Archive for category Legislation

“Landlord Preemption Bill” Signed Into Law

Dec 28

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

It is nice to finally see some landlord-friendly laws being passed in the state of Wisconsin.

On December 7, 2011, Senate Bill 107 (commonly referred to as the “Landlord Preemption Bill”) was signed into law by Governor Scott Walker as 2011 Wisconsin Act 108.  This new law creates Section 66.0104 of the Wisconsin Statutes and prohibits municipalities from enacting an ordinance that places certain limits or requirements on a landlord.

Specifically, section 66.0104 prohibits any city, village, town or county from enacting an ordinance that prohibits a landlord from obtaining and using any of the following information with respect to a tenant or prospective tenant:

  1. Monthly household income
  2. Occupation
  3. Rental history
  4. Credit information
  5. Court records, including arrest and conviction records, to which there is public access
  6. Social Security number or other proof of identity.

The new law also prevents a municipality from limiting how far back in time a prospective tenant’s credit information, conviction record, or previous housing may be taken
into account by a landlord.  It also prevents a municipality from prohibiting or limiting when a landlord can enter into a rental agreement for a rental unit with a prospective tenant or show a rental unit to a prospective tenant during the tenancy of a current tenant.

Additionally, the new law prohibits a municipality from enacting an ordinance that places requirements on a landlord with respect to security deposits, earnest money or pre or post tenancy inspections that are in addition to the requirements currently set forth in Wisconsin Administrative Code ATCP 134.

If a municipality has an ordinance on its books that conflicts with sec. 66.0104 than that ordinance is no longer applicable and may not be enforced.

This new law will positively affect landlords throughout the state, but most especially in Madison and its environs.  I think as a result of Wisconsin Act 108 the city of Madison’s Code just lost a few pounds.

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Governor Walker Signs 2 Pro-Landlord Bills Into Law

Dec 9

Posted by Tristan R. Pettit, Esq. in Attorney's Fees, Legislation | No Comments

Just wanted to let everone know that in the last few days Governor Walker has signed into law two bills that will positively affect landlords.

-  On December 7th, Governor Walker signed SB 107 (2011 Wisconsin Act 108) which relates to prohibiting municipalities from creating ordinances that put limits on landlords.  If you would like more detail on this law please see my prior blog post on the topic.  Here is a link to the legislative history of the bill.

- On December 7th Governor Walker also signed into law SB 12 (2011 Wisconsin Act 92) which creates a presumption that a tenant’s attorney’s fees should be capped at 3 times the amount of damages at issue when a tenant sues a landlord for an alleged violation of ATCP 134.  If you would like more information on this see my prior blog post.  Here is a link to the legislative history of the bill.

 

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New Federal Bill Would Add Two New Protected Classes To Federal Fair Housing Act

Oct 31

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Legislation | 3 Comments

On September 26, 2011 both chambers of the U.S. Congress introduced legislation that would extend housing discrimination laws to include protections based on sexual orientation and gender identity.  The HOME (Housing Opportunities Made Equal) Act was introduced by Sen. John Kerry and others.  The bill would amend the Fair Housing Act to prohibit housing discrimination and intimidation on the basis of sexual orientation and gender identity.

Wisconsin is one of 13 states and the District of Columbia that already outlaws housing discrimination on the basis of sexual orientation. However, currently only 8 states afford fair housing protection based on gender identity and Wisconsin is not one of those states.

 

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New Bills Would Limit Tenant’s Attorney’s Fees When Suing Landlords

Oct 27

Posted by Tristan R. Pettit, Esq. in ATCP 134, Legislation, State of Wisconsin | 1 Comment

There are two new proposed laws that if passed would limit the amount of attorney’s fees that could be awarded to a tenant that has sued his/her landlord for violation of ATCP 134 to 3 times the amount of compensatory damages in Wisconsin.  The proposed legislation (Special Session Assembly Bill 12 & Special Session Senate Bill 12) was introduced by the committee on Senate Organization and the Committee on Assembly Organization at the request of Governor Scott Walker, Senator Rich Zipperer (R) and
Representative Robin Voss (R).

Currently if a tenant sues his landlord for a violation of ATCP 134 – which typically is due to  the landlord’s alleged improper withholding of the tenant’s security deposit – and prevails, the court must award the tenant double damages, the costs of the lawsuit, and the tenant’s reasonable attorney’s fees.  In almost every instance, the tenant’s reasonable attorney’s fees are much larger than the compensatory damages awarded.

In the United States we follow what is referred to as the American Rule which states that a person pays for their own attorney’s fees regardless of the outcome of the lawsuit.  This is very different from the English Rule, which is followed in England, which requires the losing party to pay for the prevailing party’s attorney’s fees in addition to their own.

