Archive for category Evictions

EXECUTION OF WRIT: Part 2 – The Details

Aug 17

Posted by Tristan R. Pettit, Esq. in Evictions, Execution of Writ, Milwaukee County | No Comments

Last week I provided some basic information about what is involved in the execution of a writ of restitution (eviction) and how the process works.  With this week’s post I wanted to provide everyone with some additional — more detailed — information about the execution process.  I attempted to group these tidbits of info by category.  Much of the information below is specific to Milwaukee County and the Milwaukee County eviction squad.

General

-  The applicable Wisconsin Statute regarding executing a writ is 799.45, Wis. Stats.

-   Milwaukee County Eviction Squad’s phone number is (414) 278-5030. 

-   A typical eviction move-out takes 1 hour.

-   Approximately 15-20 evictions are performed per day.

-   There is both a 1st and a 2nd shift that performs evictions.  The 1st shift arrives at the office around 7 am.  The 2nd shift works until 8 pm.

-   The landlord should alert the Sheriff if any of the following apply: (1) the tenant has mental health issues, (2) there are dangerous dogs residing in the unit, (3) the tenants are believed to be involved with drug dealing, (4) there are guns on the property, (5) the tenant is elderly and/or disabled and has no place to move to or family to assist him/her.

The reason that the Sheriff wants to be notified of (1) – (4) is for the Sheriff’s own safety.  If there is a mentally unstable tenant, dogs, drugs, guns, or some other factor that might result in the increased risk of injury, the Sheriff wants to be notified of this in advance so that they can have back-up near by.  The execution of a writ can be very dangerous.  Tenants who are being displaced from their homes are often emotional (understandably so).  I have heard of Sheriff’s deputies being injured and even killed while performing an eviction.  If a landlord has any inkling that there could be issues during the eviction this should be communicated to the Sheriff’s Department.

The reason that the Sheriff wants to be notified of (5) (if the tenant is elderly and/or disabled and has no family to assist or place to move to) is because the Sheriff will then contact the Department of Aging or a social service agency prior to the eviction so that someone can be on hand to assist the elderly and/or disabled person in locating a safe place.

The best way to notify the Sheriff of any of the above conditions is to attach a note to the paperwork that you are filing with the Sheriff.  This way the clerk can pass that note along to the eviction squad along with the Writ.

-   After the tenant’s property has been removed, the tenant and any other individuals living in the unit will be escorted out of the unit.  The Sheriff will put a placard on the door.  If the tenant returns and enters the unit after the eviction has occurred the police should be called.  The Sheriff cannot make a tenant leave the apartment complex or neighborhood as the Sheriff only has the authority to remove the tenant from the unit.  

Eviction Route

-   The eviction squad performs all evictions on the south side of Milwaukee first and then they move to the north side.

Notification To Landlord

-   The Sheriff will do its best to notify the landlord of the date and time for the eviction on three different occassions: (1) the night before the eviction is scheduled, (2) at 7:30 a.m. the morning of the scheduled eviction, and (3) as they are driving to the property to perform the eviction.

Moving Companies

-   Certain moving companies are used only on certain days of the week in Milwaukee County.  So a landlord does have some control over what day of the week his/her eviction will occur by choosing who to hire as the moving company.  If Eagle Movers has been retained then the Sheriff will schedule the eviction for Monday, Wednesday, or Friday.  If Aetna Movers are hired then the eviction will occur on a Tuesday.  If Dweyer Movers (owned by Eagle Movers) are used then the eviction will be on a Thursday.  Wednesdays are reserved for JC Triplett.

Appliances

-   If the landlord provides appliances with his/her rental unit then the landlord should notify the Sheriff of this.  The landlord should also provide the Sheriff with information about the type of appliances, manufacturer, color etc.  If the Sheriff is not advised of this information and the tenant tells the moving company that the appliances are his/hers, there is little the Sheriff can do to prevent this type of theft.

Storage Lockers

-   If the tenant has property stored in a storage locker which needs to be removed, the Sheriff needs to be told of this.  If the landlord does not know which storage locker is the tenant’s, the Sheriff will not remove any items from any of the lockers as they could be held responsible if they remove items from the wrong storage locker.

Tenant’s Personal Property

-   The Sheriff has the authority to decide what of the tenant’s belongings are of no value (junk) and what is valuable and should be packed and moved to storage.

