Archive for category ATCP 134

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 | 1 Comment

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.

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The Consequences of A Landlord Violating Wisconsin’s Residential Rental Practices (ATCP 134)

Apr 28

Posted by Admin in ATCP 134 | No Comments

The Residential Landlord Tenant relationship is controlled by two main areas of law: (1) Chapter 704 of the Wisconsin Statutes, and (2) the Wisconsin Administrative Code, Chapter ATCP 134 entitled “Residential Rental Practices.”

ATCP 134 sets forth 21 regulations that a landlord must follow in a residential landlord tenant context.   ATCP 134, under its orginal name “Agriculture 134,” was first introduced in May of 1980.  “Ag 134″ was then renamed ATCP (Agriculture, Trade and Consumer Protection) 134 in 1993.  In 1999 there was a complete overhaul of ATCP 134 which resulted in the 21 regulations that we have today.

If you are a landlord and are not familiar with ATCP 134 please take the time to read the chapter — it is only 5 pages long and is relatively easy to understand — it must have been drafted by someone other than a lawyer or government employee  : )

The main remedy available to a tenant that is damaged by a landlord violating ATCP is what is referred to as the “private attorney general” provision.  Essentially, the Wisconsin Statutes allow a party who is injured by a violation of ATCP 134 to “step into the shoes” of the State Attorney General to privately prosecute such violations.

This private attorney general provision, specifically sec. 100.20(5), allows an injured tenant to recover double damages and reimbursement of their actual attorney’s fees against a landlord that has violated ATCP 134.

The State has enumerated several public policy reasons for allowing the private attorney general provision in the residential landlord tenant context, such as:

 1.   It encourages an injured tenant to enforce his/her rights even if the amount of damage is small and the aggrieved tenant does not have the “means” to pay for their own attorney.

2.   A tenant who sues for a violation of ATCP, while clearly enforcing his/her rights, will also be enforcing the public’s rights.

3.   By allowing a tenant the ability to more easily pursue such claims against his/her landlord, it will deter impermissable conduct by landlords and thus strengthen the bargaining power of tenants.

4.   It provides a necessary backup to the State, as the State does not have the time or resources to pursue lawsuits against all landlords who violate the regulations of ATCP 134.

Whatever your thoughts are about the above-reasoning, it is imperative that you become knowledgable about the 21 regulations contained in ATCP 134.  During the course of consulting with landlords and property managers in my job as an attorney, I am always surprised by the number of landlords that have never heard of ATCP 134.

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Landlords Should Periodically Inspect Their Rental Property . . . or Risk $98,465 In Damage

Nov 15

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

Last night I read an article about a Virginia landlord that had $98,465 in damage to one of his rental units.  Apparently his tenant was a compulsive hoarder and every room in the home was full from floor to ceiling with trash, soiled clothing, old newspaper, rotten food, and other deberis and excrement.  It cost the landlord over $98,000 to get the unit back into rentable condition.  The landlord’s insurance company refused to pay for the damages claiming that damage from compulsive hoarding was not covered under the dwelling policy.

After finishing the article I thought to myself that the landlord really was partly to blame for allowing the situation to get so out of control.  The landlord should have conducted periodic inspections of the interior of his rental property.  If he had done so, most likely, the landlord would have noticed the accumulation of “stuff” months or even years earlier and could have addressed the issue with the tenant before too much damage occurred.

It is good practice for landlords to periodically inspect the interior of their rental units and Wisconsin law allows for these periodic inspections as long as certain requirements are followed.

Background:

The covenant of quiet use and enjoyment is implied in all rental agreements.  This covenent simply means that the landlord guarantees that the tenant may take possession of the rental unit and that the tenant has the right to privacy and exclusive use of and possession of the property and that the landlord will not interfere with that.