Despite following the American Rule in the United States, there are certain situations in which a state or federal statute will allow for the shifting of one’s attorney’s fees to th other party.  These statutes are referred to as fee shifting statutes.  Sec. 100.20(5) of the Wisconsin Statutes is an example of a specific type of fee shifting statute, called the private Attorney General statute, which requires that a landlord that has been found to have violated ATCP 134, to pay his tenant two times the tenant’s compensatory damages and the tenant’s reasonable attorney’s fees.

It is argued that the private Attorney General statute, which is codified as sec. 100.20 (5), Wis. Stats., has many purposes, such as: (1) it encourages a tenant that is damaged financially by the acts of their landlord to file a lawsuit to enforce their rights even if the alleged damages are small, (2) it allows a tenant to enforce his own rights as well a well as the public’s rights, (3) it deters improper conduct by landlords, (4) it strengthen the bargaining power of a tenant, and (5) it provides a much needed backup for th State as there are too many violations for the Attorney General’s Office to enforce alone.

These new bills would limit a tenant’s attorney’s fees to 3 times the amount of the compensatory damages awarded in all cases in which only compensatory damages are awarded.  If non-monetary relief is awarded in addition to compensatory damages (such as injunctive or declaratory relief, rescission or modification, or specific performance the court must “presume” that reasonable attorney’s fees do not exceed 3 times the amount of the compensatory damages awarded, however that presumption may b overcome after the court analyzes 13 factors which the bills will allow a court to consider when setting the amount of attorney’s fees.

Critics of the two new bills feel that if passed, they will essentially “gut” Wisconsin’s consumer protection laws.  Their argument is that no attorney will be able to afford to tak a tenant’s smaller damage case due to the limitations of their fees.  As a result, it is argued that tenants will no longer be able to challenge the improper behavior of the landlords and therefore” bad” landlords will be able to do whatever they want and get away with it.

 

UPDATE – 10-28-11 — On Thursday, Oct. 27, 2011 the aforementioned bill was passed by the Senate 17-15 (on a party line vote). The bill was softened a bit to allow for atty. fees greater than 3 times damages to be awarded by a judge BUT the presumption would still be that three times damages is sufficient.

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Crime-Free Lease Bill On The Horizon

Oct 17

Posted by Tristan R. Pettit, Esq. in AASEW, Legislation, Notices | 3 Comments

On September 12, 2011, on behalf of the AASEW, I traveled to Madison to meet with the Wisconsin Rental Housing Coalition, several legislators’ aides, and an attorney from the Legislative Reference Bureau to assist in the review of and drafting of a new piece of legislation that will greatly affect residential landlords.

Not yet a bill, this proposed legislation is referred to as LRB-2098/1 or informally as the “Crime-Free Lease bill.”  Initiated by fellow landlord and South Milwaukee Police Officer Brian Fleming, this legislation if passed, will change current Wisconsin law to allow a landlord to terminate the tenancy of any tenant (even those under a lease for term) that engages in criminal activity in their rental unit or on the rental property.  A new type of 5 day notice would be created under this legislation which would not allow the tenant the opportunity to cure the breach and stay.  It would basically be a “1 strike” law similar to what is in place in federal Section 8 site-based housing.

Criminal activity under the proposed legislation would be defined as any act or behavior that is punishable in Wisconsin by a fine or period of imprisonment or that is a violation of a municipal ordinance.

If the tenant fails to vacate the unit after being served with this new 5 day notice, the landlord would still be required to prove the criminal activity in eviction court.

The impetus for this legislation was the National Crime Free Lease Addendum that has been adopted and used in many counties outside of Wisconsin.  Under this initiative, a tenant agrees not to engage in criminal activity on the rental property — or allow any of their guests to do the same — and signs a contract with the landlord to that effect.  If the tenant or the tenant’s guests engage in the prohibited criminal activity, they agree to vacate the property upon notice by the landlord.

Current law in Wisconsin conflicts with the Crime Free Lease Addendum as tenants under a lease for a specific term, must be afforded the opportunity to correct the breach and remain a tenant the first time that they violate their lease — even if that violation is a crime.

Sec 704.17(2)(b) of the Wisconsin Statutes, allows a tenant under a lease who engages in criminal activity, to remain a tenant as long as s/he ceases the criminal activity within 5 days of being served the notice of breach.  Thus, a landlord can be stuck with a tenant that he knows engages in criminal behavior until that tenant commits a second crime and can be served with a 14 day notice (which does not afford the tenant the opportunity to “cure” the breach and remain a tenant).

