Archive for category Act 143 (Landlord’s Omnibus Law)

East Side Landlord “Think Small” Seminar Event on March 13th

Feb 27

Posted by Tristan R. Pettit, Esq. in Act 143 (Landlord's Omnibus Law), Screening Tenants, Seminars | No Comments

Make plans to attend the fourth East Side Landlord Think Small event hosted by UWM!

This event is free and open to all interested landlords, with a special focus on Milwaukee’s East Side.

This spring’s event promises to be very engaging with featured presenter Attorney Tristan Pettit, who focuses his practice on representing landlords and management companies in landlord-tenant law matters.

Topics will include screening potential tenants and recent updates to landlord-tenant laws in Wisconsin.

As always, there will be networking time to share ideas with fellow attendees, Q&A time with the presenter, and light refreshments will be served.

Event Details

Date: Wednesday, March 13, 2013

Location: Chapman Hall on the UWM Campus, 2310 E Hartford Ave, Regents Room (2nd Floor)

Time: 4:30pm-6:00pm

Please RSVP to Heather Harbach at harbach@uwm.edu.  Your registration helps us in our planning for this event. Please feel free to share this with other landlords that might find this session interesting! If you have further questions, please contact Heather Harbach, UWM Neighborhood Relations Liaison by e-mail at harbach@uwm.edu or by calling 414-229-4451.

Hope To See You There!

 

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Accepting Past Due Rent After Termination of Tenancy: The New Law and Traps To Avoid

Jul 16

Posted by Tristan R. Pettit, Esq. in Act 143 (Landlord's Omnibus Law), Evictions, Legislation, Notices | 3 Comments

The Landlord’s Omnibus Law (Act 143) introduced a new statutory section to Chapter 799 regarding situations when a landlord accepts past due rent from a tenant after the tenant’s tenancy has been terminated.  Newly created sec. 799.40(1m) states as follows:

If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may NOT be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant’s tenancy.

On its face, this seems like a very helpful statute for landlords.

As a quick refresher, it is important to remember that a tenant’s tenancy can be terminated in many ways such as after the “cure” period passes after being properly served with a 5 day notice, 14 days after being properly served with a 14 day notice, or when a lease term ends.

Prior to sec. 799.40(1m) being created, tenant’s advocates argued — and some courts held — that if a landlord accepted past due rent from a tenant after the expiration of the tenant’s tenancy that the landlord entered into a new agreement with the tenant for a month to month tenancy, thus waiving the landlord’s right to proceed with an eviction action based on the prior notice.

I personally believe that such arguments are hogwash, but I will not digress, as that is not the purpose of this post.

Nonetheless, because this “waiver” argument was successfully raised in the past, I have always advised my clients to err on the side of caution and not accept past due rent after the tenant’s tenancy was terminated.  A landlord can refuse past due rent in one of two ways.  First, a landlord can simply refuse the tendered past due rent from the tenant or return the rent payment to the tenant.  This is always a difficult pill for landlords to swallow as they know that by returning the rent payment to the tenant that they will never see that money again.

Second, a landlord could hold the past due rent payment in escrow (not cashing the check or money order) and immediately write what I refer to as a “no waiver” letter and send to the tenant via certified and regular mail.  A “no waiver” letter simply advises the tenant that their past due rent payment is not being accepted as their tenancy has already been terminated.  The letter also should advise the tenant that it is the landlord’s intent to pursue the eviction of the tenant and that the landlord will hold the past due rent in escrow pending a determination by the eviction court as to who legally has the right to possess the rental property.  Finally, a “no waiver” letter should again remind the tenant that the payment they made is not being accepted.

Whenever I have drafted a “no waiver” letter for a client that has accepted past due rent from a tenant post tenancy, I never had a court hold that my landlord client waived his/her right to proceed with the eviction lawsuit.  As a result, my clients have become big fans of the “no waiver” letter.

With the creation of sec. 799.40(1m), it would seem that there is no longer a need for a landlord to send a “no waiver” letter or to return a past due rent payment to a tenant . . . or is there.  I would caution landlords against thinking that this newly created statute is the panacea that it appears to be.

Let me explain.

First, if you read the new law closely — which I don’t believe the drafters did or they would have remedied this oversight – it states that an eviction based on a tenant’s failure to pay rent, may not be dismissed solely because the landlord accepts past due rent after the termination of the tenant’s tenancy.

There are many basis for terminating a tenant’s tenancy besides just failure to pay rent.  Other reasons may include the expiration of a lease term or a breach of the rental agreement for something other than non-payment of rent (i.e. criminal activity, damage to the property, loud music, illegal guests etc).  The new law does not address what happens if a landlord accepts past due rent from a tenant and the tenant’s tenancy was terminated for somthing other than failure to pay rent.

So literally speaking, a court could still dismiss an eviction if a landlord accepts past due rent from a tenant who’s tenancy was terminated based on something other than failure to pay rent and not run afoul of the new law.  Ouch!  What about situations in which the tenant’s tenancy was terminated for failure to pay rent AND other reasons?  Does the new law applyin those situations?

