Archive for category Notices

Top 10 Pitfalls That Landlords Should Avoid

Those of you that missed the last AASEW membership meeting on Monday, April 15, 2013, missed a great meeting and a great presentation.  The featured presenter was John “Dr. Rent” Fischer, a Wausau-area landlord and rental property manager, who spoke to a packed house that Monday.  John’s presentation was dynamic, educational and at times pretty darn funny.

With John’s permission, I am providing you with a link to John’s handout from the meeting which was entitled “Top Ten Pitfalls That Landlords Should Avoid.”

Like any good Top 10 list (a la David Letterman), John presented these pitfalls in reverse oreder based on importance.  The pitfalls to avoid included:

10.  Mailing the 5 Day Notice

9.  Digging The Hole Too Deep

8.  Incomplete Applications

7.  Not Asking The Right People (about your rental applicant)

6.  Auto-Renewing A Lease

5.  14 Day Notice (or NOT)

4.  “Do-It-Yourself” Leases or Rental Forms

3.  Misuse of CCAP

2.  Carpet Cleaning

1.  That Lease is HOW LONG?

As John stated during his presentation, there are a lot of things that are beyond our control that make life as a landlord very difficult at times.  As such, we certainly do not want to make life more difficult for ourselves based on a lack of knowledge of landlord-tenant laws . . . unless we are masochists, that is.

The AASEW has another great meeting scheduled for May 20, 2013 at 7 pm at the Best Western Midway in Brookfield about “How To Finance Real Estate Transactions In The Current Economy.”

 

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Accepting Past Due Rent After Termination of Tenancy: The New Law and Traps To Avoid

The Landlord’s Omnibus Law (Act 143) introduced a new statutory section to Chapter 799 regarding situations when a landlord accepts past due rent from a tenant after the tenant’s tenancy has been terminated.  Newly created sec. 799.40(1m) states as follows:

If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may NOT be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant’s tenancy.

On its face, this seems like a very helpful statute for landlords.

As a quick refresher, it is important to remember that a tenant’s tenancy can be terminated in many ways such as after the “cure” period passes after being properly served with a 5 day notice, 14 days after being properly served with a 14 day notice, or when a lease term ends.

Prior to sec. 799.40(1m) being created, tenant’s advocates argued — and some courts held — that if a landlord accepted past due rent from a tenant after the expiration of the tenant’s tenancy that the landlord entered into a new agreement with the tenant for a month to month tenancy, thus waiving the landlord’s right to proceed with an eviction action based on the prior notice.

I personally believe that such arguments are hogwash, but I will not digress, as that is not the purpose of this post.

Nonetheless, because this “waiver” argument was successfully raised in the past, I have always advised my clients to err on the side of caution and not accept past due rent after the tenant’s tenancy was terminated.  A landlord can refuse past due rent in one of two ways.  First, a landlord can simply refuse the tendered past due rent from the tenant or return the rent payment to the tenant.  This is always a difficult pill for landlords to swallow as they know that by returning the rent payment to the tenant that they will never see that money again.

Second, a landlord could hold the past due rent payment in escrow (not cashing the check or money order) and immediately write what I refer to as a “no waiver” letter and send to the tenant via certified and regular mail.  A “no waiver” letter simply advises the tenant that their past due rent payment is not being accepted as their tenancy has already been terminated.  The letter also should advise the tenant that it is the landlord’s intent to pursue the eviction of the tenant and that the landlord will hold the past due rent in escrow pending a determination by the eviction court as to who legally has the right to possess the rental property.  Finally, a “no waiver” letter should again remind the tenant that the payment they made is not being accepted.

Whenever I have drafted a “no waiver” letter for a client that has accepted past due rent from a tenant post tenancy, I never had a court hold that my landlord client waived his/her right to proceed with the eviction lawsuit.  As a result, my clients have become big fans of the “no waiver” letter.

With the creation of sec. 799.40(1m), it would seem that there is no longer a need for a landlord to send a “no waiver” letter or to return a past due rent payment to a tenant . . . or is there.  I would caution landlords against thinking that this newly created statute is the panacea that it appears to be.

Let me explain.