-   Neither the Sheriff nor the moving company will remove a tenant’s clothing.  This rule is in place for safety reasons because in the past the Sheriff/movers were stuck by needles that were left in clothing.

-   Only large items will be removed.  Smaller items will be left in the unit for the landlord to remove. 

-   If the tenant’s property is infested with roaches, bed bugs, or some other critter, the items will NOT be moved.  Moldy items will also not be placed into the moving truck.  The moving companies do not want to help spread these infestations throughout the city so the removal of such property will be left to the landlord.

-   Once the Sheriff determines what is junk/garbage, the landlord then has a choice to either leave the junk in the property (which the landlord can then remove later) or have the moving company haul everything to the curve (which the moving company will charge the landlord for doing).

-   If a tenant is present, and his/her property is determiend to be of value, the tenant is given a choice as to what should be done with his/her belongings.  The property can be moved and placed into storage (which the tenant will then be required to pay for if s/he wants the possessions back) or the tenant can opt to have his/her property placed at the curb (for the tenant to remove).

-   If a tenant’s personal property is going to be placed into storage, the moving company must put the property into boxes, which the landlord will pay for.  While it is frustrating for the landlord to have to pay for boxes to house the tenant’s property, the moving company cannot just throw the tenant’s belongings haphazardly into the back of the truck for many reasons (safety and liability are two that come to mind).  The property will also be inventoried.

Liability for Execution of Void Writ

-   The Sheriff will be liable to the tenant for any damages resulting from the execution of a writ that was given to the Sheriff  beyond the 30 day period.  The Sheriff will also be liable for any resulting damages if the Sheriff executes a writ beyond the 10 day period.  Wolfe-Lille v. Kenosha County Sheriff, 699 F. 2d 864 (7th Cir. 1983).

Cancellation of Writ

-   Landlord must have the docket number that was giving at the time that the paperwork was filed with the Sheriff, in order to cancel an eviction.  Only the Sheriff and the landlord are given the docket number.  The tenant should NEVER be given the docket number or else s/he could cancel their own eviction.

-   If a landlord cancels an eviction, the Sheriff discards the paperwork.  As a result, a landlord cannot “un-cancel” an execution of the writ.  A landlord should never cancel the eviction with the Sheriff unless they are certain that the tenant has vacated.

Costs of Execution

-   The Sheriff charges $112.50 per hour for their time in executing a writ.

-   The total cost to execute the writ will be based on the actual hours expended by the Sheriff.  The costs will be taken out of the $130 deposit that was previously posted.  Any remaining monies will be returned to the landlord within 4-8 weeks.  If the total cost exceeds the $130 deposit, the Sheriff will send a bill for the overage.

-   The cost of the Sheriff and the moving company are all chargeable to the landlord.  However these costs will be taxed and added to any money judgment that the landlord pursues against the tenant  – whether or not the judgment is collectible, is a whole different issue.

-   The only costs that are the truly the responsibility of the tenant (aside from if the landlord obtains a judgment against the tenant and actually collects on it) are the costs incurred for the storage of the tenant’s belongings after the delivery of the property to the storage facility.

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EXECUTION OF WRIT: Part 1 – The Basics

Aug 12

Posted by Tristan R. Pettit, Esq. in Evictions, Execution of Writ, Milwaukee County | 2 Comments

I have noticed a trend in the last several months of more and more tenants refusing to leave a landlord’s rental property even after the landlord has obtained a judgment of eviction against the tenant and been issued a Writ of Restitution (“writ”).  As a result of this trend more and more landlords are being forced to go through the process of having the writ executed.  The execution of the writ is the process whereby the Sheriff actually removes the non-vacating tenant and returns possession of the property to the landlord.

Background Information:

Most eviction lawsuits have 3 causes of action or claims.  The first cause of action is for return of the rental property.  This is often referred to as the “eviction” portion and in Milwaukee County it is called the “1st cause of action.”  The 2nd and 3rd causes of action have to do with the money that the tenant might owe the landlord.  The 2nd cause refers to the past due rent that may be owed and the 3rd cause refers to any claims for physical damages to the unit and/or holdover damages.  Together the 2nd and 3rd causes of action are often referred to as the “money claims.”

This post will focus on the 1st cause of action generally, and specifically, on what a landlord must do s/he has been granted a judgment of eviction and received a writ of restitution but the tenant continues to reside in the unit. 

