Archive for October, 2011

New Federal Bill Would Add Two New Protected Classes To Federal Fair Housing Act

Oct 31

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Legislation | 4 Comments

On September 26, 2011 both chambers of the U.S. Congress introduced legislation that would extend housing discrimination laws to include protections based on sexual orientation and gender identity.  The HOME (Housing Opportunities Made Equal) Act was introduced by Sen. John Kerry and others.  The bill would amend the Fair Housing Act to prohibit housing discrimination and intimidation on the basis of sexual orientation and gender identity.

Wisconsin is one of 13 states and the District of Columbia that already outlaws housing discrimination on the basis of sexual orientation. However, currently only 8 states afford fair housing protection based on gender identity and Wisconsin is not one of those states.

 

Tags: , ,

New Bills Would Limit Tenant’s Attorney’s Fees When Suing Landlords

Oct 27

Posted by Tristan R. Pettit, Esq. in ATCP 134, Legislation, State of Wisconsin | 3 Comments

There are two new proposed laws that if passed would limit the amount of attorney’s fees that could be awarded to a tenant that has sued his/her landlord for violation of ATCP 134 to 3 times the amount of compensatory damages in Wisconsin.  The proposed legislation (Special Session Assembly Bill 12 & Special Session Senate Bill 12) was introduced by the committee on Senate Organization and the Committee on Assembly Organization at the request of Governor Scott Walker, Senator Rich Zipperer (R) and
Representative Robin Voss (R).

Currently if a tenant sues his landlord for a violation of ATCP 134 – which typically is due to  the landlord’s alleged improper withholding of the tenant’s security deposit – and prevails, the court must award the tenant double damages, the costs of the lawsuit, and the tenant’s reasonable attorney’s fees.  In almost every instance, the tenant’s reasonable attorney’s fees are much larger than the compensatory damages awarded.

In the United States we follow what is referred to as the American Rule which states that a person pays for their own attorney’s fees regardless of the outcome of the lawsuit.  This is very different from the English Rule, which is followed in England, which requires the losing party to pay for the prevailing party’s attorney’s fees in addition to their own.

Despite following the American Rule in the United States, there are certain situations in which a state or federal statute will allow for the shifting of one’s attorney’s fees to th other party.  These statutes are referred to as fee shifting statutes.  Sec. 100.20(5) of the Wisconsin Statutes is an example of a specific type of fee shifting statute, called the private Attorney General statute, which requires that a landlord that has been found to have violated ATCP 134, to pay his tenant two times the tenant’s compensatory damages and the tenant’s reasonable attorney’s fees.

It is argued that the private Attorney General statute, which is codified as sec. 100.20 (5), Wis. Stats., has many purposes, such as: (1) it encourages a tenant that is damaged financially by the acts of their landlord to file a lawsuit to enforce their rights even if the alleged damages are small, (2) it allows a tenant to enforce his own rights as well a well as the public’s rights, (3) it deters improper conduct by landlords, (4) it strengthen the bargaining power of a tenant, and (5) it provides a much needed backup for th State as there are too many violations for the Attorney General’s Office to enforce alone.

These new bills would limit a tenant’s attorney’s fees to 3 times the amount of the compensatory damages awarded in all cases in which only compensatory damages are awarded.  If non-monetary relief is awarded in addition to compensatory damages (such as injunctive or declaratory relief, rescission or modification, or specific performance the court must “presume” that reasonable attorney’s fees do not exceed 3 times the amount of the compensatory damages awarded, however that presumption may b overcome after the court analyzes 13 factors which the bills will allow a court to consider when setting the amount of attorney’s fees.

Critics of the two new bills feel that if passed, they will essentially “gut” Wisconsin’s consumer protection laws.  Their argument is that no attorney will be able to afford to tak a tenant’s smaller damage case due to the limitations of their fees.  As a result, it is argued that tenants will no longer be able to challenge the improper behavior of the landlords and therefore” bad” landlords will be able to do whatever they want and get away with it.

 

UPDATE – 10-28-11 — On Thursday, Oct. 27, 2011 the aforementioned bill was passed by the Senate 17-15 (on a party line vote). The bill was softened a bit to allow for atty. fees greater than 3 times damages to be awarded by a judge BUT the presumption would still be that three times damages is sufficient.

Tags: ,

Revised Small Claims Summons Required To Be Used As of November 1, 2011

Oct 24

Posted by Tristan R. Pettit, Esq. in Evictions, Milwaukee County, Small Claims Court | 5 Comments

In a prior post I explained that the small claims jurisdictional limit was increased from $5,000 to $10,000 as of July 1, 2011.  This change has necessitated a revision to the mandatory small claims summons form that is required to be used when filing an eviction, replevin, and collection actions under $10,000 (as well as arbitrations confirmations and personal injury claims less than $5,000).

