Archive for category Legislation

Act 76 – Wisconsin’s New Landlord Tenant Law – Part 5: Domestic Violence Notice Langauge & More Prohibited Rental Agreement Provisions

Act 76 has made many changes to Landlord-Tenant law in Wisconsin, some of which I have explained in prior blog posts.  One of the biggest changes, which I have not yet blogged about, is the requirement that a landlord include language notifying tenants of certain domestic abuse protections in all rental agreements or addenda as of March 1, 2014.

The required language is set forth in sec. 704.14, Wis. Stats. and must be included verbatim in the rental agreement - it cannot be modified or summarized.

The language that must be included is:

 

NOTICE OF DOMESTIC ABUSE PROTECTIONS

(1) As provided in section 106.50 (5m) (dm) of the Wisconsin statutes, a tenant has a defense to an eviction action if the tenant can prove that the landlord knew, or should have known, the tenant is a victim of domestic abuse, sexual assault, or stalking and that the eviction action is based on conduct related to domestic abuse, sexual assault, or stalking committed by either of the following:

(a) A person who was not the tenant’s invited guest.

(b) A person who was the tenant’s invited guest, but the tenant has done either of the following:

1. Sought an injunction barring the person from the premises.

2. Provided a written statement to the landlord stating that the person will no longer be an invited guest of the tenant and the tenant has not subsequently invited the person to be the tenant’s guest.

(2) A tenant who is a victim of domestic abuse, sexual assault, or stalking may have the right to terminate the rental agreement in certain limited situations, as provided in section 704.16 of the Wisconsin statutes. If the tenant has safety concerns, the tenant should contact a local victim service provider or law enforcement agency.

(3) A tenant is advised that this notice is only a summary of the tenant’s rights and the specific language of the statutes governs in all instances.

 

Unfortunately many landlords are not even aware of this new requirement.  Others complain that this will make their rental agreements 1/2 page longer.  Depending on formatting – this very well may be true.  Nonetheless, any rental agreements that are entered into or renewed as of March 1, 2014, must include this language.  If your rental agreement does not contain this language you your rental agreement will be declared void and unenforceable.

Why is that you ask?  Keep reading.

Act 76 also modified and created additional provisions that cannot be included in a Landlord’s rental agreement.  If a landlord includes any prohibited provision in his/her rental agreement the lease will be void and unenforceable.  I affectionately refer to these illegal provisions as the “10 Deadly Sins.”

Act 76 created the 10th Deadly Sin which is directly related to the DV protection language discussed above.

A rental agreement will be void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property if it does not also include the new domestic abuse protection language set forth in sec. 704, 14, Wis. Stats.

This is huge.  So hopefully any rental agreements that you have entered into since March 1st of this year contain this required language.  If they do not, you should immediately create an Addendum to your rental agreement that includes the DV notice language and send it to your tenants immediately so that you are in compliance.  If you are using pre-printed rental agreement forms you must insure that they have been updated to include this language.  I can assure you that the rental agreement form that I draft for Wisconsin Legal Blank Co. has had this language added.  Going forward you only should be using the WLB rental agreement form that has a publication date of 2/17/14 or later.

Act 76 also modified the 9th Deadly Sin which was created by Act 143 (which became law in March 31, 2012).  The “old” 9th Deadly Sin stated that a rental agreement was void if it allowed a landlord to evict a tenant as a result of a crime committed in or on the rental property if the tenant could not have reasonably prevented the crime.  This language was problematic for many landlords.  As such the 9th Deadly Sin was modified in Act 76 to read:

A rental agreement will be void and unenforceable if it contains a provision that allows the landlord to terminate the tenancy of a tenant based solely on a crime being committed if the tenant, or someone lawfully living with them, is a victim of that crime.

Hopefully there will not be any new Deadly Sins created in the near future.  If there are, we will end up having more clauses that cannot be included in a residential rental agreement than can be included ; ).

 

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New CCAP Bill Introduced

A new CCAP bill (Senate Bill 526) was introduced on January 30, 2014 by Senators Grothman, Taylor, Schultz, Harris, and Risser.  A public hearing has already been held.