A landlord typically obtains a judgment of eviction (and the ensuing writ) in one of three ways.  First, the tenant fails to show for court and the landlord is granted a default judgment.  Second, the tenant appears in court and contests the eviction thus necessitating an eviction trial before a judge.  Assuming the landlord proves his/her case, the landlord obtains a judgment of eviction and is issued a writ.  Third, the tenant appears in court and admits that they are in breach of the lease and the court commissioner or judge grants a judgment of eviction against the tenant based on his/her admission and issues a writ.

Many landlords mistakenly believe that after they obtain a judgment of eviction and a writ that they can then change the locks and toss out the tenants personal property if the tenant fails to leave.  DO NOT DO THIS.  If the tenant fails to vacate the unit, even after there has been a judgment and a writ issued, the only legal way to remove the tenant is to hire the Sheriff and to have the writ executed (sec. 799.45, Wis. Stats.)  If a landlord attempts to illegally evict a tenant (also referred to as a ”self-help” eviction) th elandlord is openeing himself/herself up to either civil or criminal liability, or both.  The tenant can sue the landlord that engaged in a self-help eviction for double damages and attorney fees.  While it may seem “unfair” to require the landlord to expend more time and money after s/he has already obtained a judgment of eviction against a non paying tenant, that is what the law requires.

The Writ of Restitution:

Along with obtaining a judgement of eviction comes the issuance of a Writ of Restitution (writ).  A writ is a document that orders the Sheriff to evict the tenant and anyone else that has occupancy of the rental unit.  The writ also contains additional information that will assist the Sheriff in executing the writ, such as the name and address and phone number of the landlord, the landlord’s attorney, and the defendant/tenant.

In Milwaukee County the court does not give you a writ.  Instead the court gives you an Authorization for Writ.  The landlord must then take that Authorization to the Clerk of Courts and pay $5 in order to obtain the actual writ.  The landlord must then complete the writ and tender it to the Sheriff. 

Each county handles the distribution of the writ differently.  In Waukesha County (at least last time I was there) a landlord is required to return to court the following day to obtain the writ and pay the fee.  The Clerk completes the writ for you in Waukesha.  In Racine County, a landlord should pick up a blank writ from the Clerk of Courts before court, complete all the requested information on the writ, and then present it to the judge when the case is called and the judge will sign the writ.  No fee is required in Racine County.  In Kenosha County, a landlord must go to the Clerk of Courts after court and pay $5 and the Clerk will then complete the writ for you and hand it to you.  It is advisable to talk to the Clerk of Courts in whatever county you own rental property about the process of obtaining the writ before you appear in court.

A writ is only valid for 30 days.  If a landlord does not tender the writ to the Sheriff within the 30 day period the writ will expire and the landlord will need to start the entire eviction process over again in order to remove a tenant that is still residing in the property.  Yep, you heard me correctly.  If the landlord lets the writ expire, the landlord will need to serve the tenant with a new notice, purchase a new summons and have it filed and served on the tenant, appear in court again etc. etc.  Do not let the writ expire!  New landlords (or landlords with no previous eviction experience) should not let a tenant dupe them into not filing the writ with the Sheriff within the 30 day period.  Tenants may tell you that they just need 10 more days, and then another 5 days, and then 3 more days and they will be out, etc. etc.  If all those extra days add up to 30 – the landlord has only himself/herself to blame. 

Executing The Writ:

In Milwaukee County, only the Sheriff can legally execute the writ.  Before the Sheriff will do this however the landlord must hire a moving company.  The landlord must obtain a Letter of Authority from a licensed and bonded moving company and in return the landlord will have to shell out a refundable deposit of approximately $350 to the movers.

Once the landlord has engaged the services of a moving company the landlord should go to the Sheriff’s Department for Milwaukee County and bring along the following items:

1.  The Authorization for Writ

2.  The fully completed Writ of Restitution

3.  $130 deposit to give to the Sheriff

4.  A set of keys to the unit to give to the Sheriff.

By law, once the writ has been delivered to the Sheriff, the Sheriff must execute the writ within the next 10 days (sec. 799.45(5), Wis. Stats.)  Due to the large amount of evictions in Milwaukee, it typically takes the Sheriff the full 10 days.  Oftentimes the Milwaukee County Sheriff will mail the tenant a 24 hour notice the day before the planned eviction to give them one last chance to leave on his/her own.  This notice is not legally required and so it is irrelevant if the Sheriff does not do it for every eviction.  Think of it as a courtesy.