The Law:

In Wisconsin there are limited exceptions to the covenant of quiet use and enjoyment.  One of those exceptions is a landlord’s limited right of entry to a tenant’s rental unit.  Specifically, Wisconsin Administrative Code, ATCP 134.09 (2) and sec. 704.05(2) of the Wisconsin Statutes allows a landlord the ability to enter a tenant’s rental unit for the following:

1.   To inspect the premises

2.   To make repairs

3.   To show the property to a prospective tenant or purchasor

ATCP 134.09(2)(c) allows a landlord to enter a tenant’s rental under circumstances other than the three listed above, as long as those circumstances are set forth in a Nonstandard Rental Provisions document (which must be a separate document from the Rental Agreement) that is signed and/or initialed by the tenant.  So if a landlord always conducts inspections of his/her rental units on the first day of spring and fall, or some other date certain that is known in advance, it might be a good idea to list that information in the NSRP.

Wisconsin also requires other conditions to be met prior to allowing a landlord to enter a tenant’s rental unit.  Those requirements include:

-  The giving of advance notice to the tenant (in most situations)

ATCP 134.09(2) requires at least 12 hours advance notice, however some municipalities – such as Madison — have longer notice requirements, so you will need to check the municipal code where your rental is located. 

I reccomend that my clients give this notice in writing to the tenant and slip it under the door of the rental unit (or if time permits mail it to them).  A landlord should keep a copy of this notice for his/her own files in case a dispute should arise as to whether or not the notice was given.  Wisconsin Legal Blank Company, Inc. has a pre-printed form that they sell entitled “12 Hour Notice” that I drafted for this type of situation.

-  Entry must be at reasonable times

I hope it goes without saying that 2 a.m. in the morning is not a “reasonable” time to enter your tenat’s apartment.  While “reasonable times” is not defined in case law, statutes or administrative provisions,  it would be safe to say that entry during normal business hours would most likely be acceptable. 

-  The landlord may not remain in the unit beyond the reasonable amount of time that it takes to inspect the unit, make repairs, or show the unit to a prospective renter or purchasor.

The purpose of entry should be for a specific reason.  Get in.  Do what you need to do.  Get out.

-  A Landlord must announce his or her presence to any person who may be present in the unit and identify himself/herself.

I usually reccomend ringing the doorbell and knocking on the door several times before entering and then announcing loudly that it is “the landlord” and that “I’m here to conduct my bi-annual inspection” or “I’m here to repair your refrigerator” or whatever the reason for my entry might be.  The last thing a landlord wants to do is open the door to his/her tenant’s apartment and find a half-clothed tenant laying on the couch.

The need for providing advance notice and entering at a reasonable time may be disregarded, according to Wisconsin law, if one of the following applies:

1.  A tenant who is aware of the planned time that the landlord intends to enter the unit, requests or consents in advance, to the entry by the landlord

An example of this would be when you tell your tenant that you will be entering his/her unit to change the batteries in the smoke detector on Friday at 3 pm and the tenant tells you to go ahead and enter the night before if you can, as they will be having guests over on Friday at 3 pm.

2.   A health or safety emergency exists

This exception includes many situations, such as if a tenant falls and is injured in their unit and requires emergency aid, when a tree limb falls through the roof, when an infestation of rodents or bedbugs are discovered, during or after a grease fire, etc. etc.

3.  The tenant is absent from the rental unit and the landlord reasonably believes that entry is needed in order to protect the property from damage

This could include situations where a tenant left the water running causing the tub to overflow which is now damaging the bathroom floor and ceiling of the tenant who lived in the unit below.

The Penalties:

Because the above information is contained in ATCP 134, if a landlord violates any of the above provisions, a landlord may be subject to paying the tenant double his/her damages and the tenant’s actual attorney’s fees.  I am also aware of situations where a tenant has claimed that a landlord entered the rental unit without advance notice and stole the tenant’s personal property — this has resulted in the police being called, trespass citations being issued (not properly in my opinion but they were nonetheless issued) and on one occassion a physical altercation between landlord and tenant which resulted in a temporary restraining order being filed and lengthy litigation.