Current law allows for any criminal charge to remain on CCAP even if the charge was dismissed.

This new bill, if passed, would require the Director of CCAP to remove a case involving a misdemeanor or felony from CCAP within 120 days after being notified that the case or charge has been dismissed (and not read into the record for the purposes of sentencing the defendant), the defendant was found not guilty, or the case was overturned on appeal and dismissed.

I am a fan of open records and not removing information about open records that are on CCAP.  While I personally do not have a problem with a criminal charge being removed if the defendant was found not guilty or the case was overturned on appeal and dismissed, I still believe that doing so still interferes with open records, but I can bite my tongue nonethless.

On the other hand, I have a huge problem (and concern) with a criminal case being removed from CCAP solely because it was dismissed.

Many people unfamiliar with the criminal justice system assume that if a case was dismissed that that means that it was filed in error.  While that certainly does occur, that is not the typical situation in which a case is dismissed.  The majority of criminal cases are dismissed, not becasue they were impropely filed, but rather because the victim witness did not appear at trial to testify against the defendant and therefore the State could not prove their case.  This happens quite often especially in crimes involving domestic violence.

When I was younger (and stupider) I used to do some criminal defense work.  I finally quit being a criminal defense attorney after I represented a young man that was charged for the 8th time with Domestic Violence – Battery.  It was alleged that he beat up his girlfriend.  All 8 times it was alleged that he beat up his girlfriend.  I attempted to meet with my client to prepare for trial.  He refused, just smiled, and told me that it was not necessary.  I told him that I could not represent him properly if we didnt prepare.  He told me again not to worry and that there would not be a trial.  I reminded him that there was a “no contact” order in place and that he was not allowed to contact the alleged victim so how would he know if she was or was not going to appear in court to testify against him.  He smiled and said he would never do anything against the law.

The trial date came and the victim did not show.  As a result the District Attorney was forced to dismiss the charge against my client as without the victim the DA could not meet their burden.  My client smiled at me and said “See, I told you you didnt need to worry – no trial.”  He then walked out of the court room.

Even though I was young and stupid, I was not naive.  I knew very well that this individual most likley had talked to the victim and either threatened to harm her if she came to court to testify against him or he actually did harm her to make sure she understood.  The same thing probably happened the prior 7 occassions as well.

I would not want to rent to this person.

Under this new CCAP bill, those 8 criminal charges for DV-Battery against my client would be removed from CCAP and a future landlord would not even know they had been filed or that s/he would be renting to a person that felt it was acceptable to beat up his girlfriend whenever he couldn’t control his anger management issues.

If you have similar examples from propspective rental applicants that you have screened recently, please forward the details to me directly at tpettit@petriestocking.com.  Let’s make sure the politicians are aware that this type of behavior does actually occur and how it may hurt our industry, if such a law is passed.

Thanks

T

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Revised Wisconsin Legal Blank Forms Will Be Available on Monday, February 17th

As I hope most of you are aware, Wisconsin passed a new law that will great affect landlord-tenant law – Act 76.  Whenever the law is changed, there is usually a need to revise and/or update your rental documents to comply with the law.  That is definitely the case with the changes from Act 76.

As such, I have had to update many of the rental documents that are sold at Wisconsin Legal Blank.

The new law becomes effective March 1, 2014.  So for those of you that use the WLB forms you will want to use these revised forms for any new tenancies that commence on or after March 1, 2014.

The following Wisconsin Legal Blank forms have been revised:

 

1.   Residential Rental Agreement (#19)

The changes made to this form are very important.  As of March 1, 2014, it will be required that all residential rental agreements include certain language that provides notice of domestic abuse protections.  Act 76 states that a rental agreement will be void and unenforceable if it allows a landlord to terminate a tenancy for a crime and the rental agreement fails to include the domestic violence notice language.  As a result of having to add this additional language verbatim the Residential Rental Agreement form will be much longer.