If the tenant still has personal property in the rental unit when the Sheriff arrives to execute the writ ,the Sheriff will then determine what of the tenant’s personal property should be stored by the moving company and what property is considered to have no value and can be disposed of.  After the tenant’s personal property has been dealt with, and if the tenant is still residing in the property, the Sheriff will direct the tenant — and any others residing in the unit — out of the unit and insure that the unit is secure.  If the tenant refuses to leave the unit, s/he will be arrested for Disorderly Conduct.  It should be noted that the Sheriff can make the tenant leave the specific rental unit but cannot make the tenant leave the apartment building or complex.  If the tenant refuses to leave the building then the landlord must call the police.

It is helpful if the landlord or his agent can be present during the eviction to answer any questions that the Sheriff or moving company may have.  I have heard of one instance where a tenant told the Sheriff that the refirgerator and stove in the unit were purchased by the tenant and were his.  This was not the truth.  The landlord was not present during the eviction however to refute the tenant (or to produce the rental agreement to the Sheriff which would have shown that the landord supplied a refrigerator and stove along with the rental) and the appliances were taken off to storage.  The landlord had a difficult time retrieving his property and had to pay a storage fee to get the appliances back.

In smaller counties — those with a population of less than 500,000 – a landlord is allowed to remove, store, and dispose of a tenant’s property himself/herself and the only role that the Sheriff performs is to supervise the landlord.  I have not had any experience with this type of eviction, so I can not provide yu with any more information other than this option is legally available to landlords who own rental property outside of Milwaukee County.

Next week I will blog on some of the smaller details involved with executing a writ that will assist you in the process.

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Judge Siefert to Rotate Out of Small Claims Division in August; Judge Carroll to Replace

Mar 29

Posted by Tristan R. Pettit, Esq. in Evictions, Milwaukee County, Miscellaneous | No Comments

Walking into the courthouse today I ran into an acquaintance of mine who works within the court system.  During our chat I learned that Judge John Siefert, who is currently presiding over the Small Claims Division (which includes all eviction actions) in Milwaukee County, will be rotating to a different calandar come August 1st. 

Judge Jane Carroll will be replacing Judge Siefert as the Small Claims judge.  Judge Carroll is currently presiding at Children’s Court in Wauwatosa.  She is a former District Attorney and has not previously been a judge in the Small Claims Division.

Finally, Some Legislation That Actually Assists Landlords – Senate Bill 607

Mar 11

Posted by Tristan R. Pettit, Esq. in Evictions, Legislation, Notices | 4 Comments

Senators Plale, Hansen, and Lasee introduced Senante Bill (SB) 607 yesterday.  What a breath of fresh air it is to read this bill.  Rather then making landlords jump through more and more hoops to protect our tenants and rental property, this bill actually assists us in doing our jobs.  I am so used to blogging about proposed legislation that hurts (or at the very least hinders) landlords that this is a nice change.

If passed, this bill will allow a landlord to terminate a tenant’s tenancy, regardless if they are a month-to-month tenant, tenant under a lease for 1 year or less, or a tenant with a lease for more than 1 year, if the tenant or the tenant’s guest, commits certain crimes, in property or near the property.

Currently if you have a tenant under a lease for one year or less or more than one year (as opposed to a periodic tenancy like a month-to-month) and if that tenant commits a crime you are legally prevented for terminating that tenant’s tenancy and evicting them.  The current law states that if a tenant under a lease commits a breach (including criminal activity) that they landlord MUST serve them with a 5 day notice that allows the tenant the opportunity to cure the breach. 

Currently the only two exceptions to the above, are the very limited situations in which the tenant has created a gang or drug nuisance at the property AND the landlord has received a written notice of drug or gang nuisance from a law enforecement agency.  Only in these two limited circumstances can a landlord serve a 5 day notice on the tenant that does not afford the tenant the right to cure the breach.

