Archive for category Mandatory Rental Inspections / Landlord Licensing

CITY’S MOTION TO DISMISS LANDLORDS’ LAWSUIT DENIED BY THE COURT – LAWSUIT CONTINUES

Jun 4

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Mandatory Rental Inspections / Landlord Licensing | 4 Comments

On May 21, 2010, Judge Timothy Wotkowiak, denied the City of Milwaukee’s motion to dismiss the lawsuit filed by three Milwaukee landlords who sued the city as a result of its newly enacted ordinance requiring mandatory rental inspections of rental housing in two areas of the city.

For background information on the ordinance that went into effect on January 1, 2010, please read my November 24, 2009 post.  For background information on the lawsuit that was filed against the city you can refer to my December 31, 2009 post.  And for information about the city’s motion to dismiss and arguments both for and against the motion I would direct you to my May 4, 2010 post.

As stated in my earlier post, the plaintiff landlords made three key arguments as to why it was not necessary for them to serve the city with a formal Notice of Claim prior to initiating the lawsuit.  Judge Witkowiak agreed with the arguments offerred by the landlords on all three issues.

Issue #1: 

The court indicated that it was not practical to require the landlords to serve the city with a formal Notice of Claim — which would have allowed the city 120 to respond — in part because of the basis of the lawsuit.  The landlords’ lawsuit included the filing of a temporary restraining order to stop an immediate harm (the carrying out of the ordinance) and to make the plaintiffs wait for 120 days before they could even file suit would not be practical or just as the city would have been able to implement what is argued to be an unconstitutional program for at least 120 days before a court could review the issues and concerns with the ordinance.

Issue #2:

The court found that the city did have actual notice of the claim even though a formal notice was not served upon it.  Judge Witkowiak spent considerable time pointing out all of various contacts made by landlords, the Apartment Association of SE Wisconsin (AASEW) , and others which provided the city with actual notice of the concerns with the ordinance.  The court made reference to the letter that the AASEW’s lawyers (who also happen to represent the three plaintiff landlords)sent to City Attorney Grant Langley outlining the many problems with the proposed ordinance.  The court also referred to the letter that I wrote as President of the AASEW to Common Council President Willie Hines and the city’s other alderman, expressing the association’s many concerns with the ordinance.  The aformentioned letters, along with a DVD of the public hearing held before the ZND committee of the Commom Council, were all attached to the plaintiff landlords’ brief in opposition to the city’s motion to dismiss, and appeared to carry great weight with the Court.

Issue #3:

Judge Witkowiak also stated that the city sufferred no prejudice by not having been served with a formal Notice of Claim by the plaintiffs.  The city appeared to argue that it was prejudiced because it had to prepare its legal defense to the lawsuit and that somehow that was to be considered sufficient prejudice to grant the city’s motion.  I have heard a lot of “out there” arguments during my 15 years of law practice, but that was a new one, for me.  The court properly determined that that was not the type of “prejudice” that the city needed to demonstrate in order to prevail on its motion.

As such a result of this decision, the plaintiff landlords’ lawsuit will now move forward and address the actual problems with the ordinance.

A Scheduling Conference has been set for June 15, 2010.  On this date, the court will provide deadlines for the parties to complete various matters that will assist in moving the case forward, such as deadlines to complete discovery (the fact gathering process), deadlines to file dispositive motions (motions that could end the case without the need for a fact-finding trial), and other matters.

Based on the comments of the attorney’s for both the city and the plaintiff landlords it appears that both sides may very well be contemplating the filing of a dispositive motion — such as a summary judgment motion — which would allow the court to decide the lawsuit as a matter of law, without the need for a fact finding trial, because there are no material facts that are in dispute.

I will keep you up to date on the status of the lawsuit as I learn more.

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Update On Landlords’ Lawsuit Against City of Milwaukee and Its Rental Inspection Ordinance

May 4

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, DNS, Mandatory Rental Inspections / Landlord Licensing | No Comments

There has not been a lot of media reporting on the lawsuit brought by three landlords against the City of Milwaukee and its rental inspection ordinance so I thought I would take the time to update you on its status.

If you are unfamiliar with the basics of the lawsuit you should refer to my earlier post on the topic.

