Archive for category ATCP 134

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 | 24 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 | 52 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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Landlords Should Not Play Games With Tenants’ Security Deposits

Jan 7

Posted by Tristan R. Pettit, Esq. in ATCP 134, Caselaw, Security Deposit, Tenant Damage | 33 Comments

A new landlord-tenant decision has been reccomended for publication.  The case of Boelter v. Tschantz involves a tenant suing her past landlord for double damages and attorney’s fees for making improper deductions from her security deposit.  
 
The essential facts are as follows:

1.   Tschantz (the landlord) withheld money from the tenant’s security deposit.

2.   The key deductions that were made were: (1) $323.84 for the tenant’s water bill and (2) $85 to repair a clogged toilet.

3.   After withholding a portion of the tenant’s security deposit to pay her water bill, the landlord then failed to pay the bill timely.  As such, the tenant opted to pay the utility directly to avoid late fees. 

4.   The landlord then sent a refund check to the tenant — three weeks later — for the amount that he deducted from her security deposit to cover the water bill along with a Post-It note that said “Oh, too bad no double damages for you.” 

5.   The landlord then stopped payment on the check prior to the tenant cashing it.

The Court of Appeals held that the landlord violated ATCP 134 as a result of his “game-playing” with the tenant’s security deposit. 

First violation of ATCP 134:  The court held that it was unreasonable for the landlord to withhold money from his tenant’s security deposit in order to pay her water bill and then not use that money to pay the water bill timely.  The court specifically stated, “A landlord cannot indefinitely retain a deposit — merely as a deposit — after a tenant vacates.”  Read the rest of this entry »

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Article and Video Regarding Recent Seminar On Advising and Defending Property Owners in Nuisance Actions

Jul 1

Posted by Tristan R. Pettit, Esq. in ATCP 134, Nuisance Properties, Screening Tenants, Seminars | No Comments

 

On May 7, 2009 I spoke at the State Bar of Wisconsin Annual Convention.  I was asked to speak at the Government Lawyer Division’s seminar that focused on the topic of neighborhoods and nuisance properties.  Specifically I was asked to speak on advising and defending property owners that have nuisance properties.

The State Bar recently published a nice article summarizing my seminar presentation which was published through its online Inside Track newsletter.  A link to the article and a short video of my presentation on the topic of written screening criteria is below.

House rules: Landlords knowledgeable of tenancy laws improves condition of rental properties, neighborhoods (from wisbar.org)

Landlord accountability: Advising and defending the property owner
July 1, 2009 — In this video clip, Milwaukee attorney Tristan Pettit explains the importance of the property owner’s consistent use of written criteria when screening potential tenants. Pettit spoke at the Government Lawyers Division program at the State Bar Annual Convention in May. (from wisbar.org)

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ATCP 134: THE 7 DEADLY SINS – 7 PROHIBITED RENTAL PROVISIONS

Jun 18

Posted by Tristan R. Pettit, Esq. in ATCP 134, Rental Agreements | 21 Comments

Did you know that if you have an illegal provision in your rental agreement that the entire agreement may be unenforceable? Unfortunately this is true. In the case of Baierl v. McTaggart the Wisconsin Supreme Court held that because the landlord’s lease contained an illegal provision, the entire lease could be thrown out. This result can occur even if you never tried to enforce the “illegal” provision as was the case with the landlord in the Baierl case.

In my representation of landlords over the past 14 years, the two most frequent situations in which I have found an illegal provision in a rental agreement were because: (1) the landlord decided to draft his/her own rental agreement and didn’t know that Wisconsin law prohibited him/her from including certain language, and (2) the landlord used a rental agreement that s/he found on the internet that was not drafted by a person knowledgeable about Wisconsin law.

The Wisconsin Administrative Code, Chapter ATCP 134, specifically ATCP 134.08 sets forth the 7 provisions that cannot be included in a Wisconsin residential rental agreement – often referred to as the 7 deadly sins.

You cannot include a provision in your rental agreement that:

1.  Authorizes the eviction of a tenant from the property other than by the judicial eviction process set forth in the Wisconsin Statutes.