First, if you read the new law closely — which I don’t believe the drafters did or they would have remedied this oversight – it states that an eviction based on a tenant’s failure to pay rent, may not be dismissed solely because the landlord accepts past due rent after the termination of the tenant’s tenancy.

There are many basis for terminating a tenant’s tenancy besides just failure to pay rent.  Other reasons may include the expiration of a lease term or a breach of the rental agreement for something other than non-payment of rent (i.e. criminal activity, damage to the property, loud music, illegal guests etc).  The new law does not address what happens if a landlord accepts past due rent from a tenant and the tenant’s tenancy was terminated for something other than failure to pay rent.

So literally speaking, a court could still dismiss an eviction if a landlord accepts past due rent from a tenant who’s tenancy was terminated based on something other than failure to pay rent and not run afoul of the new law.  Ouch!  What about situations in which the tenant’s tenancy was terminated for failure to pay rent AND other reasons?  Does the new law apply those situations?

A second concern with the new law arose recently in Milwaukee County.  Please note that this information was relayed to me by another person so I cannot 100% vouch that I have all the facts correct since I was not present when this happened.  What I was told was that a landlord’s eviction lawsuit, based upon a tenant’s failure to pay rent, was dismissed because the landlord accepted past due rent from the tenant after the termination of the tenant’s tenancy and failed to advise the tenant that it was the landlord’s intent to still proceed with the eviction of the tenant.  The court held that newly created sec. 799.40(1m) was not applicable in this situation because the landlord failed to advise the tenant of the fact that the landlord still intended to evict them.

Simply put, the new law is not as great as it appears — so be cautious when relying on it.  Know your judge.  Know your court commissioner.  Regardless of what the law says, if the court believes it says something else or is not applicable to your specific facts, you may not get the result that you were expecting.

So as a result of above, I am still advising my clients (despite sec. 799.40(1m) being the new law in town) that they should consider refusing to accept any past due rent from a tenant after the tenant’s tenancy has been terminated.  At the very least they should send a “no waiver” letter.

So proceed with caution.

 

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Newly revised Landlord-Tenant Law Forms Available at Wisconsin Legal Blank on April 2 and April 3, 2012.

Wisconsin’s Landlord Omnibus Law (Act 143) went into effect today – April 1, 2012.  As a result of the new law it was necessary for me to update many of the landlord-tenant law forms that are sold at Wisconisn Legal Blank.

 

As of Monday, April 2, 2012, the following revised forms will be available:

1.   Residential Rental Agreement  (Form #19)

-  Added language required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

-  Added language about any illegal clause in the rental agreement being severable from the n9on-illegal clauses.

-  Correction of some grammar and punctuation mistakes.

2.   Nonstandard Rental Provisions (Form #984)

-  Added langauge required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

-  Revised language as to when landlord must return security deposit or supply security deposit itemization letter when tenant vacates prior to end of lease term.

-  General revisions to the language of each nonstandard rental provision to comply better with the holding in the Tschantz case.

3.  Notice of Rent Increase in Month to Month Tenancies (Form #332)

-  Added langauge required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

4.  Residential Lease Renewal or Notice To Vacate (Form #970)

-  Added langauge required in order for landlord to be able to dispose of tenant’s abandoned property immediately after they vacate.

5.   Tenant Inspection Sheet (Check-In – Check-Out Form)

-   Revised the title of this form to comply with the title used in the new law.

NOTE:  It is now required that a landlord give this document to tenant’s upon occupancy.  So if you have not previously used this document you need to start doing so now.

 

As of Tuesday, April 3, 2012 the following revised forms will be available for purchase at Wisconsin Legal Blank

6.   5 Day Notice To Pay Rent or Vacate (Form #328)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled to holdover damages of, at a minimum, double the daily rent for the holdover period.

-  Added a line for “Total Amount Due”

7.   5 Day Notice To Correct Breach or Vacate (Form #330)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

8.  5 Day Notice To Vacate – Nuisance (Form #329)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

9.   14 Day Notice To Vacate for Failure To Pay Rent (Form #768)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

-  Added a line for “Total Amount Due”

10.   14 Day Notice To Vacate For Breach of Rental Agreement (Form #767)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

11.   28 Day Notice Terminating Tenancy (Form #327)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

12.  30 Day Notice To Correct Breach or Vacate (Form #325)

-  Changed the word “may” to “shall” when advising the tenant that landlord is entitled toholdover damages of, at a minimum, double the daily rent for the holdover period.