So far, the Clerk of Courts has been accepting filings using the old mandatory summons (1 page form) as well as the revised mandatory summons (2 page form).  However, as of November 1, 2011, they will only be accepting the new 2 page summons – SC-500.  Remeber that in Milwaukee County you are required to use the Summons that is written in both English and Spanish.  All mandatory small claims forms can be found here.

So if you still have some of the old forms available make sure you use them all up by October 31st.

Don’t have your eviction delayed because you are using an outdated form!

Tags: , ,

Crime-Free Lease Bill On The Horizon

Oct 17

Posted by Tristan R. Pettit, Esq. in AASEW, Legislation, Notices | 3 Comments

On September 12, 2011, on behalf of the AASEW, I traveled to Madison to meet with the Wisconsin Rental Housing Coalition, several legislators’ aides, and an attorney from the Legislative Reference Bureau to assist in the review of and drafting of a new piece of legislation that will greatly affect residential landlords.

Not yet a bill, this proposed legislation is referred to as LRB-2098/1 or informally as the “Crime-Free Lease bill.”  Initiated by fellow landlord and South Milwaukee Police Officer Brian Fleming, this legislation if passed, will change current Wisconsin law to allow a landlord to terminate the tenancy of any tenant (even those under a lease for term) that engages in criminal activity in their rental unit or on the rental property.  A new type of 5 day notice would be created under this legislation which would not allow the tenant the opportunity to cure the breach and stay.  It would basically be a “1 strike” law similar to what is in place in federal Section 8 site-based housing.

Criminal activity under the proposed legislation would be defined as any act or behavior that is punishable in Wisconsin by a fine or period of imprisonment or that is a violation of a municipal ordinance.

If the tenant fails to vacate the unit after being served with this new 5 day notice, the landlord would still be required to prove the criminal activity in eviction court.

The impetus for this legislation was the National Crime Free Lease Addendum that has been adopted and used in many counties outside of Wisconsin.  Under this initiative, a tenant agrees not to engage in criminal activity on the rental property — or allow any of their guests to do the same — and signs a contract with the landlord to that effect.  If the tenant or the tenant’s guests engage in the prohibited criminal activity, they agree to vacate the property upon notice by the landlord.

Current law in Wisconsin conflicts with the Crime Free Lease Addendum as tenants under a lease for a specific term, must be afforded the opportunity to correct the breach and remain a tenant the first time that they violate their lease — even if that violation is a crime.

Sec 704.17(2)(b) of the Wisconsin Statutes, allows a tenant under a lease who engages in criminal activity, to remain a tenant as long as s/he ceases the criminal activity within 5 days of being served the notice of breach.  Thus, a landlord can be stuck with a tenant that he knows engages in criminal behavior until that tenant commits a second crime and can be served with a 14 day notice (which does not afford the tenant the opportunity to “cure” the breach and remain a tenant).

This puts Wisconsin landlords in a very difficult position and opens them up to liability.  It also prevents a landlord from protecting his/her other tenants from the tenant that is engaging in criminal activity.

Once the bill is officially introduced and has obtained co-sponsors I will let you know so that you can begin calling and writing your state representatives to encourage them to vote in favor of this very important legislation.

Tags: , , ,

Milwaukee County Eviction Court Commissioner To Speak At Next AASEW Meeting on Oct. 17th

Oct 14

Posted by Tristan R. Pettit, Esq. in AASEW, Evictions, Milwaukee County | No Comments

On Monday, October 17, 2011, Milwaukee County Eviction Court Commissioner Rosa Barillas will speak at the Apartment Association of Southeastern Wisconsin’s general membership meeting.

The meeting will start at 7 pm and be held at the Best Western Midway Hotel located at 1005 S. Moorland Road in Brookfield, WI.

Commissioner Barillas will speak to the group about mistakes that she sees landlords make in eviction court and how they can avoid them.  She will also be taking questions.

If you have never been to an AASEW meeting (or haven’t been to one in awhile) please join me at our next meeting on October 17, 2011.  You will not be sorry.

 

T

Tags: , ,

Update on Landlord Pre-Emption Bill

Oct 10

Posted by Tristan R. Pettit, Esq. in City of Madison, Legislation, Screening Tenants, State of Wisconsin | 4 Comments

It has been awhile since I updated everyone on the pro-landlord legislation that is being addressed in Madison.  Senate Bill 107 (SB 107) — referred to as the Landlord Pre-Emption Bill —  has been passed by the Wisconsin Senate and is currently being reviewed by the House this term (AB 155).

You may recall that SB 107 prohibits any municipality from enacting any ordinance that limits a landlord from obtaining or using various types of information about a tenant or prospective tenant, such as household income, occupation, court records, rental history, and credit information, or limits how far back in time a prospective tenant’s
credit information, conviction record, or previous housing may be considered.

The bill has received much opposition from local municipalities and their lobbyists, not for the substance of the bill, but rather for the fact that if passed, the law will
restrict a municipality’s ability to draft certain ordinances.  Essentially the municipalities feel this to be a breach of their own sovereignty and an example of the state overstepping its bounds.  Many feel that this is really just a Madison problem — since it is the City of Madison that has enacted many of these restrictions on what information a landlord can consider when making a rental decision – and therefore should be dealt with at the city level.