Essentially this means that if the tenant refuses to vacate at the end of a lease or after committing a breach, the landlord is not able to engage in self-help eviction. You are not allowed to change the locks so that the tenant is locked out. You are not allowed to remove the door to the apartment. You are not allowed to turn off the heat or electricity to the unit. Nor can you remove the tenant’s belongings and put them on the curb or in a storage facility.

If a tenant refuses to leave your property, the only legal way to have them removed is to file an eviction action against them, obtain a judgment of eviction, and if necessary involve the Sheriff’s Department to physically remove the tenant. Because this is the only legal way to remove a tenant it is illegal to include some other procedure to evict a tenant in your rental agreement.

2.  Provides for the acceleration of rent payments if the tenant defaults or breaches the rental agreement.

Some commercial leases include an “acceleration of rents” clause but such clauses are prohibited in Wisconsin residential leases. So if a tenant breaches their rental agreement the landlord cannot require that the tenant immediately pay all future rent through the end of the term. According to sec. 704.29 of the Wisconsin Statutes, the landlord must attempt to mitigate the tenant’s damages by trying to re-rent the unit. If the landlord is able to re-rent the unit then the breaching tenant will no longer be responsible for the rent once the new tenant moves in and begins paying rent. If the landlord is unable to re-rent the unit then the breaching tenant may very well be responsible for all of the rent through the end of the term, however since the landlord is unable to determine if that will be the case at the time of the breach, the landlord cannot include language in the agreement that the tenant must pay all future rent immediately upon a breach.

3.  Waives the landlord’s duty to mitigate damages.

As I mentioned above, landlord’s have a duty to mitigate a tenant’s damages by trying to re-rent the unit. As such, it is illegal for the landlord to avoid that duty by putting such language in the rental agreement.

4.  Requires the tenant to pay the landlord’s attorney’s fees or costs that are incurred in any legal action or dispute arising under the rental agreement.

This is the illegal provision that I see the most often when reviewing rental agreements. The lease agreements that are sold at OfficeMax and Office Depot contain this prohibited language. This is also the illegal language that was included in the rental agreement at issue in the Baierl case that I reference above.

In a commercial lease it is acceptable to include language that requires a tenant to pay for the landlord’s attorney’s fees and costs however it is not allowed in the residential context. A landlord who prevails in court and has a tenant properly evicted will still be responsible for paying his/her own attorney’s fees. If you are interested in learning more about the Wisconsin Supreme Court’s reasoning you should read the Baierl case here.

5.  Relieves the landlord from liability for property damage or personal injuries caused by the landlord’s negligent acts or omissions.

To put it simply, if the landlord causes damage or injury to a tenant then the landlord will be responsible for it. A landlord cannot remove his/her liability by having a tenant sign a rental agreement waiving that responsibility. For example, if a landlord is aware that the railing on his rental property’s second floor porch is loose and the landlord has not gotten around to repairing it for several weeks, the landlord will be responsible for the tenant’s injuries should he fall off the porch, regardless of what the rental agreement says.

6.  Imposes liability on a tenant for injuries or damages which are clearly beyond the tenant’s control or any damage caused by natural disasters or by persons other then the tenant or the tenant’s guests.

This is very similar to the 5th deadly sin mentioned above but is even broader in scope. The landlord can’t hold a tenant responsible for someone else’s negligence (other than a guest) if the tenant has no control over that person, nor can the landlord hold the tenant responsible for injuries or damage resulting from an act of God.  So if the tenant or the tenant’s guest was negligent and that negligence caused damage or injury to the tenant or his property then the landlord will not be responsible – the tenant would. But if a massive snowstorm damages the rental property or an electrician hired by the landlord improperly wires the unit causing injuries and damage, the landlord cannot hold the tenant responsible regardless of what the rental agreement says.

7.  Waives any other statutory or legal obligation of the landlord to deliver the unit in a fit or habitable condition or maintain the unit during the tenancy.

A landlord has a responsibility to provide the tenant with an apartment that is liveable and safe. A landlord also has the responsibility to repair and maintain the property to insure that it remains safe and liveable. A landlord cannot avoid this responsibility even if the tenant agrees to allow him/her to do so in the rental agreement.

Wisconsin landlords need to make sure their rental agreements do not contain any of these 7 deadly sins. Failure to remove such illegal provisions may result in your rental agreement being declared unenforceable against the tenant and may even expose you to a lawsuit for double damages and attorney’s fees by the tenant.

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