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.
#1 by John (Dr Rent) Fischer on August 13th, 2010
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In Marathon County, you can get the writ by paying $5 immediately after the case is heard, you need to fill in the address and they do the rest. The sheriff charges $100 for execution of the writ (raised from $65 earlier this year).
If the writ expires here, you only need to pay the $5 to get it re-issued.
It is a shame the landlord can’t take care of the property left behind in Milwaukee County. Unless the unit is full of high dollar value items, it is really the only way to go.
I still remember my first ever eviction 16 years ago, I was a part time admin assistant and was brought along to observe and learn. The tenant’s were refusing to leave and they ended up being handcuffed around a tree in the front yard while the moving company packed up their stuff.
#2 by Tristan R. Pettit, Esq. on August 13th, 2010
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Wow – just having to pay $5 to “re-up” a writ, would be nice.
That was quite an introduction to the execution process, I bet — never seen the tenants handcuffed – yet alon handcuffed around a tree.
Thanks for the info, John
#3 by Cheryl on November 30th, 2010
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Thank you for posting this useful information…. one question, you wrote….
“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.”
Do you have any documents that address this??? My mother is a great landlord, and one tenant has refused to leave and my mother cannot afford the available storage companies… She resides in Racine County, think the pop. is around 100,000.
Thanks so much, hope to hear back from you.
-Cheryl
#4 by Tristan R. Pettit, Esq. on December 2nd, 2010
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Hi Cheryl – Thanks for your support and for your question. You will want to look at sec. 799.45 of the Wisconsin Statutes — specifically (3).
T
#5 by Tony Adams on March 18th, 2011
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If a tenant has taken out 90% of all clothes, 99% of all cookware, 95% of food, left a set of keys on the kitchen table, a couple of bags of junk but still has a bed, an empty dresser, a couch and a couple of tables with some canned food on them, the stove is gone but not the fridge would you consider the apartment vacant? I found this after the court date which she was a no show.
Many thanks
PS how much do you charge for an eviction with process serving.
#6 by Tristan R. Pettit, Esq. on March 21st, 2011
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Tony — Thanks you for your questions. Please understand that I cannot give legal advice via this blog.
I can provide you with some general information however. There is not “clear cut” definition of when a tenant surrenders a rental unit — it runs along a continuem. On one end of the continuem would be the sitaution when a tenant has verbally and in writing indicatied that they will vacate your rental unit by X, they turn in their keys to you and they have removed all personal belongings. On the other end of the continuam is situation where a tenant has disappeared in the middle of the night, has not told you that they will be vacating the rental unit, has not returned the keys to you, and has left all of their belongings in the unit.
There are a multitude of factual scenarios somewhere in between.
The fact that in your situation the tenant left the keys for you — is a good sign that the tenant has vacated. To be extra sure, and to cya, you may want to call the tenant and confirm that they have vacated the unit, and then memorialize that conversation in writing by sending a follow up letter to the tenant summarizing your telephone discussion. During that telephone call you should also ask the tenant if they have abandoned the property that was left behind. The tenant’s response should also be memorialized in the letter.
The key here is to do your best to show that you made adequate attempts to determine that the tenant vacated the unit.
In the absence of a provision in your lease regarding abandoned property, you should review the statutory provisions regarding abandoned property outlined in Wis. Stat. sec. 704.05(5).
Please feel free to give me a call at 414-276-2850 with regard to your other question.
Thanks
T
#7 by Linda on July 3rd, 2011
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Does anyone know if in the City of Milwaukee I’m allowed to ask a tenant that I’m trying to evict (they got the 14 day notice and have not moved, I have to go to the Court House in the next few days) to not park in the spots that are provided for the building? They have no agreement as they can’t find what they had. I bought the house from a bank. It was in foreclosure. The management company — I contacted them several times — never gave me copies of anything. I’d like to let the paying tenants park in the spots.
#8 by Tristan R. Pettit, Esq. on July 5th, 2011
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Linda – If the tenants are not allowed to park in the parking spot then that would be a brach of their rental agreement and you could give a notice for same. Since you already ahve an eviction action pending it may be a non-issue. If you have the proper signage regarding trespassing and no parking then you shoud call the city and they may tow the tenant that is improperly parked.
If the tenant has an agreement allowing them to park in the parking spots and you would just prefer that they didnt because they are behind in rent – then practically speaking there is little you can do until they are evicted and removed or vacate on their own.
#9 by Tom on October 4th, 2011
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I want to file papers with the Court in Ozaukee County so they have a record in the event my tenant does not leave if/when I evict him/her for failure to pay rent.
Where do I get the papers and where do I send them?
#10 by Tristan R. Pettit, Esq. on October 4th, 2011
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Tom — No court will allow you to file paperwork with then if a lawsuit has not been filed. So you can’t file paperwork with Ozaukee Court until a lawsuit has been filed. I’m assuming the paperwork that you are referring to is the notice that you sent your tenant. If so, the proper way to handle this would be to save the notice and if the tenant doesn’t vacate then purchase the small claims eviciton summons from the Clerk of Courts and attatch the notice as an exhibit to the lawsuit or bring it with you to the return date to file with the court at that time. Since your notice is the basis for your eviciton lawsuit it will need to be filed with the court but they wont take it from you unless there is a lawsuit filed otherwise they would have not place to file it.
If you dont have the notice paperwork I would suggest you go to Wisconisn Legal Blank Company, Inc. they are in the phone book and they sell all of the different notices that are allowed to be served in Wisconsin residential matters. The eviction paperwork can be obtained by the clerk of courts in Ozaukee County.
I might suggest that if you don’t handle evictions regularly that you contact an attorney or another landlrod that is familiar with the process so that you don’t make any mistakes which might later cause your eviction to be dismissed.
#11 by Tom on October 4th, 2011
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Thank you.
#12 by Rachel on January 30th, 2012
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The landlord and I (tenant) appeared at an eviction hearing and entered into a voluntary order to vacate by 5 pm on a specific date. I was in the process of moving out on that date and would have needed an extra half hour to finish removing all of my belonging. The landlord showed up at 5 pm sharp and changed the locks. I called the local police to get help but he showed them the voluntary order to vacate, they believed him and locked me out. He had no writ, no sheriff present, nothing. He conducted a “self-help” eviction. 4 days later he went to the court house to have a writ issued. I don’t live there anymore nor have had access to the property in days. What is my recourse, most lawyers I have spoken to have never even heard of this level of stupidity?
#13 by Tristan R. Pettit, Esq. on January 30th, 2012
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Rachel — I cannot give legal advice via this blog. Depending on the specific facts the landlord may have violated ATCP 134. so if you sufferred damages as a result you may want to consider retaining an attorney.