A second concern with the new law arose recently in Milwaukee County.  Please note that this information was relayed to me by another person so I cannot 100% vouch that I have all the facts correct since I was not present when this happened.  What I was told was that a landlord’s eviction lawsuit, based upon a tenant’s failure to pay rent, was dismissed because the landlord accepted past due rent from the tenant after the termination of the tenant’s tenancy and failed to advise the tenant that it was the landlord’s intent to still proceed with the eviction of the tenant.  The court held that newly created sec. 799.40(1m) was not applicable in this situation because the landlord failed to advise the tenant of the fact that the landlord still intended to evict them.

Simply put, the new law is not as great as it appears — so be cautious when relying on it.  Know your judge.  Know your court commissioner.  Regardless of what the law says, if the court believes it says something else or is not applicable to your specific facts, you may not get the result that you were expecting.

So as a result of above, I am still advising my clients (despite sec. 799.40(1m) being the new law in town) that they should consider refusing to accept any past due rent from a tenant after the tenant’s tenancy has been terminated.  At the very least they should send a “no waiver” letter.

So proceed with caution.

 

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Learn About Wisconsin’s New Landlord-Tenant Law At AASEW’s Next Meeting on June 18th.

Jun 12

Posted by Tristan R. Pettit, Esq. in AASEW, Act 143 (Landlord's Omnibus Law), Legislation | No Comments

You will not want to miss the Apartment Association of Southeastern Wisconsin’s next membership meeting on June 18, 2012.  The focus of the meeting will be on Wisconsin’s new Landlord Omnibus law (Act 143).

The passage of this new law in late March made a lot of changes to landlord tenant law in Wisconsin – both residential and commercial.  Landlords and management companies will need to make modifications to their rental documents and m,anagement procedures and practices in order to be in compliance.

We will have two landlord attorneys (myself and AASEW Attorney Heiner Giese) and a tenant attorney (Bob Andersen of Legal Action of Wisconsin) at the meeting to summarize the changes to you, give you our interpretation of the law and how it will play out in court, and provide you with reccomended best practices.  Oh yeah . . . and we will also answer your questions.

This new law was rushed through the legislative process and as such it was poorly written, resulting in much confusion and a difference of opinion as to how it should be interpreted.  The panel members will do their best to point out the areas of concern so that you can be better prepared in dealing with them.

Dont forget about the FREE food.

Here are the details:

LOCATION:     Best Western Hotel located at 1005 S. Moorland Road in Brookfield WI

DATE:     Monday, June 18, 2012

TIME:     7 pm

COST:     Free to members of the AASEW; $25 to non-members — Become a member that night and pay only $59 for the rest of the year (and avoid the $25 fee).

We hope to have a great turnout and a great discussion.  I hope to see all of you there.

T

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So Are Illegal Provisions In Wisconsin Residential Rental Agreements Severable Or Not?

Jun 8

Posted by Tristan R. Pettit, Esq. in Act 143 (Landlord's Omnibus Law), Legislation, Rental Agreements, Rental Documents | 6 Comments

 

 

SHORT ANSWER:  Yes . . . and No.

LONG ANSWER:   The newly passed law referred to as the Landlord’s Omnibus Law (Act 143) adresses this issue but provides contradictory answers.

In newly created sec. 704.02 of the Wisconsin Statutes, the law states quite clearly that the provisions of a rental agreement or lease are severable.  Specifically, it states that if any provision of a rental agreement is rendered void or unenforceable by reason of any statute, rule, regulation or judicial order, the invalidity or unenforceability of that provision does not affect the other provisions of the rental agreement that can be given effect without the legal provision.

So according to sec. 704.02, the answer to question posed in the title of this blog post would be a resounding “Yes.”

BUT . .

In the very same law, the legislature also decided to create a new section 704.44 that copies a regulation from ATCP 134 entitled (Residential Rental Provisions), specifically ATCP 134.08 entitled “Prohibited Rental Agreement Provisions,” which sets forth 7 things that cannot be included in a Wisconsin residential rental agreement – which I affectionately refer to as the 7 Deadly Sins.

The legislature also decided to add an 8th and 9th provision that cannot be included in residential rental agreements in Wisconsin.  So now I have to refer to the outlawed provisions as “The 9 Deadly Sins” which just doesn’t have the same ring to it.  : (

The 9 provisions that if included in a residential rental agreement will render the agreement void are:

1.   Any provision that allows a landlord to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services: (a) increase rent, (b)  decrease services, (c)  Bring an action for possession of the premises, (d)  refuse to renew a rental agreement, (e)  threaten to take any action under pars. (a) to (d).  This is one of the new clauses added by the legislature is Act 143.

2.  A provision that authorizes the eviction or exclusion of a tenant from the premises, other than by judicial procedures as provided under ch. 799.

3.  A provision that provides for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise waives the landlord’s obligation to mitigate damages as provided in s. 704.29.

4.  A provision that requires payment by the tenant of attorney fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement.  This subsection does not prevent a landlord or tenant from recovering costs or attorney’s fees under a court order under ch. 799 or 814.