Several other changes and modifications were made to this form as well including:

a.   Revision of the “Extermination Costs” section

b.  Addition of a “Non-Waiver” section

c.  Addition of a “Criminal Activity Prohibited” section

d.  The “Notice to Vacate” section was modified to clarify the law better regarding terminating a lease for term.  The 30 day notice required to terminate a month to month tenancy was changed to 28 days to coincide with Wisconsin statutes.

e.  The “Abandoned Property” section was modified to comply with the law changes in Act 76

f.  Additional language was added to clarify that operating a business or providing child care services are not allowed in the rental unit.

g.  Additional language was added in the section entitled “Security Deposit” to state that if the repair costs for tenant damages are not known in time for the sending of the security deposit transmittal letter that a ”good faith” estimate may be used.

f.  Clarifying language was added to the “Breach and Termination” section.

 

2.   Residential Lease Renewal or Notice To Vacate (#970) — Was updated to comply with Act 76′s changes regarding abandoned property.

 

3.  Notice of Rent Increase (for Month to Month Tenant) (#332) – Was updated to comply with Act 76′s changes regarding abandoned property.

 

4.  Check-In / Check-Out Sheet (#997 and #993) — Was updated to to comply with Act 76 with regards to the title and the “When To Use” explanation as well as some stylistic changes.

 

5.  Rental Application (#996) – Eliminated some sections that were not needed and could possibly cause problems for landlords, added some additional instructions for applicant, restructured the layout of the form, and reworded much of the language at the bottom of the signature page.

 

6.  Nonstandard Rental Provisions (#984) — Rewrote the “When To Use” section to better explain the purpose of a NSRP document, removed the “Miscellaneous Matters” section of the form, revised the statutory references, and fixed some grammatical issue.

 

I can’t stress enough how important it is to use updated/revised forms when they become available.  I still see landlords using the Residential Rental Agreement that was drafted over 10 years ago.  There are important reasons that rental documents are updated: (1)  To comply with law changes, (2) To eliminate problem language that has caused landlords problems.  Each new version of these forms are supposed to make your life easier.  Using old forms is just an invitation for problems.  Effective, March 1, 2014, failing to use the revised Residential Rental Agreement may result in your Agreement being declared void and unenforceable.

T

 

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AASEW Meeting: Come Learn About The New Landlord-Tenant Law (Act 76) on Feb. 17th

As many of you know I have been blogging over the past month or so about aspects of the new Landlord-Tenant law that goes into effect on March 1, 2014.  Well, I will continue to blog about the new law in the future, but if you would prefer to learn all about Act 76 in its entirety you should plan on coming to the next AASEW monthly meeting on Monday, February 17, 2014 at 7 pm at the Best Western in Brookfield.

Atty. Heiner Giese and myself, both of whom were actively involved in the drafting of this new law, will be presenting the new law in its entirely at this meeting.  I will be handling out my outline/summary of the new law as well and Heiner will be handing out copies of the new language that MUST be included in all residential real rental agreements as of March 1, 2014.

In my opinion, this will be the single most important AASEW meeting of the year.  So you will not want to miss it.

Attendence at the meeting is free for current AASEW members or $25 per person for non-members (if you join the AASEW at the meeting the $25 fee will be credited to your membership).  If you would like to join the AASEW ahead of time so that you can more quickly find a seat for the meeting you should call Betzi at 414-276-7378 prior to the meeting.

I look forward to seeing everyone there.

T

 

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Act 76 – Wisconsin’s New Landlord-Tenant Law – Part 4: Who May File An Eviction and Who May Appear In Court

Act 76 which will become effective on March 1, 2014 has changed Wisconsin law with regard to who may file an eviction action and who can appear in court to prosecute an eviction.

Current law only allows the person or entity “entitled to the possession of the property” to file an eviction action.  Typically this would be the owner of the rental property.  As such, a management company or another third party cannot currently be named as the plaintiff in an eviction action — only the owner can.

In the past, the Milwaukee County Court Commissioners where monitoring this issue closely, even going so far as to look up the tax bill for the rental property online while the case was in court to insure that the named plaintiff in the eviction lawsuit was the owner named on the tax bill.  If they were not, the case would either be dismissed or adjourned to allow the owner to be substituted as the plaintiff and appear in court.