 

Sometime in the near future the following revised form will be available at Wisconsin Legal Blank:

13.   Rules & Regulations (Form #994)

-  Will inlcude major revisions including language, organization and format.

-  Will include revised language regarding a tenant’s responsibility for the actions of their guests, invitees and family members that will comply with the law and not run afoul of “Deadly Sin #8″ created by the new law.

 

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Upon Further Reflection, I Think The Governor Should Veto The Landlord’s Omnibus Bill

I spent several hours yesterday reviewing and thinking about the new Landlord’s Omnibus Bill that is to be signed into law today by Governor Walker at 4 pm.

I then spent hours of time trying to summarize the new law in yesterday’s blog post in an easy to read and understand format.

Since publishing the blog post yesterday I have a few more thoughts and concerns:

1.  AASEW Board member and friend Tim Ballering pointed out to me that he believes that the new law as written will allow for any violation of Chapter 704 to be considered an unfair trade practice, thus allowing a tenant to sue his/her landlord for double damages and attorney’s fees.

Here is the language at issue:

704.95 Practices regulated by the department of agriculture, trade and consumer protection.

Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty arising under this chapter.

In my prior post I did anticipate that this would allow for tenant’s and attorney’s to make arguments that any violation of Chapter 704 was an unfair trade practice and that concerned me.  But after speaking with Tim and thinking about this in more deeply, and re-reading the new law – I think this is a major concern.  So is this law saying that if a landlord improperly drafts or serves a 5 day notice that s/he can be sued by the tenant for double damages and attorney’s fees?  YES.

I believe that this is such a major problem that I will be contacting Governor Walker’s office today before 4 pm and asking him to veto the bill.

2.  The addition of the 8th Deadly Sin really concerns me.  My friend and past Wisconsin Apartment Association President John Fischer succinctly addresses the problem with in an email that he sent to many in the industry which is reproduced below:

When the Housing Task force was looking at blight, blight went beyond just condition of the property, but it also went to criminal activity.

There has been a proposal that various apartment associations have been working on that would make it easier to evict a tenant for criminal activity.  There is a “Crime Free Lease” program that started out west that is very popular with landlords and law enforcement.  A few communities have started working on this program here in Wisconsin, but the biggest hurdle is that the key tool of this program is a “Crime Free Lease Addendum”.  The problem is that this addendum is unenforceable under Wisconsin’s current laws.

The new law that is being signed by Governor Walker at 4 PM this afternoon (I have been invited to this private signing, but I want nothing to do with this) makes a large number of massive changes to Wisconsin landlord-tenant law.  One of the most significant appears to be an answer to our attempts to allow for eviction for criminal activity.  The new law would basically render a lease void if the lease contained language that criminal activity on a property would be a breach of the lease.

So there you have it.  My take on this new law — as well as many others in the industry — is this new law will cause more harm then good.  This is what happens when you try to rush legislation — people do not have time to consider all of the different angles — so I am planning on contacting Governor Walker and ask him to veto SB 446.  I would ask that you consider doing the same.

Thank you to tim Ballering and John Fischer for their thoughts, opinions, and guidance.

 

Q&A: What A Landlord Should Do If Tenant Gives An Improper 28 Day Notice

Every now and then I like to highlight a question or comment that I receive on this blog that I think is especially educational.  I recently received a great question from Peter which I have decided to reproduce as a blog post so that more people can view it and become better educated on the topic.

This specific question has to do with a month to month tenancy in which the tenant has served the landlord with an improper 28 day notice as the termination date does not coincide with the end of a rental period (i.e. end of the month) as required under Wisconsin Statute sec. 704.19.

Attorney Pettit,

This may be a little off subject, but I was hoping you could explain what a landlord’s responsibility is when a tenant serves their landlord with a notice terminating their tenancy, but specifies an inaccurate termination date in the notice.

For example: a periodic tenant serves a 28 day notice to their landlord on 04-01-2012 terminating their tenancy on 05-05-2012. The notice was served with the proper length of time under Stat. 704.19(3), but it did not terminate the tenancy at the end of a rental period as required by Stat. 704.19(2)(b)1.

