which the moving company will charge the landlord for doing).

-   If a tenant is present, and his/her property is determiend to be of value, the tenant is given a choice as to what should be done with his/her belongings.  The property can be moved and placed into storage (which the tenant will then be required to pay for if s/he wants the possessions back) or the tenant can opt to have his/her property placed at the curb (for the tenant to remove).

-   If a tenant’s personal property is going to be placed into storage, the moving company must put the property into boxes, which the landlord will pay for.  While it is frustrating for the landlord to have to pay for boxes to house the tenant’s property, the moving company cannot just throw the tenant’s belongings haphazardly into the back of the truck for many reasons (safety and liability are two that come to mind).  The property will also be inventoried.

Liability for Execution of Void Writ

-   The Sheriff will be liable to the tenant for any damages resulting from the execution of a writ that was given to the Sheriff  beyond the 30 day period.  The Sheriff will also be liable for any resulting damages if the Sheriff executes a writ beyond the 10 day period.  Wolfe-Lille v. Kenosha County Sheriff, 699 F. 2d 864 (7th Cir. 1983).

Cancellation of Writ

-   Landlord must have the docket number that was giving at the time that the paperwork was filed with the Sheriff, in order to cancel an eviction.  Only the Sheriff and the landlord are given the docket number.  The tenant should NEVER be given the docket number or else s/he could cancel their own eviction.

-   If a landlord cancels an eviction, the Sheriff discards the paperwork.  As a result, a landlord cannot “un-cancel” an execution of the writ.  A landlord should never cancel the eviction with the Sheriff unless they are certain that the tenant has vacated.

Costs of Execution

-   The Sheriff charges $112.50 per hour for their time in executing a writ.

-   The total cost to execute the writ will be based on the actual hours expended by the Sheriff.  The costs will be taken out of the $130 deposit that was previously posted.  Any remaining monies will be returned to the landlord within 4-8 weeks.  If the total cost exceeds the $130 deposit, the Sheriff will send a bill for the overage.

-   The cost of the Sheriff and the moving company are all chargeable to the landlord.  However these costs will be taxed and added to any money judgment that the landlord pursues against the tenant  – whether or not the judgment is collectible, is a whole different issue.

-   The only costs that are the truly the responsibility of the tenant (aside from if the landlord obtains a judgment against the tenant and actually collects on it) are the costs incurred for the storage of the tenant’s belongings after the delivery of the property to the storage facility.

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EXECUTION OF WRIT: Part 1 – The Basics

Aug 12

Posted by Tristan R. Pettit, Esq. in Evictions, Execution of Writ, Milwaukee County | 13 Comments

I have noticed a trend in the last several months of more and more tenants refusing to leave a landlord’s rental property even after the landlord has obtained a judgment of eviction against the tenant and been issued a Writ of Restitution (“writ”).  As a result of this trend more and more landlords are being forced to go through the process of having the writ executed.  The execution of the writ is the process whereby the Sheriff actually removes the non-vacating tenant and returns possession of the property to the landlord.

Background Information:

Most eviction lawsuits have 3 causes of action or claims.  The first cause of action is for return of the rental property.  This is often referred to as the “eviction” portion and in Milwaukee County it is called the “1st cause of action.”  The 2nd and 3rd causes of action have to do with the money that the tenant might owe the landlord.  The 2nd cause refers to the past due rent that may be owed and the 3rd cause refers to any claims for physical damages to the unit and/or holdover damages.  Together the 2nd and 3rd causes of action are often referred to as the “money claims.”

This post will focus on the 1st cause of action generally, and specifically, on what a landlord must do s/he has been granted a judgment of eviction and received a writ of restitution but the tenant continues to reside in the unit. 

A landlord typically obtains a judgment of eviction (and the ensuing writ) in one of three ways.  First, the tenant fails to show for court and the landlord is granted a default judgment.  Second, the tenant appears in court and contests the eviction thus necessitating an eviction trial before a judge.  Assuming the landlord proves his/her case, the landlord obtains a judgment of eviction and is issued a writ.  Third, the tenant appears in court and admits that they are in breach of the lease and the court commissioner or judge grants a judgment of eviction against the tenant based on his/her admission and issues a writ.

Many landlords mistakenly believe that after they obtain a judgment of eviction and a writ that they can then change the locks and toss out the tenants personal property if the tenant fails to leave.  DO NOT DO THIS.  If the tenant fails to vacate the unit, even after there has been a judgment and a writ issued, the only legal way to remove the tenant is to hire the Sheriff and to have the writ executed (sec. 799.45, Wis. Stats.)  If a landlord attempts to illegally evict a tenant (also referred to as a ”self-help” eviction) th elandlord is openeing himself/herself up to either civil or criminal liability, or both.  The tenant can sue the landlord that engaged in a self-help eviction for double damages and attorney fees.  While it may seem “unfair” to require the landlord to expend more time and money after s/he has already obtained a judgment of eviction against a non paying tenant, that is what the law requires.

The Writ of Restitution:

Along with obtaining a judgement of eviction comes the issuance of a Writ of Restitution (writ).  A writ is a document that orders the Sheriff to evict the tenant and anyone else that has occupancy of the rental unit.  The writ also contains additional information that will assist the Sheriff in executing the writ, such as the name and address and phone number of the landlord, the landlord’s attorney, and the defendant/tenant.