Act 76 will amend sec. 799.40(1), Wis. Stats., and as of March 1, 2014, an eviction lawsuit may be filed by either:

1.  The person entitled to possession of the property (i.e. owner),  OR

2.  An agent of the person entitiled to possession of the property as long as they are authorized to do so in writing.

So in the very near future, it will be legal for a property management company to file an eviction lawsuit on behalf of one of their clients (the owner) as long as the owner has authorized the property management company to do so in their management contract or a separate writing.

Similarily, Act 76 will also change who may appear in court to represent the named party in an eviction action.

Current law allows a person entitled to possession of the property (which can be a person, business entity, trust etc.) to appear by the person himself or herself, an attorney,  or a full-time employee.  As a result, landlords that had transferred their rental properties into a LLC (limited liability company) for liability protection were required to appear in court by an attorney unless they could prove that they were a full-time employee of the LLC (which was typically not the case).

So under current law, if an LLC was the owner of the rental property — and thus was required to be the named plaintiff — it could only appear in court through a lawyer.  A member of the LLC, even if it were a single member LLC, could not appear in court to represent the LLC.  To those of you who understand the basics of what is referred to as the  ”corporate fiction” of a business entity and understand that a business entity (even a sole member LLC) is distinct and separate from the individual person, this made sense.  Nonetheless, from a practical perspective it was frustrating to many smaller landlords that had opted to move their rental real estate into a LLC that they could no longer appear in court to prosecute an eviction.

Act 76 has eliminated the requirement that the person be a full-time employee of the business entity in order to appear in court on its behalf.

As of March 1, 2014, it will be acceptable for a party in any small claims lawsuit to appear in court by himself/herself, by an attorney, by a member (as defined in sec. 183.0102(15), Wis. Stats.), by an agent, by an authorized employee of the person, or by an agent of the member or an authorized employee of the agent.

So pretty much anyone can now appear in court to represent an owner or management company on an eviction as of March 1, 2014.

It is important to remember that this law change applies to all small claims actions, not just evictions.  So this change will affect small claims collections lawsuits, replevins etc.  Additionally, the new law applies to ALL parties – not just landlords.  So a tenant will now also be able to appear in court by an agent or authorized employee.

While I am no Nostradamus, I think it is fair to say that this particular change in the law will result in bit of confusion and congestion in eviction court.  It may also result in some eviction cases being dismissed if the landlord does not have a firm grasp of landlord-tenant law and small claims procedure.   For those of you that are interested in appearing in court yourself, I would reccomend that you educate yourself accordingly.  Attending the AASEW’s Landlord Boot Camp on March 8, 2014, to insure that you know what you are doing would not be a bad idea.

And for those of you that have better things to do than waste an afternoon sitting in eviction court, you still will have the ability to hire an attorney to represet you ; )

 

 

 

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ACT 76 – Wisconsin’s New Landlord-Tenant Law – Part 3: Speeding Up the Eviction Process

Several of the provisions of Wisconsin’s New Landlord-Tenant law, Act 76 (SB 179), were created or amended to speed up the eviction process.  Evictions are supposed to be summary proceedings and per the Wisconsin Supreme Court (Scalzo v. Anderson, 87 Wis. 2d 834 (1979)) there are very limited number of issues permissible in an evictions action.  Nonetheless, tenants were finding ways to delay the process.  Hopefully Act 76 will resolve much of that delay.

First, Act 76, amends sec. 799.12, Wis. Stats. to allow circuit courts in the various counties to decide via local rule whether or not to allow service of an eviction summons via certified mail. Current law does not allow service of an eviciton by mail and requires that an eviction summons be served personally, or after reasonable diligence has been made, via substituted service or posting and mailing.

If a county allows service via mail, then the clerk shall mail a copy of the eviction summons to each defendant at their last known address.  Service of the summons will be considered completed when mailed, unless the envelope enclosing the summons has been returned unopened to the clerk prior to the court date.

