Archive for category Right of Entry

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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A Landlord Has Every Right To Enter His Rental Property . . . In Certain Situations.

Unbeknownst to many tenants, a landlord has a legal right to enter his tenant’s rental unit in certain circumstances.  The rental unit is still the landlord’s property and the law provides a landlord with the right to access that property.

Implied in all residential rental contracts is what is referred to as the “covenant of quiet use and enjoyment.”  This covenant basically means two things:

1.   That the landlord guarantees that the tenant can take possession of the rental unit and has the right to privacy and exclusive use and possession of that rental property, and

2.   That the landlord will not interfere with the tenant’s privacy and right to exclusive possession.

There are important exceptions to this covenant however, and that is the part that many tenants tend to overlook.  Both the Wisconsin Statutes (sec. 704.05(2)) and the Wisconsin Administrative Code (ATCP 134.09(2)) carve out exceptions to the covenant which allow a landlord limited rights of entry to the tenant’s rental unit.

A landlord may enter a tenant’s rental unit upon advance notice and at reasonable times, in order to do the following:

a.   Inspect the premises

b.   Make repairs

c.   Show the rental unit to prospective tenants or purchasers

Advance notice is typically 12 hours unless the tenant consents to a shorter period.  Some municipalities like the City of Madison require a longer notice period of 24 hours.  I strongly recommend that your advance notice be in writing. Having a written 12 hour notice indicating the reason for your entry and the estimated time of entry goes a long way should a tenant later say that you had no right to enter her unit.  You now have some documentary evidence to support your version of events besides just your “word” because rest assured, your tenant’s “word” will be the exact opposite of yours.

“Reasonable times” has not been defined but I would argue that entry during normal business hours between say 8:30 am – 5 pm would certainly be reasonable.  Also entry on a weekend between 10 am and 5 pm by a landlord that works a full-time job during the week, would also appear to be reasonable to me.  I have a nagging suspicion however that 2 am on a Saturday morning would not be considered “reasonable.”

A landlord should only remain in the tenant’s unit for the amount of time reasonably required to complete the repair, showing, or inspection.

Tenants do not need to be present during the landlord’s entry.  Many tenants mistakenly believe that their presence is required.  They are wrong.  A landlord can enter a tenant’s rental property even if the tenant is not present as long as the aforementioned requirements have been met.  If a landlord wants to accommodate a tenant’s request to be present, he can choose to do so, but it is not required.  Personally, my schedule does not always allow me to limit my expenses, showings or repairs to the times of day that my tenants are home.

If a tenant is home at the time that you are trying to enter their unit and refuses you entry what can you do?  Legally, you are still allowed to enter.  The better question is, what should you do?  I would never force myself into a tenant’s unit (even if I legally have the right to do so) if they had changed the locks on me or if they are standing there yelling at me not to come in.  Maybe I am a bit risk adverse but I didn’t become a landlord to have a tenant throw a frying pan at my head nor to have the cops arrive at my rental property with guns drawn because the tenant told them I was an intruder.

If a tenant denies you entry to their rental unit after you provided them with the proper advance notice, then they are in breach of their rental agreement and state law.  This is grounds for an eviction.

Since I may not want to go to the length of evicting a tenant for denying me entry, I have included a provision in my rental agreement that if a tenant denies me entry after I have provided them with proper notice that they will be assessed a fee of $100.  I have never had to assess the fee but it has been helpful to be able to show my tenant that provision in the rental agreement.  After reviewing the provision with the tenant and explaining why it is necessary for me to enter, and how I legally have the right to enter, the problem is usually resolved.  If for some reason it was not resolved, then that tenant would not be living in my rental property much longer.

When entering, I am a big proponent of the “knock and announce” rule.  What is the “knock and announce” rule, you ask?  Here is a dramatization . . . Imagine me approaching a door . . .

KNOCK, KNOCK, KNOCK (or ring, ring, ring if the tenant’s unit has a doorbell).  I then insert my key and slowly open the door a crack and announce loudly “Hello, this is your landlord, I’m coming in to . . . show the unit . . . unplug the clogged drain . . . make my spring inspection, is anyone home.”  Wait a few seconds and then enter the unit.