In Milwaukee County the court does not give you a writ.  Instead the court gives you an Authorization for Writ.  The landlord must then take that Authorization to the Clerk of Courts and pay $5 in order to obtain the actual writ.  The landlord must then complete the writ and tender it to the Sheriff. 

Each county handles the distribution of the writ differently.  In Waukesha County (at least last time I was there) a landlord is required to return to court the following day to obtain the writ and pay the fee.  The Clerk completes the writ for you in Waukesha.  In Racine County, a landlord should pick up a blank writ from the Clerk of Courts before court, complete all the requested information on the writ, and then present it to the judge when the case is called and the judge will sign the writ.  No fee is required in Racine County.  In Kenosha County, a landlord must go to the Clerk of Courts after court and pay $5 and the Clerk will then complete the writ for you and hand it to you.  It is advisable to talk to the Clerk of Courts in whatever county you own rental property about the process of obtaining the writ before you appear in court.

A writ is only valid for 30 days.  If a landlord does not tender the writ to the Sheriff within the 30 day period the writ will expire and the landlord will need to start the entire eviction process over again in order to remove a tenant that is still residing in the property.  Yep, you heard me correctly.  If the landlord lets the writ expire, the landlord will need to serve the tenant with a new notice, purchase a new summons and have it filed and served on the tenant, appear in court again etc. etc.  Do not let the writ expire!  New landlords (or landlords with no previous eviction experience) should not let a tenant dupe them into not filing the writ with the Sheriff within the 30 day period.  Tenants may tell you that they just need 10 more days, and then another 5 days, and then 3 more days and they will be out, etc. etc.  If all those extra days add up to 30 – the landlord has only himself/herself to blame. 

Executing The Writ:

In Milwaukee County, only the Sheriff can legally execute the writ.  Before the Sheriff will do this however the landlord must hire a moving company.  The landlord must obtain a Letter of Authority from a licensed and bonded moving company and in return the landlord will have to shell out a refundable deposit of approximately $350 to the movers.

Once the landlord has engaged the services of a moving company the landlord should go to the Sheriff’s Department for Milwaukee County and bring along the following items:

1.  The Authorization for Writ

2.  The fully completed Writ of Restitution

3.  $130 deposit to give to the Sheriff

4.  A set of keys to the unit to give to the Sheriff.

By law, once the writ has been delivered to the Sheriff, the Sheriff must execute the writ within the next 10 days (sec. 799.45(5), Wis. Stats.)  Due to the large amount of evictions in Milwaukee, it typically takes the Sheriff the full 10 days.  Oftentimes the Milwaukee County Sheriff will mail the tenant a 24 hour notice the day before the planned eviction to give them one last chance to leave on his/her own.  This notice is not legally required and so it is irrelevant if the Sheriff does not do it for every eviction.  Think of it as a courtesy.

If the tenant still has personal property in the rental unit when the Sheriff arrives to execute the writ ,the Sheriff will then determine what of the tenant’s personal property should be stored by the moving company and what property is considered to have no value and can be disposed of.  After the tenant’s personal property has been dealt with, and if the tenant is still residing in the property, the Sheriff will direct the tenant — and any others residing in the unit — out of the unit and insure that the unit is secure.  If the tenant refuses to leave the unit, s/he will be arrested for Disorderly Conduct.  It should be noted that the Sheriff can make the tenant leave the specific rental unit but cannot make the tenant leave the apartment building or complex.  If the tenant refuses to leave the building then the landlord must call the police.

It is helpful if the landlord or his agent can be present during the eviction to answer any questions that the Sheriff or moving company may have.  I have heard of one instance where a tenant told the Sheriff that the refirgerator and stove in the unit were purchased by the tenant and were his.  This was not the truth.  The landlord was not present during the eviction however to refute the tenant (or to produce the rental agreement to the Sheriff which would have shown that the landord supplied a refrigerator and stove along with the rental) and the appliances were taken off to storage.  The landlord had a difficult time retrieving his property and had to pay a storage fee to get the appliances back.

In smaller counties — those with a population of less than 500,000 – a landlord is allowed to remove, store, and dispose of a tenant’s property himself/herself and the only role that the Sheriff performs is to supervise the landlord.  I have not had any experience with this type of eviction, so I can not provide yu with any more information other than this option is legally available to landlords who own rental property outside of Milwaukee County.

Next week I will blog on some of the smaller details involved with executing a writ that will assist you in the process.

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FREE Seminar on Evictions – Saturday, August 14th

Aug 4

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, Seminars | 2 Comments

I will be presenting a free seminar on the topic of evictions for the City of Milwaukee’s Landlord Training Program on Saturday, August 14th.  I am presenting this seminar on behalf of the Apartment Association of Southeastern Wisconsin (AASEW). 

The Seminar will run from 9 am – 12 noon and will be held at Alverno College’s Wehr Theater which is located at 3441 S. 39th Street.  I was informed that there is a parking lot located at 40th & Morgan for attendees to use.

I will cover three topics:

1.   Causes for Evictions – I will explain the different types of notices that can be served on a tenant and explain under what circumstances you should use the different notices)

2.   Notices Terminating Tenancy - I will explain what must be included in a proper notice and how to properly serve a notice), and

3.   The Judicial Eviction Process  – I will cover the “nuts and bolts” of what you must do to file an eviction lawsuit and what to expect once you arrive in court).

The attendees will receive copies of my detailed outlines on the above topics plus examples of various forms.

If you are interested in attending the seminar you must register in advance by calling (414) 286-2954 or email jhagne@milwaukee.gov.

Hope to see you there!

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