I personally think that service of an eviction summons via mail will cause logistical problems.  I can tell you right now that Milwaukee and Dane counties certainly will not agree to service by mail in eviction actions but possibly it will work in smaller counties.

Second, Act 76 amends sec. 799.05(3)(b), Wis. Stats. and states that the return date (initial appearance) in court can be no less than 5 days and no more than 25 days after service is issued (i.e. the tenant is served with the eviction summons).  Current law requires the return date be held no less than 5 days and no more than 30 days after service.

It will be important that landlords make sure that their process servers are aware of this law change starting March 1, 2014 otherwise it could result in their evictions being dismissed if the return date/initial appearance is scheduled more than 25 days after service is effectuated.

Third, sec. 799.206 and sec. 799.20(4), Wis. Stats,  have been amended to require that all contested hearings in small claims actions (evictions, garnishments, replevins etc.) must be scheduled within 30 days of the return date/initial appearance.

Even more important to landlords is that all residential evictions trials on the first cause of action (i.e. return of the premises) must be held and completed within 30 days of the return date/initial appearance.  This law new law applies to both trials to the court and jury trials.

I personally feel that this change is the most important part of Act 76 in terms of speeding up the eviciton process.  While many evictions are not contested and the landlord obtains a default judgment, those that are contested can take a long time to get to trial.  Many tenants and their advocates have been requesting jury trials on eviction matters.  By doing so – at least in Milwaukee county – these cases are rotated to a large claims judge handling civil matters (as the small claims judge does not handle jury trials) and result in a lengthy delay.  In some of my contested eviction cases, it was taking 2 months to even get before the judge for a Scheduling Conference and the jury trial itself was not being scheduleded until 6 months after the return date.

While tenants are entitled to their day in court – which includes a jury trial if they wish — they should not be given a 6 month reprieve just by requesting a jury trial.  During those 6 months the landlord often is not receiving any rent payments and/or the ”good” tenants in the building are stuck putting up with the actions of the breaching tenant.  In my opinion, requesting a jury trial in an eviction action is nothing more than a delay tactic.  Tenants and their advocates have been successful in buying more time and in making the eviction process more expensive for the landlord by driving up his/her costs and fees.  Of all the jury trials requested by tenants in eviction cases that I have been involved in (which number over 20 – most of which occurred this past year) not one of them actually went to trial.  So I am very happy to this new law hopefully put a stop to this abuse of the system.  Tenants will still get their trials but they can no longer stretch it out for months and months.  How the courts will assimilatate these jury trials within the 30 day time limit will be the key issue moving forward.

 

If you missed my prior posts on Wisconsin’s new landlord-tenant law you can click on the links below

Part 1 – Background and Overview

Part 2 – Restrictions on Local Ordinances

 

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Governor Walker Signed 2013 Wisconsin Act 76 (SB 179) Into Law Today

Bill Signing 121213 91

 

2013 Wisconsin Act 76 (SB 179) was signed into law today, December 12, 2013, by Governor Scott Walker in his office at the Capital building.

Many people attended the signing, including myself.  It was the first law signing that I have ever attended and was very intersting.  I was able to get a photograph with the Governor, had him sign a copy of his new book (a Christmas gift for my mother) and even received a pen that was used to sign a portion of the new law.

I learned after the signing that the pens that are handed out to the attendees at a law signing are each used to sign at least some part of the new law.  So for example one pen is used by the Governor for his signature.  Another pen is used to write the “D” in the date “December”.  Another pen is used to write the “e” in “December” and so on and so on.  It was humorous watching him pick up each pen and write something then put it down and pick up another pen, write something, put in down . . .  and so on and so on.

So Act 76 (I’m so used to calling it SB 179 that it will take some time to get used to the new name) was enacted today (Dec. 12, 2013) and will be published tomorrow (Dec. 13, 2013).  The law will become effective on March 1, 2014, except for the section on towing which will become effective on July 1, 2014.

Congratulations to everyone that worked on this new law!  Here is a link to Act 76.

T

 

 

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