This puts Wisconsin landlords in a very difficult position and opens them up to liability.  It also prevents a landlord from protecting his/her other tenants from the tenant that is engaging in criminal activity.

Once the bill is officially introduced and has obtained co-sponsors I will let you know so that you can begin calling and writing your state representatives to encourage them to vote in favor of this very important legislation.

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Update on Landlord Pre-Emption Bill

Oct 10

Posted by Tristan R. Pettit, Esq. in City of Madison, Legislation, Screening Tenants, State of Wisconsin | 2 Comments

It has been awhile since I updated everyone on the pro-landlord legislation that is being addressed in Madison.  Senate Bill 107 (SB 107) — referred to as the Landlord Pre-Emption Bill —  has been passed by the Wisconsin Senate and is currently being reviewed by the House this term (AB 155).

You may recall that SB 107 prohibits any municipality from enacting any ordinance that limits a landlord from obtaining or using various types of information about a tenant or prospective tenant, such as household income, occupation, court records, rental history, and credit information, or limits how far back in time a prospective tenant’s
credit information, conviction record, or previous housing may be considered.

The bill has received much opposition from local municipalities and their lobbyists, not for the substance of the bill, but rather for the fact that if passed, the law will
restrict a municipality’s ability to draft certain ordinances.  Essentially the municipalities feel this to be a breach of their own sovereignty and an example of the state overstepping its bounds.  Many feel that this is really just a Madison problem — since it is the City of Madison that has enacted many of these restrictions on what information a landlord can consider when making a rental decision – and therefore should be dealt with at the city level.

Another group of critics believe that the bill discriminates against African-Americans.  Four Dane County Board Supervisors, two Madison City Council members and one Madison School Board member, sent a letter to Governor Walker and legislators on September 7, 2011, asking that the provision of the bill that will allow landlords to deny housing to tenants with criminal histories be removed because is discriminates against African Americans.

They argue that allowing a landlord to deny a rental applicant housing based on his/her criminal convictions will unfairly affect African-Americans because while they
only comprise 6% of the state’s population they account for almost 50% of those with arrest and conviction records.  Thus the critics of the bill argue that to allow a landlord to deny a rental applicant based on his/her criminal record is to allow landlords to deny housing based on race.

The critics are relying on the doctrine of “disparate impact.”  The disparate impact doctrine holds that certain laws may be discriminatory and illegal – even if the law is neutral on its face — if they have a disproportionate “adverse impact” on members of a minority group.

This disparate impact argument is ignoring a key ingredient – one’s choice to engage in criminal activity.  One’s race is not something that a person has control over – we are born into a certain race.  On the other hand, individuals do have control over whether or not they engage in criminal activity.  Committing a crime is a volitional act.  Being born African-American is not.  We are dealing with apples and oranges here.

Disparate impact arguments are often raised when a law unintentionally affects a minority group through no fault of their own.  This small group of critics, are trying to apply the disparate impact doctrine to individuals that made a voluntary decision to engage in criminal activity.

 

UPDATE – 10-28-11 — On Wed. Octo 26, 2011, By a vote of 59-34 the Assembly voted to suspend a rulling on AB155.  An amendment was made by Rep Chris Taylor (D-Madison) that would protect some local control within the bill – the amendment was tabled by a vote of 60-33.

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City of Madison Proposes New Legislation That Will Make A Landlord Become His Tenant’s Babysitter

Aug 10

Posted by Tristan R. Pettit, Esq. in City of Madison, Legislation | 4 Comments

In an attempt to curtail house parties or “keggers” in the city of Madison, a new ordinance has been proposed.  Legislative File Number 23310, would create section 25.10 of the Madison General Ordinances to prohibit what is referred to as “nuisance parties.”  The ordinance would require the police to provide a landlord with notice of a nuisance party that occurred at his rental property and require the landlord to take appropriate measures to prevent future nuisance parties from being held by his tenant at the rental property.  The ordinance would also allow the police to fine the landlord between $100-$5,000 if his tenant held a second nuisance party within a 12 month period.

A ”nuisance party” is defined as a social gathering that, by reason of the conduct of the persons in attendence, results in one of more violations of 17 enumerated ordinance violations, including but not limited to: selling or giving away intoxicating liquors without a license, procuring and furnishing alcohol to minors, intentionally encouraging the comsumption of alcohol by minors, disorderly conduct, obstructing street and sidewalks etc. etc.

