Archive for October, 2010

Self-Help Evictions (or Why You Should Not Remove The Roof In An Attempt To Evict Your Tenant)

Oct 29

Posted by Tristan R. Pettit, Esq. in ATCP 134, Evictions, Self-Help Evictions | No Comments

I apologize for the delay in drafting a new post but this has been a crazy week with two trials in the early part of the week and another one tomorrow  (all tenants fighting evictions and none of these trials have been or will be easy).  But enough with the excuses . . .

I saw a recent article about a landlord in Lusaka, Zambia (Africa) that actually attempted to evict his tenants by physically removing the roof (which was made of iron sheets) to the home.  The article states that the landlord “may not have followed the proper procedures to evict the tenant.”  No kidding . . . . really, I’m sure it would be illegal to remove the roof to a rental unit in order to evict a tenant in any country (but I am just guessing).

I’m certainly no expert in Zambian landlord-tenant law but I do know that in Wisconsin, if a landlord tried attempted to evict a tenant by removing the roof to the rental property, that the landlord would be opening himself/herself up to liability for engaging in what is commonly referred to as “self-help eviction.”

Self-help eviction is a genreal term that refers to any attempt to remove a tenant from a rental property other than through the judicial eviction process and the use of the Sheriff.

In Wisconsin, the only way to legally remove a tenant (that refuses to leave) is through the judicial eviction process.  Once the landlord obtains a judgment of eviction and is issued the writ of restitution, should the tenant still fail to vacate the unit, the only legal avenue that the landlord has to reclaim his/her real estate in Milwaukee County is to execute the writ with the Sheriff.

Yes, you heard me correctly! Even if the court has ordered the tenant out of the rental unit, and the tenant intentionally ignore the court’s order, the landlord still cannot force the tenant out of his/her property.  The landlord must engage the services of the Sheriff to forcibly evict the tenant.

It is illegal in Wisconsin for a landlord to engage in self-help eviction.  Examples of self-help eviction would include the following:

1.   Changing the locks to the rental unit.

2.   Cutting off all utilities to the unit.

3.   Removing the outside door to the rental unit.

4.   Taking all of the tenant’s belongings and putting them out on the curb.

5.   Harassing the tenant in order to make them leave.

6.  Removing the roof to the rental unit . . .

Wisconsin Administrative Code, ATCP 134.09(7), entitled Prohibited Practices, states that, “No landlord may exclude, forcibly evict or constructively evict a tenant from a dwelling unit, other than by an eviction procedure specified under ch. 799, Wis. Stats.”

ATCP 134.08 (1), which lists prohibited rental provisions, also prohibits a landlord from including a clause in his or her rental agreement that authorizes the eviction of a tenant from a unit other than by the judicial eviction proceeding set forth in Ch. 799, Wis. Stats.

Many municipalities, such as Milwaukee and Madision, also have local ordinance that also prohibit self-help evictions.

While Chapter 704 of the Wisconsin Statutes does not specifically prohibit non-judicial forms of eviction, its legislative history states that the procedures for eviction set forth in Ch. 704 and Ch. 799 (Small Claims Procedure) are the exclusive means of conducting an eviction.

I believe (and hope) that most landlords understand that they cannot forcibly remove a tenant from a rental unit on their own.  I think that most landlords no that if a tenant will not leave voluntarily that they must file an eviction lawsuit against the tenant.  What I think many landlords do not understand however, is that after they have filed the eviction and obtained a judgement of eviction ordering the tenant to vacate the rental property, that if the tenant still refuses to leave, that the only legal avenue the landlord has is to execute the writ of restitution with the Sheriff.  This understandably upsets landlords because it results in additional time, delay and money.  In Milwaukee County it costs $125 to hire the Sheriff to evict the tenant and requires the posting of approximately $350 with a moving company. 

Despite this additional cost and aggravation, this is the law in Wisconsin.  I would alert any landlord that is thinking of skipping this part of the eviction process, and resort to self-help, to strongly reconsider.

The penalties for engaging in a self help eviction are sever.  A violation of ATCP 134, which precludes self-help eviction, allows the tenant to sue the landlord for double his/her damages and recover his/her attorney’s fees.