Being extra cautious upon entry will hopefully negate the chances of walking in on a tenant showering, being in a state of undress, or engaged in other forms of extra-curricular activity.

Under Wisconsin law, there are even a few situations in which it is not necessary for a landlord to provide advance notice in order to enter a tenant’s unit.  These situations include the following:

1.   When the tenant, knowing of the proposed time of entry, consents in advance to an earlier entry

2.   A health or safety emergency exists

3.   The tenant is absent and the landlord reasonably believes that entry is needed in order to protect the rental unit

An example of such a situation would be if a tenant was not present, and the tenant in the rental unit below her called you and told you that water is leaking from her ceiling. You are legally allowed to enter the tenant’s unit in that situation to determine the source of the water intrusion.  A landlord has every right to enter without notice in that type of situation, to protect his rental property.

There are no published Wisconsin cases that I am aware of that deal with the issue of a landlord’s right to enter a tenant’s rental unit and under what circumstances.  So the only guidance we have are the statutes and regulations mentioned above.  Such situations would be handled on a case by case basis by a court since the specific facts are very important and because there is not bright line rule on when entry is permissible.

If you have a tenant that refuses to allow you to enter your own rental property (or one that has changed the locks to prevent you from doing so) you need to take action.  This is your rental property — your investment.  You have every right to make periodic inspections to insure that your tenants are maintaining your rental property properly.

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Landlords Should Periodically Inspect Their Rental Property . . . or Risk $98,465 In Damage

Last night I read an article about a Virginia landlord that had $98,465 in damage to one of his rental units.  Apparently his tenant was a compulsive hoarder and every room in the home was full from floor to ceiling with trash, soiled clothing, old newspaper, rotten food, and other deberis and excrement.  It cost the landlord over $98,000 to get the unit back into rentable condition.  The landlord’s insurance company refused to pay for the damages claiming that damage from compulsive hoarding was not covered under the dwelling policy.

After finishing the article I thought to myself that the landlord really was partly to blame for allowing the situation to get so out of control.  The landlord should have conducted periodic inspections of the interior of his rental property.  If he had done so, most likely, the landlord would have noticed the accumulation of “stuff” months or even years earlier and could have addressed the issue with the tenant before too much damage occurred.

It is good practice for landlords to periodically inspect the interior of their rental units and Wisconsin law allows for these periodic inspections as long as certain requirements are followed.

Background:

The covenant of quiet use and enjoyment is implied in all rental agreements.  This covenent simply means that the landlord guarantees that the tenant may take possession of the rental unit and that the tenant has the right to privacy and exclusive use of and possession of the property and that the landlord will not interfere with that.

The Law:

In Wisconsin there are limited exceptions to the covenant of quiet use and enjoyment.  One of those exceptions is a landlord’s limited right of entry to a tenant’s rental unit.  Specifically, Wisconsin Administrative Code, ATCP 134.09 (2) and sec. 704.05(2) of the Wisconsin Statutes allows a landlord the ability to enter a tenant’s rental unit for the following:

1.   To inspect the premises

2.   To make repairs

3.   To show the property to a prospective tenant or purchasor

ATCP 134.09(2)(c) allows a landlord to enter a tenant’s rental under circumstances other than the three listed above, as long as those circumstances are set forth in a Nonstandard Rental Provisions document (which must be a separate document from the Rental Agreement) that is signed and/or initialed by the tenant.  So if a landlord always conducts inspections of his/her rental units on the first day of spring and fall, or some other date certain that is known in advance, it might be a good idea to list that information in the NSRP.

Wisconsin also requires other conditions to be met prior to allowing a landlord to enter a tenant’s rental unit.  Those requirements include:

-  The giving of advance notice to the tenant (in most situations)

ATCP 134.09(2) requires at least 12 hours advance notice, however some municipalities – such as Madison — have longer notice requirements, so you will need to check the municipal code where your rental is located. 