The City of Milwaukee has filed a Motion To Dismiss the Landlords’ lawsuit.  Essentially the City is arguing that the lawsuit against it should be dimissed because the City was not provided the proper notice of the landlords’ claims prior to the lawsuit being filed.  In Wisconsin, if a person wants to sue a government entity – which would include the City of Milwaukee — the law states that prior to the lawsuit, the government entity must be served with a Notice of Claim.  The City then has 120 days to review that Notice and either attempt to settle the claim or deny the claim.  If the City does not deny the claim within the 120 days it will be deemed denied anyway.  After the 120 days have passed, a person then has 6 months in which to file the lawsuit.  If more than 6 months passes then the person would be precluded from filing the lawsuit.

The reasoning behind what is called the “Notice of Claim” statute (Sec. 893.80, Wis. Stats.) is allegedly to allow the government an opportunity to settle a claim in order to avoid expensive litigation.  A secondary reason for the requirement is to provide the government with enough information so that it can budget accordingly for settlement or litigation.

As a quick aside: I have sued a government entity on behalf of a client in the past so I am familiar with the Notice of Cliam statute.  In my opinion the government does very little during the 120 days after it is served notice.  The typical reaction is to ignore the claim and not even take the time to deny it but rather to allow the 120 days to pass after which the claim will be automatically denied. In fact, I would even go so far as to say that based on my experience that the government typically ignores the Notice of Claim that is served upon it just to see if the aggrieved person will actually file a lawsuit.  It costs very little to file a Notice of Claim (which often is done without the assistance of an attorney) but it is expensive to file a lawsuit.  The government has little to no interest to pay money to someone unless it knows the individual who filed the claim is serious.  Essentially the Notice of Claim statute is a “legal hoop” that the government makes you jump through to see how high you will jump.  There may little to no reason for you to jump, but nontheless, jump you must.

So the City of Milwaukee is arguing that the plaintiff landlords’ didn’t file the Notice prior to filing the lawsuit and therefore their lawsuit should be dismissed.

In its response brief, the plaintiffs argue that a formal notice of claim need not always be served as there are exceptions to this requirement.  The plaintiff landlords rely on a recent Court of Appeals decision, Kuehne v. Burdette, which held that the Notice of Claim statute does not always require a formal notice of claim to be served nor is it always required for a plaintiff to wait 120 days before filing a lawsuit against the government. 

The plaintiff landlords make three key arguements in their brief in opposition to the City’s motion to dismiss:

1.     Because the City’s Rental Inspection Ordinance became law on January 1, 2010 — just 22 days after it was passed by the Common Council —  and because the nature of the lawsuit is to determine whether or not the ordinance is constitutional, the plaintiffs were unable to comply with the notice of claim statute.

2.     The City had actual notice of the claim even if a formal notice of claim was not served on it.

3.     The City sufferred no prejudice as a result of the plaintiffs filing the lawsuit without first filing a formal notice of claim.

The plaintiffs’ first argument is very similar to the one made in the Kuehne case.  In Kuehne, five residents of a town filed an injunction against the Town of Ledgeview in order to prevent it from holding a referendum on whether or not the town should incorporate.  The court in Kuehne stated that the notice of claim statute probably did not apply in the context of the lawsuit because it is illogical that a town can use lack of notice as a defense when the Town by its own actions made compliance with the notice of claim statute impossible. 

The plaintiff landlords argue that the exact same situation in Kuehne is at play in the lawsuit against the City of Milwaukee.  The City adopted the new ordinance and Mayor Barrett signed it into law 22 days later.  If the plaintiffs had been required to file a notice of claim the City would have been under no legal obligation to respond to the notice until approximately May 1, 2010.  By that time the rental inspection ordinance would have been in effect for a minimum of 4 months without a court being allowed to examine the constitutionality of the ordinance.  The City can’t use the notice of claim defense in order to allow it to move forward with its unconstitutional ordinance.