So if you find yourself on the wrong end of a lawsuit for self-help eviction you could end up paying the tenant’s damages times two, the tenant’s attorney’s fees, all associated court costs, along with your own attorney’s fees.  Trust me, I have defended several landlords in lawsuits alleging self-help eviction and the outcome can be very expensive.  Even if the landlord prevails in the end and a judge or jury decides that there was no self-help eviction, the costs in time and attorney’s fees to defend against the lawsuit can be substantial.  Don’t risk it.

I always encourage my clients to error on the side of caution.  If you are unsure whether or not a tenant has vacated the unit then you should file an eviction lawsuit and retain the services of the Sheriff to return the property back to you.  If you use the Sheriff’s services and the Sheriff removes the tenant, or otherwise determines that the unit has been abandoned, should a tenant later decide to file a lawsuit for illegal eviction s/he will need to sue the Sheriff, not the landlord.  Using the Sheriff is a big CYA.

So the moral of this blog post is simple — if you want your tenant to leave your rental property you should not remove the roof of the rental unit : )

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Some of The Best Bedbug Information That I Have Read To Date

Oct 18

Posted by Tristan R. Pettit, Esq. in Bedbugs | 3 Comments

If my crystal ball is correct we will be seing a large uptick in litigation regarding bedbugs in the future — both tenants suing landlords for not dealing with the bedbug infestations and landlords suing tenants for bringing the critters into the landord’s property.  There have already been lots of lawsuits regarding bedbugs, many of which I have touched on in a prior blog post.  If you need some basic information on bedbugs please refer to my first post which includes a very good Powerpoint presentation from Giertsen Company of Wisconsin on bedbugs and how to control and eradicate an infestation.

In my continuing quest to learn more about theses pests  — yes, it is true I do not have any children yet, so I have some extra time on my hands : ) —-  I came across some articles about bedbugs that were written by Dini M. Miller, Ph.D. from Virginia Tech’s Department of Entomology, which are extremely thorough and answered many questions that I had on the topic but could not find answers to in other publications.

The one question I can still not find the answer to is what is the proper spelling of bedbugs — is it bed bug or bedbug???

Dr. Miller’s articles include:

1.   How To Identify Bed Bug Infestations

This article addresses what bedbugs look like during the different phases of their lives, what a bedbug’s molted skin looks like, where you can find molted skin in your home, how to identify a bedbug’s fecal spots (yeah, lets just call it what it is — poop), where to look for the poop, and how to identify bed bug aggregations (i.e. get togethers, pow-wows, parties, family reunions, shin-digs etc. ).

2.   Bed Bug Prevention Methods

This article contains some great information on how to prevent bringing bedbugs home with you when you are traveling.  Specific tips are given on how to inspect a hotel room before you sleep there and how to prevent bedbugs from crawling into your luggage.  I guess I will never be unpacking my clothes from my suitcase during a trip again.  The article also addresses why you should avoid used furniture.  Visitors to your home may have these little hitchhikers on them and Dr. Miller addresses this issue and what you can do to minimize this from happeneing aside from becoming a recluse and not allowing anyone to visit you ever again.  The article talks about encountering bedbugs at laundromats and at the workplace. 

3.   Bed Bug Biology and Behavior

Learn everything that you ever wanted to know about bedbugs’ feeding, mating behavior, egg production, nymph development time, and an adult bedbug’s life span.  Did you know that a bedbug must take a meal before it can molt and enter the next phase of its life?

4.   Bed Bug Treatment Using Insecticides

I was disheartened to read there is no labeled insecticide product that is capable of eliminating a bed bug infestation on its own.  In order to kill an infestation, they must be attacked from many angles with many different products or devices.  This article discusses (1) liquid insecticide sprays, (2) areosol insecticide sprays, (3) insecticidal dusts,  (4) insect growth regulators (IGR’s), and (5) repellants.

5.   Non-Chemical Bed Bug Management

Dr. Miller addresses the topics of removing clutter, using dissolvable laundry bags, using bed bug detectors (The ClimbUp device), vacuuming, steam, pressurized carbon dioxide snow, diatomaceous earth, mattress encasements, and heating systems (the gold standard) to assist in the eradication of bed bugs.