I know Stat. 704.19(5) says that such a notice would be valid, but would not be effective until the first date which could have been properly specified – i.e. May 31, 2012. My concern is the second-to-last sentence in Stat. 704.19(5) that says the party to whom the notice was served may “elect to treat the date specified in the notice as the legally effective date.”

Does that sentence mean the landlord has an obligation to inform the tenant that the termination date in their notice was inaccurate and will not be effective until May 31? If the landlord does not inform the tenant that the termination date in their notice was ineffective, could that be construed as the landlord’s “election” to treat the inaccurate date as the legally effective date?

There is no explanation in the chapter which describes what constitutes an “election” in this circumstance and that sentence seemingly creates an enormous loophole through which tenants can escape their responsibility to give a proper notice to vacate. Any thoughts or information you have on this matter are greatly appreciated. Thank you.

—–

Peter – Thanks for your question.  Plese feel free to call me Tristan : )

You have cited the proper Wisconsin Statute that is applicable for this issue – 704.19.  Sec. 704.19 is really the only guidance that we have on the issue.  I am not aware of any caselaw interpreting 704.19 in Wisconsin.

I interpret the statute to mean that you, the landlord, can choose to accept the defective notice as it is and relieve the tenant for responsibility for rent after 5-5-12.  If you do not want to accept the defective notice and relieve the tenant of responsibility as of 5-5 then I think it would be necessary to point out the tenant’s error to the tenant, preferably in writing, to avoid an “waiver” argument that might be made by the tenant.

Each court (each judge, each court commissioner) is able to interpret the statute and the term “election” as they wish and to determine if you, the landlord, waived your right to the entire month’s rent by failing to bring the tenant’s error in the notice to his/her attention.

I don’t know whether or not a court would decide that if you failed to bring the defective notice to the tenant’s attention that you waived your right to collect the full month’s rent.  But sxperiencing how tenant-friendly many Wisconsin courts are, I wouldn’t want to take the chance.  To be safe – and to “CYA” — I would assume that a tenant might make the “waiver” argument and that a court could might make a ruling that because you did not bring this discrepency to the tenant’s attention, that you waived your right to the full rent amount for May 2012.

From a practical standpoint, if I received an improper 28 day notice from a tenant, I would call the tenant  and politely explain to them why the notice was improper and what the legal ramifications are — that they are “on the hook” for all of May’s rent.  I would then follow that telephone call with a letter memorializing the discussion and explaining why the tenant’s 28 day notice was improper– explaining that the 28 day notice must coincide with the end of a rent paying period per 704.19(2)(b)(1).

Next, I would include in my letter that had the notice been drafted properly, that the tenant would be responsible for rent through the last day of the month – May 31st.  I would then tell the tenant that you will treat the notice as effective on the last day of the month and remind them that while they can leave before the last day of the May that they are responsible for the full month’s rent.

I would then wait and see what the tenant does.

Hopefully, after your explanation and showing them the statute, the tenant  will understand that they made a mistake and pay you the entire month’s rent.

If the tenant doesn’t pay you any rent or only pays rent for 5 days of May, you should “5 day” them and then decide if you want to retain a portion of their security deposit to cover the rent that they are legally responsible for paying or if you would prefer to return the security deposit (to avoid any potential chance of the tenant being awarded double damages and attorney’s fees) and sue them in a small claims (non-eviction) action for the rent they owe.  There are pros and cons to either option and I am not suggesting one over the other but as I see it those are the two options that you have.

Thank you for your great question.

 

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You Will Not Want To Miss AASEW’s Fourth Annual Landlord Boot Camp on Saturday Feb. 25th

Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands of dollars.

The Apartment Association of Southeastern Wisconsin’s Fourth Annual Landlord Boot Camp can help you navigate these treacherous waters and teach you how to run your properties with greater profit and less hassles.

I have given similar landlord-tenant law seminars to fellow attorneys, landlords, and property manager organizations throughout the state for other state-wide semianr companies that charge attendees $300-$400.  This is your opportunity to learn all of the same information at a huge discount through the Apartment Association.