Tenant’s often mistakenly believe that a landlord cannot enter their unit unless they are present.  A tenant’s presence is not required under the Wisconsin Statutes or ATCP 134.  A landlord is allowed to enter a tenant’s rental unit in the tenant’s absence if the above provisions are otherwise followed (and assuming there is no contrary provision in any applicable municipal code).

What should a landlord do if a tenant denies the landlord entry to the apartment?  This happens more frequently then one would think and I am amazed when landlords call me and ask me if they should force their way into the unit.  Technically, a landlord has the right to enter the unit since a tenant is not allowed to deny entry to a landlord who has complied with the proper notice provisions — but step back and take a deep breath — just because you can legally enter does not mean that you should enter.  Why risk a possible altercation?  Who knows what state of mind (or intoxication) an tenant may be in?  Why risk possible injury?  Why risk the police becoming involved.  Wait a couple of days until tempers have subsided and then explain to the tenant why you need to enter the unit and that legally you have a right to do so.  If the tenant still denies you entry, and there is a valid reason for you to enter the unit, then you may want to consider contacting the local police to see if they would be willing to accompany you during the visit.  You should also consider alternate remedies, like eviction. 

While it is important to remember that a tenant has the right to privacy and sole possession of the rental unit, that does not mean that a landlord should ignore his/her investment.  A landlord should conduct regular and periodic inspections of all rental properties.  I personally inspect my rentals twice per year.  I conduct one inspection in early January when I am making my annual change of the batteries in the smoke detector and carbon monoxide detector.  I conduct my second inspection about 6 months thereafter during the month of June.

Had the Virginia landlord referenced in the article I mentioned earlier conducted periodic inspections of his tenant’s rental unit, he would have discovered his tenant’s hoarding problem and possibly been able to prevent $98,000 in damages that resulted.  Don’t end up in the same or similar situation — make sure that you make periodic inspections of your rental properties.

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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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BLOG COMMENT: What If Tenant Does Not Give You Proper Notice To Vacate? . . . and Other Questions.

Apr 5

Posted by Tristan R. Pettit, Esq. in ATCP 134, Rental Agreements | 4 Comments

I recently received a very good question through my blog but because it was posted under my “About The Author” section I don’t think enough people would see it so I decided to reprint it as a post.

THE QUESTION:

Good Morning,
I will start by saying thank you for this forum, I find it very helpful and one of a kind.  I know you must be very busy but I was hoping you could point me in the right direction regarding a question I have.  I am a landlord and I had tenants move without giving a 90 day notice which was one of the provisions I set within their lease.  I think this is a breach of contract and if so can I to take them to court?  Would it still be filed by small claims, and is there a time limit I must file within?  Can I even file for this?  Thanks for your time.

THE ANSWER:

Thank you for your kind words and I am happy to hear that my blog is helpful to you.

You did not mention if your rental agreement was a periodic tenancy (month to month or something similar) or a lease for term (1 year lease etc.).  I will assume that it is the latter.

If a tenant breaks a lease for term and moves out prior to the ending of the term a landlord has a duty to make reasonable efforts to re-rent the unit.  The tenant will remain responsible for paying rent if the landlord is unable to find a tenant to re-rent.  The tenant will also be responsible for paying the costs incurred by the landlord to re-rent the unit.  The applicable statute dealing with this issue is Sec. 704.29, Wis. Stats.

