Archive for April, 2012

Joint Legislative Council Gives Clarification To Wisconsin’s New Landlord’s Omnibus Law

You will recall from my earlier post that I had some concerns about the new Landlord’s Omnibus Law (Act 134).  One of my main concerns was that it was unclear from the wording of Act 143 whether or not a violation of chapter 704 would give rise to a claim by a tenant that would entitle the tenant to double damages and attorney’s fees if successful.

The portion of Act 143 that concerned me was Section 36, which creates Wis. Stats. sec 704.95, and reads as follows:

704.95  Practices regulated by the department of agriculture, trade and consumer protection.  Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20.  However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty arising under this chatper.

My concern was that tenants might start filing suits against landlords alleging that they were entitled to double damages and attorny’s fees if a landlord violated any portion of chapter 704.  Could a landlord be on the hook for double damages and attorney’s fees if he drafted a 5 day notice improperly or served the notice incorrectly?

Because of this concern, the Apartment Association of Southeastern Wisconsin (AASEW) attorney wrote to the State of Wisconsin’s Joint Legislative Council which authored the earlier memo summarizing the new Act 143.  Specifically the AASEW asked staff attorney Margit Kelley to clarify section 36 of her Act Memo dated March 26, 2012.

I have good news to report.  Attorney Kelly in her letter to the AASEW’s attorney, indicated that any violation of Chapter 704 does not automatically lead to a cause of action for double damages and attorney’s fees.

Her verbatim response — referring to section 36 (now Wis. Stats. section 704.95) – was as follows:

This means that DATCP may promulgate and enforce any administrative rules that are in line with ch. 704, Stats., including the provisions of the Act that affect that chapter, under DATCP’s authority to regulate unfair methods of competition or unfair trade practices in s. 1002.0, Stats.  Section 100.20(5), Stats., then, in turn allows an individual right of action for a violation of any rules promulgated under s. 100.20, Stats., and allows for recovery of costs, reasonable attorney’s fees, and twice the amount of any pecuniary loss.

Translation:  DATCP can create rules to add to ATCP 134 that are line with chapter 704, but a violation of ch. 704 alone does not give rise to a cause of action that entitles a tenant to double damages and attorney’s fees, unless that section of the statute is also contained in ATCP 134.

So for instance, if a landlord was found to have violated Wis. Stats. section 704.28, entitled withholding from and return of security deposits, a tenant would be entitled to receive an award of double damages and attorney’s fees because the language of sec. 704.28 is ALSO contained in ATCP 134 – specifically ATCP 134.06(2).

Along those same lines, if a landlord was found to have violated Wis. Stats., sec. 704.44, entitled residential rental agreement that contains certain provisions is void, a tenant would als be able to recover double damages and attorney’s fees as the language of sec. 704.44 is ALSO contained in ATCP 134  – specifically ATCP 134.08.

As long as the courts are made aware of this, it now appears that landlords can breathe a sigh of relief as they will no longer have to worry about being ordered to pay double damages and attorney’s fees to a tenant for  improperly drafting or serving a 5 day notice, or any other portion of ch. 704 that is not also included in ATCP 134.

Now we just have to worry — as we have always had to – about having the court dismiss our evictions because of an improperly drafted or served 5 day notice : )

 

 

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New Landlord Omnibus Law: Odds and Ends

There has been a lot of discussion about the new Landlord Tenant law in Wisconisn (2011 Wisconsin Act 143) since it became law on March 31, 2012.  Some people’s views seem similar to mine while others have interpreted the law completely differently than I do.  Here is a link to one law firm’s summary that in my opinion is completely off base, but then again they are Minnesota lawyers so we may have to give them a pass : ).  But really guys, the new law did not create a new right for landlord’s do deduct from a tenant’s security deposit — have you ever heard of ATCP 134.

I guess only time will tell how the law in interpreted by the courts in Wisconsin.  One thing that I know for sure is that the politicians in Madison will be unable to correct any errors, or clarify and vagueness, in the new law until 2013 when they are back in session.  So we are stuck with this for awhile and must make do.

The AASEW will be devoting it’s June membership meeting (June 18, 2012 at 7 pm) to the new law and we hope to invite both landlord advocates and tenant advocates alike to present so that all sides can be presented.  You will not want to miss this meeting.  Come learn what the new law is and what you need to do in order to be in compliance.  There will be no charge to AASEW members but we will be charging $25 for non-members to attend.

While I personally do not have anything new to add on the new law that I haven’t said already in prior posts, I thought I would provide links to several items relevant to the new law that people might find interesting and useful.

Here is a copy of the newly enacted law – Act 143

Here is an overview of the new law by the Wisconsin Legislative Council

Here is a copy of the newly revised Chapter 704 (Landlord and Tenant) of the Wisconsin Stattutes which includes all of the changes/additions — so I no longer have to carry around Act 143 : )

Here is an article that I recently wrote on the new law for the Wisconsin State Bar’s Inside Track blog which includes several interesting comments on the new law by local lawyers.

Here’s a blog article by my friend Tim Ballering about how the new law affects those landlords who are currently using a crime free lease addendum or something similar.

Thanks for reading

T

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Newly revised Landlord-Tenant Law Forms Available at Wisconsin Legal Blank on April 2 and April 3, 2012.

Wisconsin’s Landlord Omnibus Law (Act 143) went into effect today – April 1, 2012.  As a result of the new law it was necessary for me to update many of the landlord-tenant law forms that are sold at Wisconisn Legal Blank.

 

As of Monday, April 2, 2012, the following revised forms will be available:

1.   Residential Rental Agreement  (Form #19)

-  Added language required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

-  Added language about any illegal clause in the rental agreement being severable from the n9on-illegal clauses.

-  Correction of some grammar and punctuation mistakes.

2.   Nonstandard Rental Provisions (Form #984)

-  Added langauge required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

-  Revised language as to when landlord must return security deposit or supply security deposit itemization letter when tenant vacates prior to end of lease term.

-  General revisions to the language of each nonstandard rental provision to comply better with the holding in the Tschantz case.

3.  Notice of Rent Increase in Month to Month Tenancies (Form #332)

-  Added langauge required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

4.  Residential Lease Renewal or Notice To Vacate (Form #970)

-  Added langauge required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

5.   Tenant Inspection Sheet (Check-In – Check-Out Form)

-   Revised the title of this form to comply with the title used in the new law.

NOTE:  It is now required that a landlord give this document to tenant’s upon occupancy.  So if you have not previously used this document you need to start doing so now.

 

As of Tuesday, April 3, 2012 the following revised forms will be available for purchase at Wisconsin Legal Blank

6.   5 Day Notice To Pay Rent or Vacate (Form #328)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled to holdover damages of, at a minimum, double the daily rent for the holdover period.

-  Added a line for “Total Amount Due”

7.   5 Day Notice To Correct Breach or Vacate (Form #330)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

8.  5 Day Notice To Vacate – Nuisance (Form #329)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

9.   14 Day Notice To Vacate for Failure To Pay Rent (Form #768)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

-  Added a line for “Total Amount Due”

10.   14 Day Notice To Vacate For Breach of Rental Agreement (Form #767)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

11.   28 Day Notice Terminating Tenancy (Form #327)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

12.  30 Day Notice To Correct Breach or Vacate (Form #325)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

 

Sometime in the near future the following revised form will be available at Wisconsin Legal Blank:

13.   Rules & Regulations (Form #994)

-  Will inlcude major revisions including language, organization and format.

-  Will include revised language regarding a tenant’s responsibility for the actions of their guests, invitees and family members that will comply with the law and not run afoul of “Deadly Sin #8″ created by the new law.

 

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