To better illustrate the current status of the law, here is an example: 

Tenant A gets drunk and runs around the apartment complex brandishing a gun and threatening to shoot anyone that he passes.  Assuming that Tenant A is not arrested and hauled off to jail,  Tenant A’s landlord is not legally allowed to terminate Tenant A’s tenancy and file an eviction action as a result of this criminal behavior if Tenant A is under a lease for one year or less or a lease for more than one year.  The only legal recourse that the landlord has is to serve Tenant A with a 5 day notice which affords Tenant A with the opportunity to cure the breach (the criminal activity) or vacate.  How does Tenant A cure the breach?  By not running around the apartment complex within the next 5 days brandishing a gun and threatening to shoot people.  Ridiculous I know, but that is all Tenant A must do to cure his breach and if he does that, the landlord is legally required to keep him as a tenant as long as the tenant is under a lease. Read the rest of this entry »

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Milwaukee County Eviction Court to Alter Court Times During Flu Season

Oct 23

Posted by Tristan R. Pettit, Esq. in Evictions | No Comments

A friend of mine who works in the courthouse sent me an email today which she asked that I pass along to my clients and friends in the rental industry.  Apparently in an attempt to reduce crowding during the flu season Milwaukee Co. Eviction Court has decided to have certain plaintiffs, based on the spellling of their last name or company name, to appear on intial appearances at 3 pm rather than 2 pm.
Below is the email info I received: 
 
TO ALL PLAINTIFFS in Small Claims eviction cases, effective 10/26/09
  
If you are a business whose name begins with A thru K or an individual whose last name begins with A thru K, your case will be scheduled in Room 400 at 2:00 p.m.
 
If you are a business whose name begins with L thru Z or an individual whose last name begins with L thru Z, your case will be scheduled in Room 400 at 3:00 p.m.

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Newly Revised 5-Day Notice To Pay Rent or Vacate Now Available at Wisconsin Legal Blank

Oct 8

Posted by Tristan R. Pettit, Esq. in Evictions, Notices, Rental Documents | 1 Comment

As many of you know I am the author of the set of Landlord-Tenant forms that are sold at Wisconsin Legal Blank Co., Inc.  I am currently in the process of reviewing and updating all of the L-T forms as well as creating a few new ones.  At this time however, I wanted to alert you that the revised 5-Day Notice to Pay Rent or Vacate is now available for sale at WLB.

Essentailly the revisions to the Notice include the following:

-  I have added language that states that the tenant will still be in default and subject to eviction if they make only a partial payment and/or make a full payment after the 5 day cure period has elapsed.  It is my hope that by adding this language it will better protect a landlord that accepts a partial payment or late payment from having their eviction lawsuit dismissed based on a legal theory called “waiver.”

          NOTE:  The best way to avoid a “waiver” arguement is to not accept any partial payment or any payment that is made after the 5 day period has elapsed.  Having said that, I am aware that it is very difficult for a landlord to turn away money that s/he is almost certain to never see again if the landlord is evicting a tenant.  So if you decide that you want to keep the partial or late payment then the next best option to avoid the tenant prevailing on a “waiver” argument is to place the payment in escrow  – do not cash the check!! — and send the tenant a letter — which I refer to as a “No Waiver” letter — which essentially says that the landlord has received the partial or late payment and that the money will be held in escrow until after the court has decided whether or not to grant the eviction.  The ‘No Waiver” letter should also state that the money will be appplied to any past due amounts owed after the eviction has been decided and that by holding the money in escrow the landlord is not waiving his/her right to continue with the eviction against the tenant and that it is the landlord’s intent to proceed with the eviction and have the tenant evicted.  The new language added that has been added to the revised 5-Day Notice now available at WLB has been added as a “safety net” should the landlord not follow one of the two options set forth above. Read the rest of this entry »

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MILWAUKEE CO. SMALL CLAIMS COURT’S NEW POLICY REGARDING WHO MAY APPEAR IN COURT ON BEHALF OF A LLC WENT INTO EFFECT SEPTEMBER 1st.

Sep 2

Posted by Tristan R. Pettit, Esq. in Evictions, LLC's | No Comments

I was attending the regular monthly meeting of Milwauke RING (Real Estate Investors Networking Group) last night and during the “open mic” portion of the meeting I reminded everyone that Milwaukee County Small Claims Court’s new policy regarding who may appear in court (i.e. sign court documents and appear in court) went into effect yesterday, September 1, 2009.  As I was walking back to my seat two people asked me what that would mean.  After the meeting several landlords that own a large number of rental properties also approached me and said they had never heard of this new policy.

Because of this major change and the fact that many people either are not aware of it or do not understand the change I thought it would be prudent to explain what this new policy is before some unsuspecting landlord or management company ends up having their eviction lawsuit dismissed. Read the rest of this entry »

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