If you have a term lease that states the tenant must give 90 days notice if they plan to move out at the end of the lease term and the tenant completes the lease term and then moves out but fails to give the landlord notice then you have an entirely different situation then when a tenant breaks a lease and moves out early.  In this situation the tenant completed the full term and actually did not breach the lease.  Because it was a lease for term and the tenant completed the full term of the lease the landlord cannot hold the tenant responsible for an additional 3 month’s of rent (over and above the lease term) just becasue the tenant failed to give the 90 day notice — the reason being that the tenant did complete the term of the lease.  Such a notice provision in lease is legal and are included to assist the landlord so that the landlord will be alerted by the tenant if the tenant intend to leave at the end of the term BUT a landlord should not solely rely on the tenant to provide that notice.  It is the landlord’s job to determine whether or not a tenant intends to enter into a new lease after the full term of the initial lease is completed.

It is good practice for a landlord to send a reminder to the tenant prior to the 90 days notice period (or whatever notice is set forth in the rental agreement) and either (1) advise the tenant that the lease will not be renewed and providing the tenant with move out instructions, or (2) include a new lease and ask the tenant to sign the documents and return them within X days if they intend to stay for another term.  If the tenant does not return the newly signed lease to the landlord within the requisite time period then the landlord may choose to follow up with a telephone call to the tenant if s/he wants to but it is not necessary and the landlord may assume that the tenant will not be renewing the lease and the landlord should began to advertise and make efforts to re-rent.

To try and hold the tenant responsible for an additional 90 days rent beyond the completed rental term because the tenant did not provide the landlord with the 90 day notice that they would be vacating at the end of their lease would be in violation of both ATCP 134.09(3) and Sec. 704.15, Wis. Stats., regarding “automatic renewal clauses.”

To address the second issue that you raised in your comment (assuming it is not moot because of the above answer) small claims has jurisdiction over any civil lawsuits that are seeking $5,000 or less in damages.  So if you were attempting to collect 3 months of rent from a tenant (and they have already moved out thus negating the need to file an eviction) then as long as the 3 month’s of rent is less then $5,000 you would file that collection action in small claims.  See sec. 799.01(d), Wis. Stats.  If you were seeking damages greater than $5,000 then you would need to file suit in large claims and pay the higher filing fee.

Addressing the next issue raised in your comment, individual persons are allowed to represent themselves in court whether in large claims or small claims (whether or not that is advisable is a separate question that I will not address).  Business entitites (corporations, LLC’s etc.) are not allowed to be represented in large claims lawsuits by a non-attorney — you would need to hire a lawyer to represent your business entity in large claims. 

In small claims actions, the law carves out a small exception and will allow a business entity to be represented in court by a full-time employee of the business entity.  Sec. 799.06(2), Wis. Stats.  Milwaukee – more than any other county – is enforcing this strictly and requires a copy of a W2 from the employee issued by the entity to verify this.  Managing members or sole members of an LLC are not considered to be a full-time employee of the LLC unless they are paid income by the LLC.

For additional discussion on this topic please refer to my May 15, 2009 post, July 21, 2009 post, July 30, 2009 post, and Sept. 2, 2009 post.

Your final question, asks if there is a time limit in which you must file a lawsuit against your tenants for failure to give the requisite 90 day notice to you prior to vacating.  As I mentioned above, depending on your specific fact situation and the type of rental agreement you are using, you may not even have a claim against your tenant for the 3 month’s rent.  However, assuming you do have a claim it would be a claim for breach of contract and the statute of limitations for breach of contract claim is 6 years from the date of the breach.

I hope that helps

T

SECURITY DEPOSIT TRANSMITTAL LETTERS: How To Draft A Legal 21-Day Letter

Mar 4

Posted by Tristan R. Pettit, Esq. in ATCP 134, Security Deposit | 22 Comments

Security deposit withholding issues are the second most litigated area in landlord tenant law after evictions.  If a landlord makes improper deduction from a tenant’s security deposit, pursuant to ATCP 134 and §100.20, Wis. Stats., the tenant may sue the landlord for double damages and attorney’s fees.  There are numerous published Court of Appeals decisions in Wisconsin dealing with this exact issue.  I would like to offer a few suggestions to landlords which will hopefully keep you from making any improper security deposit deductions.

First, we need to address some basics . . .