6.   Bed Bug Action Plan For Apartments

It is reccomended that all apartment staff receive bedbug training so that they will know how to identify a bed bug infestation and how to respond to any complaints of bedbugs from tenants.   Also addressed is how to establish a community-wide bed bug awareness program and the need to overcome the stigma of bed bugs in order to deal with the widespread infestations throughout the country.  Dr. Miller also gives suggestions on how to respond to a complaint of a bed bugs from a tenant living in a multi-unit apartment complex and what to expect regarding control of the problem.  Also discussed are the roles that adjacent units and vacant units will play in an infestation in a large apartment complex.

7.   Bed Bug Action Plan For Hotels

While this article specificallly addresses bed bugs and hotels, many of the suggested plans that are discussed could apply equally well to apartment complexes.  Dr. Miller discusses what to do when you receive a complaint of bedbugs, what to do when you suspect a room is infested, how to treat the rooms adjacent to an infested room, and what to do with employee areas.

If you are interested in learning more about all things bedbug, or if you are dealing with a bedbug infestation personally, I would highly reccomed these articles by Dr. Miler.  I have read lots of information on bed bugs over the past year and these articles are some of the best that I have encountered.

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Upcoming Landlord-Tenant Law Seminar on Nov. 3rd.

Oct 14

Posted by Tristan R. Pettit, Esq. in Seminars | No Comments

I will be co-presenting a landlord-tenant law seminar for Sterling Education Services (S.E.S.) on Wednesday, November 3, 2010.

The seminar is entitled “8th Annual Landlord-Tenant Law Update“ and will run from 8:30 am – 4:30 pm.  Registration will open at 8 am.  The seminar will be held at The Residence Inn Downtown which is located at 648 N. Plankinton Avenue in Milwaukee.

I will be speaking on three main topics:

1.   Screening & Qualifying Prospective Tenants

2.   Rental Documents

3.   The Judicial Eviction Process

Other topics that will be covered by my co-presenters include:

- Terminating a Tenancy

- Bankruptcy and Collection Issues

- “Green” Building and “Green” Leases

- Ethical Considerations in Landlord-Tenant Law

My co-presenters include: Attorney Richard Check of Richard A. Check S.C., Attorney Brian Schuk of Wassel, Harvey & Schuk LLP, and Attorney Matt Fortney of Quarles & Brady LLP.

Cost is $319 per person and includes a manual complete with the presenters outlines and additional handouts and forms.  If you mention that you are a friend of mine, SES will give you a $50 discount — $269.

This seminar would be perfect for landlords, property mangers, realtors and attorneys.  CLE credits have been applied for both Wisconsin and Illinois as have BOMI credits and CPE credits

To register please contact Sterling Education Services at (715) 855-0498 or www.sterlingeducation.com.  The seminar registration number is 10WI11245.

Here is a link to a PDF of the brochure that was sent out.

Hope to see you there.

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New Rental Agreement for Self-Service Storage Units Now Available at Wisconsin Legal Blank

Oct 11

Posted by Tristan R. Pettit, Esq. in Rental Agreements, Rental Documents, Self-Service Storage Units | No Comments

I have recently drafted a Self-Service Storage Unit Rental Agreement that is now available and being sold at Wisconsin Legal Blank Co., Inc.  Additionally I have drafted two seperate default notices that should be sent to the tenant who has breached the rental agreement for the self-service storage unit.  The two default notices contain differernt language as required per Wisconsin’s new law regarding self-service storage facilities and units.

Self-service storage facilities in Wisconsin are governed by sec. 704.90, Wis. Stats., which is the chapter that deals with landlord tenant relationships.  While a self-service storage unit involves a landlord tenant relationship, the laws governing these facilities and units is very different than the laws governing an apartment unit or other rental property.

Sec. 704.90 is specific to self-service storage facilities and units.  It does not apply to storage units that are incidental to the rental of a apartment unit.  For example, sec. 704.90 (and the new forms that I have drafted) would not be used if a tenant is renting an apartment unit that includes the use of a storage unit in the basement.