Under the proposed ordinance, if a beer barrel is visible to the public, even if it is located in the back yard, side yard, or on the porch of the property, and one or more of the above-noted ordinance violations is present, that gathering will be considered a nuisance party.  Looks like the days of sitting on the porch drinking from a keg are over for the college kids.

Any person who is the “owner, occupant, tenent or otherwise has rightful possession . . . of any premise, who either sponsors, conducts, hosts, invites or permits a social gathering or party on said premises which becomes a nuisance party . . . is deemed to be in violation of the ordinance.”  By this wording it appears that the city thinks that a landlord is inviting, permitting or encouraging a tenant to have a house party if the landlord does not prevent it from occurring.  How about a different possibility —– the landlord was not aware of the party.

Essentially this ordinance, if passed —- heck, it is MADISON, of course it will be passed —- will make a landlord responsible financially for any tenant that has a ’kegger.”  Yes, I understand that these parties can be dangerous and can be a nuisance to neighbors, and I am not taking issue with the need to stop so called “nuisance parties.”  But trying to hold a landlord responsible for his tenant’s actions is not the way to solve the problem of house parties.  Landlords are not their tenants babysitters.  While a landlord may wear many hats . . . housing provider, bill collector, maintenance person, social worker etc . . .  we are not babysitters.

An article in the Daily Cardinal from July 27, 2011, quotes Alderman Scott Resnick, who is against the proposal, as saying “it makes the landlord play babysitter to a number of house parties.”  Resnick indicates that he is against the proposal because there are already laws and ordinances available that prevent overcrowding and disturbing the peace.” Resnick also stated that involving landlords is not the way to address problems with underage drinking and large house parties near campus.

The part of the ordinance that concerns me the most is the sub-part entitled  (6) “Owner’s Failure To Prevent A Second Nuisance Party.”  The first sub-section states that within 10 days of the police breaking up a nuisance party, the police must notify the landlord of the violation of the nuisance party ordinance.  It also states that the landlord must give the tenant a 5 day notice for breach of the rental agreement for having the nuisance party.  But the kicker is contained in the second sub-section which states that if another nuisance party occurs at the same property within a 12 month period and the same occupants are responsible for the party, the police SHALL send the landlord a second notice of the nuisance party ordinance violation and the landlord SHALL be subjected to a forfeiture.

So under this proposed ordinance, a landlord can be fined even though legally he is unable to terminate his tenant’s tenancy or file an eviction prior to the tenant hosting a second nuisance party.

Unless things have changed since I went to college, most tenants operate under a one year lease agreement with their landlords.  When a tenant is under a lease agreement for a specific term (as opposed to a month to month tenancy) and breaches the term of his rental agreement, a landlord is required to serve the tenant with a 5 day notice which allows the tenant the right to cure the breach and remain a tenant.  A landlord legally cannot terminate his tenant’s tenancy after the first breach if the tenant is under a lease for a specific term.

So let’s walk through this in the context of a nuisance party:

1.   A tenant hosts a nuisance party

2.   The landlord is notified of the party by the police or neighbors and serves the tenant with a 5 day notice for breach of lease.

3.   The tenant cures the breach by not having another party within the ”cure” period.

4.   That same tenant decides to host a second house party within 12 months of the first shindig, thus committing a second breach of the lease.

It is only at this point that a landlord can serve the tenant with a 14 day notice (which does not afford them the right to cure the breach) terminating the tenancy and proceed to evict the tenant if he fails to vacate the rental property at the end of the 14 days.  But by this time, under the proposed ordinance, the landlord can already be hit with a fine from the city for his tenant’s actions.

Now, Madison’s proposed ordinance does include a section (8) entitled “Affirmative Defenses” which states that “it shall be an affirmative defense to a charge of violating the ordinance, if the landlord has evicted or is dilligently attempting to evict all tenants and occupants of the property who are responsible for the nuisance parties.”

Based on this language it would appear that some leniency may be given to a landlord who is attempting to evict a tenant that has hosted two keggers within a 12 month period.  But why not draft the ordinance so that the landlord cannot be fined until after he is legally able to remedy the problem under Wisconsin landlord-tenant law.  A landlord should not be able to be fined by the city for violating a municipal ordinance for failure to control his tenant, when state law prevents him from doing anything about the problem yet.

Personally, I think the entire ordinance is ridiculous.  Landlords are not their tenants babysitters.  People should be held responsible for their own actions.  But if the city of Madison is going to attempt to hold landlords responsible for their tenants behavior, then it should at least make sure that a landlord has the legal ability under state landlord-tenant law to rectify the tenant’s behavior by terminating his tenancy and filing an eviction action against the tenant, before the police are allowed to fine the landlord for allegedly not handling the problem.

 

 

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