 

Who:   Taught by Attorney Tristan R. Pettit (who drafts the landlord tenant forms for Wisconsin Legal Blank)

When:    Saturday, February 25th, 2012. 8:30 am – 5 pm

Where:   Clarion Hotel 5311 S. Howell Avenue, Milwaukee [Map]

Included:  100 plus page manual/outline to help you put what you learn into practice plus helpful forms.

Cost:  $159 for AASEW members and $249 for non-members.  If you are not a member of AASEW but are a member of another landlord/apartment association the cost to attend will be $199.

Specials: Not a member?  Pay just a dollar more and enjoy a 2012 AASEW membership.

Wisconsin landlord-tenant laws are constantly changing.  To help keep you up to date we offer prior attendees a $50 discount.

Sign up by going to the AASEW’s Landlord Boot Camp landing page where you can sign up online and pay via PayPal.

 

What you will learn at the Apartment Association’s 2012 Landlord Boot Camp

Landlord Boot Camp covers everything that you need to know about residential Landlord Tenant law in Wisconsin, including:

  1. How to properly screen prospective tenants.
  2. How to draft written screening criteria to assist you in the selection process and protect you from discrimination complaints.
  3. How to comply with both federal and state Fair Housing laws including how to handle with “reasonable modifications”  and “reasonable accommodations” requests.
  4. How to legally reject an applicant.
  5. What rental documents you should be using and why.
  6. When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant.
  7. Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134.
  8. When you are legally allowed to enter your tenant’s apartment.
  9. How to properly draft an eviction summons and complaint.
  10. What to do to keep the commissioner from dismissing your eviction suit.
  11. What you can legally deduct from a security deposit.
  12. How to properly draft a security deposit transmittal / 21 day letter.
  13. How to handle pet damage.
  14. What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit.
  15. How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so).

. . .  and much more.  There will also be time for questions and answers.

You get all this for less than you would pay for an hour of an attorney’s time.

Last year’s AASEW Landlord Boot Camp was filled to capacity and we even had to turn a few people away.  So call early to reserve your spot.

Call the Association at (414) 276-7378, email membership@apartmentassoc.org or go to our Landlord Boot Camp landing page to sign up online and reserve your spot.

Remember that “landlording” is a business — so take the time to educate yourself on how to better manage your business and avoid costly errors!

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Don’t Miss the 2nd Annual East Side Landlord Think Small Conference on Wednesday November 9, 2011

I will be the featured speaker at the upcoming East Side Landlord Think Small Conference on Wednesday, November 9, 2011 from 3 pm – 6:30 pm at UW-Milwaukee, Chapman Hall located at 2310 E. Hartford Avenue, in the Regent’s Room on the 2nd floor.

This conference is FREE to any and all interested landlords, with a special focus on Milwaukee’s East Side landlords.

This conference is composed of 3 componants:

1.   Featured Speaker – I will be speaking on the issues of “Causes for Eviction and Termination of Tenancy” and “Notices Terminating Tenancy.” You will learn about the 4 basic notices that can be served on a residential tenant in Wisconsin (5 day, 14 day, 28 day and 30 day notices) and when you should be using each notice and why.  While no one wants to have to evict a tenant . . . sometimes it is necessary.  At the very least, landlords need to become comfortable with the various notice that can be served on a tenant when a tenant breaches his/her rental agreement or the landlord wants to terminate the tenant’s tenancy.  I will also discuss the proper way to serve a tenant with one of these notices.  I will be handing out a detailed 11 page outline on this topic that attendees can take home to refer to when needed in the future.  Examples of properly drafted 5 day, 14 day, 28 day, and 30 day notices will also be distributed.

2.   Round Table Discussion – This discussion will include a panel of UW-Milwaukee staff, City of Milwaukee staff, myself, and others and will focus on local topics and common problems that East Side landlords encounter.

3.    Panel of Experts – The panel will be comprised of members of the Milwaukee Police Department, Campus Police Department, Department of Public Works, Department of Neighborhood Services, and UW-Milwaukee Department of Neighborhood Housing and who will field any questions that you may have.

There will also be time to network with other landlords.

If you are interested in attending please RSVP to Heather Harbach, UW-Milwaukee Neighborhood Relations Liason at (414) 229-4451 or harbach@uwm.edu.  You can also register for the event by clicking here.

I hope to see everyone there!!

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