Archive for category Caselaw

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, Uncategorized | 5 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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Oral Arguments On Important Landlord Case To Be Heard on January 6, 2010

Jan 4

Posted by Tristan R. Pettit, Esq. in AASEW, Caselaw, Landlording, Tenant Damage | No Comments

The Wisconsin Supreme Court will hear oral arguments on the case of Maryland Arms L.P. v. Connell on Wednesday, January 6, 2010.  This is a very important case for landlords as the decision will affect a landlord’s ability to contract with his/her tenant.

You can learn what the case is about by reviewing my earlier posts from May 28, 2009 and October 15, 2009.

Oral arguments will be streamed at http://wisconsineye.org for those that wish to watch.

The exact time that for the Maryland Arms arguments is unknown.  The case is scheduled to be heard second.  The first case starts at 9:45 am.  More than likely — and assuming everything runs on schedule – the case will be argued before 11 am.

For those of you new to oral arguments, the Wisconsin Supreme Court justices will allow each side to summarize their arguments (which have already been submitted via briefs).  The justices will also interrupt the attorneys in order to have them answer specific questions that the justices may have or to attempt to get the attorneys to concede certain arguments.  Sometimes the grilling by the justices can be harsh.  The justices will not issue a final decision on Wednesday.  A final decision will be issued many months later in writing.

The AASEW, along with three other Wisconsin apartment associations, hired legal counsel to submit an amicus curiae brief setting forth the concerns of the apartment industry as a whole, with regard to the specific facts of this case.  The lawyer for the apartment associations will also be allowed time to present our argument to the justices.

MARYLAND ARMS CASE WILL BE REVIEWED BY WISCONSIN SUPREME COURT

Oct 15

Posted by Tristan R. Pettit, Esq. in Caselaw, Rental Agreements, Rental Documents | No Comments

In my May 28, 2009 post I wrote about the then recently published Wisconsin Court of Appeals case of Maryland Arms Limited Partnership v. Connell, 2009 WI App 87, __ Wis.2d __, 769 N.W.2d 145. 

This was an important case because a divided Court of Appeals held that a tenant could not be held responsible for the damages that resulted after her hair dryer caused a fire which resulted in thousands of dollars of damage to her landlord’s rental property. 

A key fact in the case was that the landlord agreed that the tenant was not negligent in causing the fire becasue she had no prior knowledge of the hair dryer being faulty.  Another key fact in the case was that the tenant’s lease contained a provision that stated that the tenant would be responsible for all damages that were in any way caused by the acts of the tenant.  The Court of Appeals held that such a lease provision was void.

The landlord in this case has petitioned the Supreme Court of Wisconsin to review the the case and the “Supremes” have agreed to hear the case.  Oral arguments are to be held on January 6, 2010 and it is expected that a decision will be issued sometime in 2009-2010 term.

One of the main issues that the Wisconsin Supreme Court will have to decide is whether or not a landlord can contractually make a tenant liable for damage in a situation where the tenant is not negligent in causing the damage.

This will be an interesting case to watch and I will keep you updated as I learn more.

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LATE FEES – PART 1: WHAT AMOUNT CAN YOU CHARGE?

Jun 6

Posted by Tristan R. Pettit, Esq. in ATCP 134, Caselaw, Late Fees | 11 Comments

Many of my clients ask me what amount they should charge a tenant who is late in paying rent. Many also wonder if there is a maximum amount beyond which they would not be allowed to charge as a late fee.

The only legal guidance we have as to what amount is acceptable as a late fee is the case of Three & One Co. v. Geilfuss, 178 Wis.2d 400, 504 N.W. 2d 393 (Ct. App. 1993). This 1993 Court of Appeal decision is not even specifically about the issue of late fees but rather addresses the issue of “waste” (when a tenant intentionally damages the rental property) and what amount of damages a landlord may recover against a tenant that commits waste on the landlord’s property. Nonetheless the Court in Geilfuss does state in its opinion that the late fee of $50 per month charged by the landlord was properly assessed against the tenant. Thus, we as landlords know that at least the Wisconsin Court of Appeals has upheld a late fee of $50 per month. Read the rest of this entry »

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COURT OF APPEALS SAYS TENANT NOT LIABLE FOR FIRE DAMAGE

May 28

Posted by Tristan R. Pettit, Esq. in Caselaw, Tenant Damage | 2 Comments

The court of appeals recently released its decision in the case of Maryland Arms Limited Partnership v. Connell. This decision has been reccomended for publication.  The issue in this lawsuit was whether the landlord or the tenant should be liable for damage to an apartment unit when the damage was not caused by the negligence of either the landlord or tenant.  The Court of Appeals held that it is the Landlord that should be held liable in such a situation.  As such the case will now stand for the proposition that a tenant cannot be held liable for his/her actions that damage the property unless the damage is caused by the tenant’s negligence Read the rest of this entry »

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NEW PUBLISHED CASE ON EMERGENCY ASSISTANCE STAYS

May 1

Posted by Tristan R. Pettit, Esq. in Caselaw, Chapter 799, Emergency Assistance | 4 Comments

We will soon have a published Wisconsin Court of Appeals decision on the issue of emergency assistance stays in eviction actions that will assist us as landlords in removing the non-paying tenant. Read the rest of this entry »

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