The plaintiffs’ second argument is that they City had actual notice of the claim because the plaintiffs, through the actions of the AASEW, advised the City of its concerns and objections to the proposed ordinance as eary as October 29, 2009.  On October 29th yours truly sent a letter to the Common Council pointing out the various constitutional problems with the ordinance.  Additionally, the AASEW’s attorney (who is also the attorneyfor the plaintiff landlords) also sent a letter to the City Attorney on the same date setting forth the myriad of problems with the proposed ordinance.  Additionally there were numerous communications between the AASEW, its attorneys, and the alderman that sponsored the ordinance (Nic Kovac) and the DNS Commisioner.  So the City had actual notice of the plaintiffs’ claims approximately two months prior to the filing of the lawsuit.  By contrast, in the Kuehne case the plaintiff gave notice to the Town on the same day as the lawsuit was filed and the Court of Appeals found that notice to have been sufficient.

Finally, the plaintiffs argue that the City was not prejudiced by the lack of a formal notice of claim.  If the purpose of the notice requirement is to allow a government entity time to potentially resolve a claim, the fact that the AASEW 9of which the plaintiffs are members) notified the City of the problems with the ordinance and even met to discuss the potential problems, demonstrates that the City had the opportunity to resolve the issue if it wanted to.  In essence the City is arguing that the plaintiff should be required to jump through the legal hoop for the sake of jumping rather than because the jumping serves an actual purpose.

The City was allowed the opportunity to have the last word so it did file a reply brief to the plaintiffs’ brief in oppostion to the motion to dismiss.

I would point out that even if the City should prevail on its motion to dismiss, all that this will do is cause delay.  A notice of claim has already been filed and served on the City (just in case) and another lawsuit will be filed if needed.  So essentially the City’s motion, if successful, will just delay things rather then address the underlying issue –  whether or not the rental inspection ordinance is constitutional as written.

A hearing on the City’s motion to dismiss is scheduled to be heard before Judge Timothy Witkowiak on May 21, 2010 at 9:30 am in room 412 of the Milwaukee County Courthouse.  The hearing, as most legal proceedings are, is open to the public.  For those of you unable to attend, I will provide you with an update hopefully during the week of June 1st after I have returned from my upcoming wedding and honeymoon.

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DNS Has Started To Implement The New Residential Rental Certificate Program

Jan 8

Posted by Tristan R. Pettit, Esq. in DNS, Legislation, Mandatory Rental Inspections / Landlord Licensing | No Comments

As many of you know the City of Milwaukee’s new Residential Rental Certificate Program ordinance went into effect January 1, 2010. 

It is my understanding that the letter notices, along with a date for the inspection of your rental unit/s, the application, were all mailed out to affected landlords during the week of Dec. 28th — so those of you in the two designated areas should have received your mailing by now – Merry Christmas.

In anticipation of the many questions about the Residential Rental Inspection (RRI) Program the Department of Neighborhood Services (DNS) has added a new FAQ page to its website regarding the program.  The web page also contains a link to a map of the two affected areas, a link to the RRI Application form and a link to the Pre-Inspection Checklist.

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Landlords Sue City of Milwaukee To Stop Residential Rental Certificate Ordinance

Dec 31

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Legislation, Mandatory Rental Inspections / Landlord Licensing | 1 Comment

On December 29, 2009, three landlords filed a lawsuit against the city of Milwaukee in an attempt to stop the new Residential Rental Certificate Ordinance that was recently passed. 

The lawsuit includes a complaint, motion for temporary injunction, ex parte motion for temporary restraining order (TRO) and supporting affidavits.  Essentially, the plaintiffs are arguing that the ordinance as written is (1) unconstitutionally vague, (2) contains fatal defects, (3) fails to provide for an impartial review and (4)interferes with their constitutional right to contract with their tenants.

I would suggest that you read the entire lawsuit but I will attempt to summarize the plaintiffs’ main arguments.

1.    1st claim: The ordinance is unconstitutionally vague

The plaintiffs’ argue that the ordinance contains terms and phrases that are so vague that they do not properly notify landlords owning rental properties in the two designated areas as to what specific conditions will result in a denial of a residential rental certificate or the revocation of a certificate.  The ordinance gives the DNS Commissioner and his inspectors the subjective power to determine whether the conditions in a rental unit constitute a denial or revocation of the certificate.  This subjective power will result in a non-uniform application of the ordinance.