5.  A provision that authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

6.  A provision that states that the landlord is not liable for property damage or personal injury caused by negligent acts or omissions of the landlord.  This subsection does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

7.  A provision that imposes liability on a tenant for any of the following: (a) personal injury arising from causes clearly beyond the tenant’s control, (b) property damage caused by natural disasters or by persons other than the tenant or the tenant’s guests or invitees.  This paragraph does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

8.  A provision that waives any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition or to maintain the premises during the tenant’s tenancy.

9.  A provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.  This is the other new clause added by the legislature in Act 143.

So according to sec. 704.44, the answer to question posed in the title of this blog post would be “yes  . . . unless it is one of the 9 deadly sins which if included in a Wisconsin residential rental agreement or lease would not be severable and in fact would render the entire agreement void.”

Why can’t the law be more simple and clear?

 

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What Can A Landlord To Do With A Tenant’s Abandoned Personal Property Under Wisconsin’s New Law?

May 10

Posted by Tristan R. Pettit, Esq. in Abandoned Property, Act 143 (Landlord's Omnibus Law) | 10 Comments

With the signing into law of 2011 Wisconsin Act 143, a landlord’s obligations with regard to a tenant’s abandoned property has just gotten much easier.

Prior to Act 143 a landlord had three options with respect to a tenant’s abandoned property.  The landlord could:

1.  Store the tenant’s abandoned property on or off the premises and take a lien on the property for the actual and reasonable cost of removal and storage of the property, or

2.  Dispose of the property if the tenant didn’t reclaim it within 30 days of the landlord sending the tenant written notice of the abandoned property, or

3.  Store the abandoned property without a lien and return it to the tenant.

Some landlords got themselves into trouble under the old law.  Some would forget to send out the abandoned property notice to the tenant.  Some would dispose of the abandoned property prior to 30 days after mailing the notice.  Others would refuse to return the tenant’s property unless the tenant paid up all past due rent (this is called distrain and was outlawed years ago).  If the tenant’s abandoned property had value sometimes these landlord would get sued.  In an effort to educate landlords about this law I even drafted an Abandoned Property Notice form that was sold at Wisconsin Legal Blank noting the 3 options the landlord had.

Wisconsin’s new law regarding tenant’s abandoned property is more simple.

As long as a landlord provides written notice to the tenant — at the time that the tenant enters into the rental agreement or renews the rental agreement – that the landlord is NOT going to store any of the tenant’s abandoned personal property, a landlord is allowed to immediately dispose of the abandoned property in any manner that the landlord, in his sole discretion, feels is appropriate.

There are two exceptions to the new law allowing a landlord to immediately dispose of a tenant’s abandoned property.

First, in the case of prescription medication or prescription medical equipment, a landlord must hold such items for 7 days from the date of discovery to allow the tenant time to retrieve those items.  If the tenant contacts the landlord within the 7 day period and requests the return of the medical items the landlord shall promptly return them to the tenant.  After the 7 days have passed, the landlord is allowed to dispose of the medical items in any way that he determines to be appropriate.

Second, if the tenant has abandoned a titled vehicle or a mobile or manufactured home, the landlord must give the tenant — and any secured party that the landlord has actual notice of — written notice of the landlord’s intent to dispose of the titled vehicle or mobile/manufactured home, personally or by regular or certified mail addressed to the tenant’s last known address.

So for those of you that want to avail yourself of this streamlined process of the key is to provide the required “notice” language to the tenant.  It makes the most since to simply include the required language in your rental agreement and any renewal agreement.

Below is the sample notice language that I added to the rental agreement that I draft for Wisconsin Legal Blank.

ABANDONED PROPERTY:  Landlord will not store any items of personal property that tenant leaves behind when tenant vacates, except for prescription medication or prescription medical equipment, which will be held for seven (7) days from the date of discovery.  If tenant abandons a manufactured or mobile home or a titled vehicle, landlord will give tenant and any other secured party that landlord is aware of, written notice of intent to dispose of the property by personal service, regular mail, or certified mail to tenant’s last known address.

Please be aware that if you fail to provide the required notice to your tenant then you will be required to abide by the old law and follow one of the three options explained earlier in this post.

It is important to note however, that this new law does NOT relieve a landlord of his duty to evict a tenant through the judicial eviction process if the tenant has not vacated.  A landlord should not just assume that the tenant’s property is abandoned and the tenant has vacated the unit.  A landlord still must make the very important (and sometimes costly) analysis on a case by case basis as to whether or not the tenant is still living in the unit or whether he has vacated and abandoned his property.  This new law does not prevent a tenant from suing a landlord for double damages and attorney’s fees for engaging in a self-help eviction.  All this law does is make it simpler and easier to dispose of a tenant’s abandoned property once the tenant has vacated the rental property.

 

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

Apr 27

Posted by Tristan R. Pettit, Esq. in AASEW, Act 143 (Landlord's Omnibus Law), ATCP 134, Legislation | 4 Comments

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

Apr 11

Posted by Tristan R. Pettit, Esq. in Act 143 (Landlord's Omnibus Law), Commercial L-T Law, Legislation, State of Wisconsin | 1 Comment

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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