The laws regarding self-service storage units were significantly changed by 2009 Wisconsin Act 380 (2009 Assembly Bill 707) which is the reason that I decided to draft the new rental agreement and notice of default forms.

Some of the changes in the new law include the following:

1.     The new law makes current statutory provisions governing self-service storage facilities also apply to self-service storage units.  A self-service storage units include a box, shipping container, or trailer that is leased by a tenent primarily for use as a storage space whether the unit is located at a facility owned or operated by the owner or at a locations designated by the tenant.  This change in the law was made to address the new PODS type units that are being leased to people who store the units off-site from the self-service storage facility.

2.   The new law requires that if a self-service storage facility rental agreement includes a provision that limits the value of the property stored, that the clause must be printed in bold or underlined type of the same size as the rest of the agreement.  The limit listed in any agreement is presumed to be the maximum value of the property stored in the unit.

3.     After the termination of the rental agreement, an owenr may deny the tenant access to the personal property remaining in the leased space until the tenant redeems the property by paying the owner any rent and other charges that are due. 

4.   The owner may sell the property after providing two notices to the tenant, and if the tenant does not redeem the property within fourteen days after the date of the second notice. 

5.   The new law provides that the second notice of default may be sent via certified mail or by first class mail with a certificate of mailing.

6.   If the tenant does not redeem the property, then an owner who wishes to sell the property, must publish an advertisement of the sale once a week for two consecutive weeks in a newspaper of general circulation where the self-service storage facility is located.

6.     The new law eliminates the old requirement that an owner’s advertisement of the sale of the abandoned property include the nubler of the space where the property was located.

7.     The old law required that any sale of the abandoned property be conducted in a “commercially reasonable manner.”  The new law states that the sale must meet one of the following requirements: (a) the property is offerred as a single parcel or multiple parcels at a public sale attended by three or more bidders, (b) the property has been offerred to at least three persons who deal with the type of personal property offerred for sale and is sold in a provate transaction, or (c) the property is sold in another manner that is commercially reasonable.

8.   The new law allows the owner or operator of the self-service storage facility to do the following with the property if they do not want to sell the property, if the value of the property is less than $100 and proper notice is provided: (a) donate it to a non-profit organization, (b) dispose of it in a solid waste facility, (c) recycle it, (d) remove it in another reasonable manner.

9.   The old law allowed “any person” to bring a civil lawsuit for a violation of the self-service storage facility laws — this resulted in a very well known 2008 lawsuit entitled Cook v. Public Storage Inc., in which the owner/operator was sued by the parents of a tenant, who happened to also store some of their belongings in the tenant’s self-service storage units.  The new law allows only the “lessee” (tenant) to bring such a lawsuit.

For those of you owning and operating self-service storage facilties and units I hope the new rental agrrement, Notice of Default #1, and Notice of Default #2, prove helpful in assisting that you follow the applicable laws.

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Business Journal Article Addresses Fallout of the City’s RRI Ordinance To Date

Oct 7

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, DNS, Residential Rental Inspection (RRI) Program / Mandatory Rental Inspections / Landlord Licensing | 1 Comment

I was recently interviewed by Business Journal reporter Sean Ryan regarding the fallout of the dismissal of three landlords’ lawsuit against the City of Milwaukee regarding the unconstitutionality of its Residential Rental Inspection (RRI) program.  My most recent post on the subject can be read here.

On October 1, 2010, The Business Journal published  its article entitled “Judge Upholds Milwaukee Home Inspection Program.  Reporter Sean Ryan spoke with the primary plaintiff, Joseph Peters, Alderman Nik Kovac (sponsor of the ordinance), Todd Weiler (of the Department of Neighborhood Services) and myself for the article.

I found Mr. Weiler’s comments to be very noteworthy.  He was quoted as saying that to date DNS has inspected over 800 properties in the two target areas (Lindsey Heights on the north side and the UWM-area on the east) and that during those inspections 8,550 violations were found.  Apparently 1/2 of the the properties inspected – or 400 – had no violations at all.

I wonder if all 8,550 of the violations that were found — and which the landlords were cited for – pertained to life-safety issues?  If you will recall, life safety issues were the ”alleged” original impetus behind the ordinance being introduced. 