The plaintiffs cite 7 examples within the ordinance where the landlord does not have sufficient notice as to what specific conditions or number of conditions will trigger a denial or revocation of a rental certificate by the city.

2.     2nd claim:  The ordinance contains fatal defects

Basically this argument states that the ordinance as written contains terms which are unclear, have no definition, and fail to set forth clear standards for which a rental certificate will be granted.  Additionally it is argued that the ordinance gives the DNS Commissioner and his inspectors the arbitrary power to grant, deny or revoke a rental certificate without providing specific standards as to how that discretion should be used.

The plaintiffs provide 9 examples within the ordinance where significant terms are not defined or are unclear.  Essentially their argument is that the standard as to what will casue the issuance of a rental certificate is a subjective standard contained only in the minds of the Commissioner and his inspectors (and essentailly that the subjective standard will most likely vary from one inspector to the next).  This argument also focuses on the fact that the ordinance allows for the DNS Commissioenr to draft rules or regulations  which have not been made a part of the ordinance.  This means that the Commissioner could change the rules at any time and without providing owners prior notice of the changes.  The rules and regulations are not required to be made publicly available since they are not contained in the ordinance itself.

3.     3rd claim:  Failure to provide impartial review

Under the ordinance as written if a landlord does not agree with the decision rendered by the city inspector, the landlord can appeal that decision to the Commissioner of DNS — the employer of the inspector that made the intial decision.  The plaintiffs argue that as written the ordinance allows the individual and agency that made the unwritten rules for inspection and then subjectively applied those rules, to also act as the decision-maker for the review of any contested determination.  Wisconsin Statutes Sec. 68.11(2) require that all municipalities provide an “imparital decision-maker . . . who did not participate in making or reviewing the initial determination” to preside over any review.

4.     4th claim: Interference with the constitutional right to contract

According to the ordinance, all rental units within the two designated areas will be required to have a rental certificate in place (if there is a tenant residing in the unit) as of January 1st, 2010 — Friday.  If no certificate is in place by 1/1/10 then the owner of the rental will be in violation of the ordinance as written.  The argument made by the plaintiffs is that since the ordinance does not provide for the rental certificates to be issued until after an inspection takes place (which will be at least 30 days after 1/1/10) that landlords will be forced to terminate the tenancies of their tenants or else be in violation of the ordinance.  By being forced to issue a termination notice to their tenants, the plaintiffs argue that the city isinterfering with the landlords and tenants rental agreement – and by doing so they are interfering with a landlords right to enter into a contract with his/her tenant.

The plaintiffs are asking that the court to temporarily enjoin the city from enforcing the residentail rental certificate ordinance.  They are also asking the court to issue an order declaring that the ordinance is invalid.  Finally the plaintiffs are asking the court to permanatly enjoin the city from enforcing the ordinance.

This lawsuit has been tabbed to Judge Timothy Witkowiak.

A hearing on the plaintiff’s motion for a temporary restraining order was held earlier today before Judge Timothy Dugan.  Judge Dugan denied the landlords’ motion for a TRO without reaching the underlying problems with the ordinance.  One of the requirements in order to be granted a TRO is that some “irreperable harm” must be demonstrated.  Judge Dugan felt that becasue no landlord has been issued a citation by the city and because the city has not tried to remove any tenant from the plaintiff’s’ rental units, as of yet, that the plaintiffs failed to demonstrate any irreperable harm.”

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Mayor Signs Milwaukee’s Residential Rental Certificate Program Ordinance

Dec 11

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Legislation, Mandatory Rental Inspections / Landlord Licensing | No Comments

About 1 hour before the close of business yesterday, December 10, 2009, Mayor Tom Barrett signed the city of Milwaukee’s Residential Rental Certificate Program ordinance into law.  Mayor Barrett left everyone waiting and wondering if he would sign it as the deadline to do so was the close of business yesterday.

The ordinance can be read in its entirety here.

The Preinspection Checklist can be found here.  The checklist gives a detailed overview of all items that DNS will be inspecting when they come knocking in 2010.  The landlords in the two designated areas will probably get pretty familiar with that checklist during the next 5 years of the “pilot program.”