Another group of critics believe that the bill discriminates against African-Americans.  Four Dane County Board Supervisors, two Madison City Council members and one Madison School Board member, sent a letter to Governor Walker and legislators on September 7, 2011, asking that the provision of the bill that will allow landlords to deny housing to tenants with criminal histories be removed because is discriminates against African Americans.

They argue that allowing a landlord to deny a rental applicant housing based on his/her criminal convictions will unfairly affect African-Americans because while they
only comprise 6% of the state’s population they account for almost 50% of those with arrest and conviction records.  Thus the critics of the bill argue that to allow a landlord to deny a rental applicant based on his/her criminal record is to allow landlords to deny housing based on race.

The critics are relying on the doctrine of “disparate impact.”  The disparate impact doctrine holds that certain laws may be discriminatory and illegal – even if the law is neutral on its face — if they have a disproportionate “adverse impact” on members of a minority group.

This disparate impact argument is ignoring a key ingredient – one’s choice to engage in criminal activity.  One’s race is not something that a person has control over – we are born into a certain race.  On the other hand, individuals do have control over whether or not they engage in criminal activity.  Committing a crime is a volitional act.  Being born African-American is not.  We are dealing with apples and oranges here.

Disparate impact arguments are often raised when a law unintentionally affects a minority group through no fault of their own.  This small group of critics, are trying to apply the disparate impact doctrine to individuals that made a voluntary decision to engage in criminal activity.

 

UPDATE – 10-28-11 — On Wed. Octo 26, 2011, By a vote of 59-34 the Assembly voted to suspend a rulling on AB155.  An amendment was made by Rep Chris Taylor (D-Madison) that would protect some local control within the bill – the amendment was tabled by a vote of 60-33.

Tags: , , , , ,

Three Wisconsin Landlords Charged with Violating Fair Housing Laws

Oct 4

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, State of Wisconsin | 7 Comments

Three Wisconsin landlords have recently been charged with violating Fair Housing laws by the U.S. Department of Housing and Urban Development (HUD).

First, in late July, HUD announced that it charged a husband and wife who own a rental property in Brown County with violating the Fair Housing Act for allegedly creating
different rental requirements for a single mother and her son.  The charge also alleges that the landlords’ lease agreement includes policies and rules restricting families with children.

Specifically, HUD’s complaint alleges that shortly after accepting a single mother’s rental application, the landlords added a new requirement that the single mother
promise to be present at home whenever her 17 year old son had visitors.  The mother was unwilling to agree to this requirement and as a result the landlords refused to rent to her and her son.  The landlord’s ended up renting the property to a family with no children.  Additionally, it is alleged that the landlords’ lease agreement included clauses that are unduly burdensome on families with children, including a provision that says “no children are allowed to play in common areas of the building” and imposes
a $100 fine and eviction for violating said policy.

Second, on September 9, 2011, HUD charged a West Salem female landlord for violating Fair Housing laws by refusing to rent to a single mother because she did not have a man “to shovel the snow” for her.  The landlord eventually rented the property to two men.

The rental property at issue is a home on a cattle farm and is located in a hollow.  The landlord told the investigators that the winters there are “brutal” and a single mother could not handle the seclusion and the snow removal.  The landlord went on to comment that it was “just common sense” to deny the applicant and then asked the investigator if he would allow his daughter to live alone with a child, a mile and a half from neighbors.  Further inserting her foot into her mouth, the
landlord told the investigator, “[i]f she thinks I discriminated against her, I absolutely did.”  The landlord continued to make matters worse by telling housing authorities that
she “never rents to single mothers, especially in the country,” and had no plans to change.  She added that “single mothers are part of the country’s financial problems” today.

This case should be a “slam dunk” for HUD.  The landlord would’ve greatly benefited from the assistance of counsel – although based on her comments she probably would not have listened to an attorney’s advice.  Anyone care to wager on the outcome of this?  I am expecting a rather large fine to be imposed.

UPDATE 10-31-11 — This ended up being a $15,000 mistake for the West Salem Landlord – who ended up settling the claim.

Third, on September 26, 2011, HUD announced that it charged a La Crosse landlord and property manager with violating anti-discrimination laws for refusing to rent to an
African-American couple because of their race.  It is alleged that the owner and property manager refused to show available apartments to the black couple.  Additionally, they told the couple and other black applicants, that no rental units were available, while just minutes later they told white applicants of the available rental units and encouraged them to apply.  This behavior allegedly occurred over a period of 2 months.  Both black and white “testers” were sent to the property and confirmed that the black
testers were told no rental units were available while the white testers were told of open units and encouraged to apply.

Every day I hear of more and more landlords and property managers being charged with violating both federal and state Fair Housing laws.  I wish that more landlords would take the time to educate themselves on these laws.  Read some of my earlier posts on Fair Housing issues here, here and here.

Tags: , ,