In speaking with several landlords that I know who own proeprties in the target areas, I was informed that the violations that they were cited for involved very minor issues — such as peeling paint on the outside of a building, torn screens, and failure to paint some wood that had been properly sealed but not painted.  The lead plaintiff, Jospeh Peters, was quoted in the article as saying that the Orders To Correct that he received on his 10 buildings also involved very minor repairs – such as torn screens.

Just how many of the 8,550 violations dealt with life safety issues?  How many illegal attic bedrooms were found?  How many poorly maintained second story porches that could collapse at any minute were identified?  Don’t forget the overloading of circuits by the improper use of extension cords – how many of those were found?

If you will recall the testimony that was offerred by both Alderman Nik Kovac, who sponsored the ordinance, and Art Dahlberg, Commissioner of the Department of Neighborhood Services, at the public hearing before the ZND Committee way back when, the focus of this program was to make these affected properties safe and prevent unnecessary deaths. 

I’m not sure how many lives have been saved as a result of the RRI ordinance to date, but at least we wont have to worry about any of those deadly torn screens, inherently dangerous unpainted wood, and the lethal peeling paint on the outside of a duplex. 

Not sure about you but I feel a lot safer already.

This ordinance is now being shown for what it really is — not an attempt to save lives and improve properties — but rather an way for the city to get inside one’s private property without the need to obtain a warrant or even receive a tenant complaint, a way to make additional money (through the required filing fees and reinspection fees), and a way to further harass landlords that are having a difficult enough time making ends meet. 

Sometimes I just wish that all of the landlords in the city of Milwaukee had the ability to just walk away from their rental properties.  I wonder if the city would then realize, once all the landlords are gone and there is no one to own or operate rental housing, that we provide a much needed service and that most of us do a good job of providing that service.  Would they try to work with us then . . . . ?

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Imagine If Every Tenant Received A Free Lawyer In Eviction Actions . . . It Could Become A Reality

Oct 4

Posted by Tristan R. Pettit, Esq. in Legislation, State of Wisconsin | 2 Comments

If Legal Action of Wisconsin, Inc, 274 lawyers, 7 judges and 2 court commissioners,have it their way, all indigent persons that are involved in civil lawsuits involving  issues of  “basic human needs” will be given a free lawyer.

According to a recent Milwaukee Journal Sentinel article and ABA Journal article the Wisconsin Supreme Court has been petitioned and asked to require that all indigent persons involved in civil lawsuits that involve issues impacting an individual’s basic human needs, such as sustenance, shelter, clothing, heat, medical care, safety, and child custody and placement, be provided a free lawyer to represent them in th elegal proceedings.

The proposed cost on taxpayers would be anywhere from $50 million to $80 million per year.

If this “civil Gideon rule” is passed you can expect that almost every tenant that wants one will be given a free lawyer to defend them in an eviction action.  This will greatly affect landlords on many fronts.  First, it will result in a delay in the overall process of removing a tenant from a rental unit thus allowing the tenant to remain in the rental unit longer and result in the landlord losing more rent.  Second, it will increase a landlord’s costs by (most likely) increasing the cost to file an eviction action, and then result in higher attorney’s fees should the landlord opt to retain a lawyer; if the landlord handles the eviction himself/herself then s/he will lose more time and money by having to take off work.  Third, assuming that the $50 million – $80 million estimated costs to pay for the “free lawyers” are not entirely covered by an increase in civil filing fees, landlords will most likely see an increase in taxes in some way, shape, or form.

Since the majority of the eviction cases that I encounter involve the tenant not paying rent and has no legal defense, I see this proposed rule as only causing additional court congestion and delay.

In a state such as Wisconsin, which already has very tenant-friendly laws and regulations to begin with, and has courts that often go out of their way to give tenant’s additional time to vacate (in violation of state statutes), and even goes so far as to provide legal advice to tenants (which they should not be doing), this civil Gideon rule, if passed, will make it even more difficult for landlords to continue to survive in the rental industry.

Added October 19, 2010 — Here is a recent blog post by David Ziemer of the Wisconsin Law Journal about the Civil Gideon rule.

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