A security deposit is defined as “any payment that is given to a landlord as security for the performance of the tenants obligations under the rental agreement.” ATCP 134.01(11).

ATCP 134.06(2), states that “within 21 days after a tenant surrenders the rental property, the landlord shall deliver or mail to the tenant the full amount of any security deposit held by the landlord, less any amounts properly withheld by the landlord.”

If you would like to know what a landlord may legally deduct from a tenant’s security deposit you will want to read my Jan. 17th post.

ATCP 134.06(4), states “If any portion of a security deposit is withheld by the landlord, the landlord shall, within the time period and manner prescribed in sub.(2) – 21 days — deliver or mail to the tenant a written statement accounting for all amounts withheld.  The statement shall describe each item of physical damages or other claim made against the security deposit, and the amount withheld as reasonable compensation for each item or claim.”

I will refer to this written statement interchangeably as either the “security deposit transmittal letter” or the “21-day letter.”

According to ATCP 134 all prepaid rent in excess of one month is legally considered to be a security deposit.  So if you require a new tenant to pay first and last months rent plus a security deposit, legally the security deposit will also include the last month’s rent

Essentially a landlord must either return a tenant’s security deposit or send the tenant an itemization of how the tenant’s security deposit was applied within 21 days after the tenant surrenders the premises.  This is mandatory.  No matter what the situation – even if you are legally entitled to keep all of the tenant’s security deposit – you must still send the tenant a letter explaining to them why you can legally keep it and how it was applied.  There is no situation in which you should not be sending the 21-day letter to a vacating residential tenant in Wisconsin.  Even if common sense tells you it is not necessary (i.e. the tenant told me to use his/her security deposit to pay for the last month’s rent) you should still send out the letter.  If you are wrong the ramification may be expensive.  Be safe – send the letter each and every time. Read the rest of this entry »

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What May A Wisconsin Landlord Legally Deduct From A Tenant’s Security Deposit?

Jan 17

Posted by Tristan R. Pettit, Esq. in ATCP 134, Security Deposit | 50 Comments

I have received many calls from both landlords and managers over the years asking me if they are legally allowed to deduct X, Y, or Z from a tenant’s security deposit.  I fielded such a question just last week – sounds like a good topic for a blog post.

Wisconsin Administrative Code, ATCP 134.06(3) states that a landlord may deduct from a tenant’s security deposit for the following:

1.   Damage, waste, or neglect of the unit

2.   Unpaid rent

3.   Unpaid utilities for which the tenant is responsible

4.   Payment for which the tenant owes for direct utility service provided by a government-owned utility (to the extent that the landlord becomes liable for the tenant’s nonpayment)

5.   Unpaid mobile home parking fees which a local unit of government has assessed against the tenant (to the extent that the landlord becomes liable for the tenant’s nonpayment), and

6.   Other reasons as set forth in a document entitled “Nonstandard Rental Provisions.”

For the majority of landlords and managers out there, items #4 and #5 are not often applicable, so I will focus my attention on the remaining items.

Damage, Waste or Neglect:   There is no bright line rule or definition of what constitutes damage, waste, or neglect.  This is determined on a case-by-case basis and each court commissioner or judge may have a different view on the topic.  The best way to prove that a tenant damaged, wasted or neglected your rental property is to (1) use a “Check-In Check-Out” form and (2) take lots of photographs.

If you want to hold a tenant responsible for damage that they caused to your rental unit then you must first demonstrate that the damage was not pre-existing.  To do this you should take photos of the entire rental unit prior to a tenant moving in.  You should also complete a Check-In form yourself prior to the tenant moving in.  Essentially a Check-In form lists the various rooms and areas of the rental unit and provides space for you to note any damage or problems.  Once the tenant has moved in you should then provide the tenant with a blank Check-In form and ask them to complete it fully, date it, and sign it and then return it to you promptly. Read the rest of this entry »

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