The ordinance will go into effect as of January 1, 2010.

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AASEW Continues To Fight Against The City of Milwaukee’s Residential Rental Certificate Program

Dec 7

Posted by Tristan R. Pettit, Esq. in AASEW, Legislation, Mandatory Rental Inspections / Landlord Licensing | 1 Comment

The Apartment Association of Southeastern Wisconsin, Inc. (AASEW) continues its attempt to defeat the recently passed ordinance creating a Residential Rental Certificate Program in two areas of the city.  On December 7, 2009, the AASEW issued a Press Release urging the mayor to veto the legislation in order to avoid expensive litigation. 

Additonally, President of the AASEW Tristan Pettit wrote a letter to Mayor Tom Barrett pointing out many of the legal problems with the ordinance.  A similar letter was sent to the members of the Common Council  prior to their vote last week – which went ignored.  The letter specifically delineates 6 of the many structural and legal problems with the ordinance and encourages the mayor to veto the legislation in order to spare the city the time and expense of defending the poorly drafted legislation in court.

The Mayor has until the close of business on Thursday, December 10, 2009 to sign the legislation or else it would go back to the Common Council for reconsideration.  If the Mayor vetoes the ordinance then the Common Council would have to garner 10 votes (from the 15 members) in order to override the veto.

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MILWAUKEE’S RESIDENTIAL RENTAL CERTIFICATE ORDINANCE PASSES

Dec 1

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, Legislation, Mandatory Rental Inspections / Landlord Licensing | 1 Comment

Earlier today by a vote of 9-5 the city of Milwaukee’s Residential Rental Certificate Program ordinance was passed by the Common Council. 

Voting in favor of the new ordinance were Aldermen Ashanti Hamilton (1st district), Nic Kovac (3rd district), Robert Bauman (4th district), Milele Coggs (6th district), Willie Wade (7th district), Robert Puente (9th district), Michael Murphy (10th district), Terry Witkowski (13 district), and Willie Hines, Jr. (15th district). 

Voting against the ordinance were Aldermen James Bohl, Jr. (5th district), Robert Donovan (8th district), Joe Dudzik (11th district), James Witkowiak (12th district), and Tony Zielinski (14th district).

Alderman Joe Davis, Sr. was not present and did not vote.

There was very little discussion on the proposed ordinance prior to its vote.  Alderman Kovac (the primary sponsor of the ordinance) spoke in favor of the revised ordinance and gave a summary of the revisions that were made.  Alderman Robert Donovan then spoke out against the ordinance and summarized some of the criticism that citizens had with the proposal as expressed at the public hearing earlier.  Alderman Murphy then spoke in favor of the ordinance and emphasized that it is a pilot program that will be reviewed each year.

If you are interested in viewing the video recording of the vote and other related information just click here.

This new ordinance will make it mandatory for all landlords who own rental property in two designated areas of the city (the UWM area on the city’s east side and the Lindsay Heights neighborhood on the city’s north side) to apply for a rental certificate in order to continue renting out their rental properties.  When applying for the certificate the owner will need to pay a $85 per unit fee and allow an inspector from the city’s Department of Neighborhood Services to inspect the interior of the unit.

For more detailed information on this ordinance please refer to my prior post.

The AASEW was opposed to this ordinance and had hired legal counsel to point out the various legal problems with the ordinance and its drafting to the ordinance’s sponsor, Alderman Nic Kovac.  On a positive note, the original ordinance that was proposed was revised to address some of the issues and concerns that were brought to light by the AASEW.   A copy of the newly enacted ordinance (Proposed Substitute C) can be read in its entirety here.

The Department of Neighborhood Services also put together a Residential Rental Inspection Program Preinspection Checklist which it is assumed will be sent to the owners of rental property in the two designated areas prior to the inspection.  This checklist sets forth the specific types of violations that DNS will be looking for during its inspection.  While the checklist is still pretty extensive it is still better then just having the subjective term ”disqualifying violation” in the ordinance as was the case with the prior version.

This ordinance will become effective January 1, 2010.

As this ordinance is phased in please let me know your thoughts as to how it is being implemented.  This is a pilot program and it will be reviewed annually so any and all input from affected landlords is vital.

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