I reccomend that my clients give this notice in writing to the tenant and slip it under the door of the rental unit (or if time permits mail it to them).  A landlord should keep a copy of this notice for his/her own files in case a dispute should arise as to whether or not the notice was given.  Wisconsin Legal Blank Company, Inc. has a pre-printed form that they sell entitled “12 Hour Notice” that I drafted for this type of situation.

-  Entry must be at reasonable times

I hope it goes without saying that 2 a.m. in the morning is not a “reasonable” time to enter your tenat’s apartment.  While “reasonable times” is not defined in case law, statutes or administrative provisions,  it would be safe to say that entry during normal business hours would most likely be acceptable. 

-  The landlord may not remain in the unit beyond the reasonable amount of time that it takes to inspect the unit, make repairs, or show the unit to a prospective renter or purchasor.

The purpose of entry should be for a specific reason.  Get in.  Do what you need to do.  Get out.

-  A Landlord must announce his or her presence to any person who may be present in the unit and identify himself/herself.

I usually reccomend ringing the doorbell and knocking on the door several times before entering and then announcing loudly that it is “the landlord” and that “I’m here to conduct my bi-annual inspection” or “I’m here to repair your refrigerator” or whatever the reason for my entry might be.  The last thing a landlord wants to do is open the door to his/her tenant’s apartment and find a half-clothed tenant laying on the couch.

The need for providing advance notice and entering at a reasonable time may be disregarded, according to Wisconsin law, if one of the following applies:

1.  A tenant who is aware of the planned time that the landlord intends to enter the unit, requests or consents in advance, to the entry by the landlord

An example of this would be when you tell your tenant that you will be entering his/her unit to change the batteries in the smoke detector on Friday at 3 pm and the tenant tells you to go ahead and enter the night before if you can, as they will be having guests over on Friday at 3 pm.

2.   A health or safety emergency exists

This exception includes many situations, such as if a tenant falls and is injured in their unit and requires emergency aid, when a tree limb falls through the roof, when an infestation of rodents or bedbugs are discovered, during or after a grease fire, etc. etc.

3.  The tenant is absent from the rental unit and the landlord reasonably believes that entry is needed in order to protect the property from damage

This could include situations where a tenant left the water running causing the tub to overflow which is now damaging the bathroom floor and ceiling of the tenant who lived in the unit below.

The Penalties:

Because the above information is contained in ATCP 134, if a landlord violates any of the above provisions, a landlord may be subject to paying the tenant double his/her damages and the tenant’s actual attorney’s fees.  I am also aware of situations where a tenant has claimed that a landlord entered the rental unit without advance notice and stole the tenant’s personal property — this has resulted in the police being called, trespass citations being issued (not properly in my opinion but they were nonetheless issued) and on one occassion a physical altercation between landlord and tenant which resulted in a temporary restraining order being filed and lengthy litigation.

Tenant’s often mistakenly believe that a landlord cannot enter their unit unless they are present.  A tenant’s presence is not required under the Wisconsin Statutes or ATCP 134.  A landlord is allowed to enter a tenant’s rental unit in the tenant’s absence if the above provisions are otherwise followed (and assuming there is no contrary provision in any applicable municipal code).

What should a landlord do if a tenant denies the landlord entry to the apartment?  This happens more frequently then one would think and I am amazed when landlords call me and ask me if they should force their way into the unit.  Technically, a landlord has the right to enter the unit since a tenant is not allowed to deny entry to a landlord who has complied with the proper notice provisions — but step back and take a deep breath — just because you can legally enter does not mean that you should enter.  Why risk a possible altercation?  Who knows what state of mind (or intoxication) an tenant may be in?  Why risk possible injury?  Why risk the police becoming involved.  Wait a couple of days until tempers have subsided and then explain to the tenant why you need to enter the unit and that legally you have a right to do so.  If the tenant still denies you entry, and there is a valid reason for you to enter the unit, then you may want to consider contacting the local police to see if they would be willing to accompany you during the visit.  You should also consider alternate remedies, like eviction. 

While it is important to remember that a tenant has the right to privacy and sole possession of the rental unit, that does not mean that a landlord should ignore his/her investment.  A landlord should conduct regular and periodic inspections of all rental properties.  I personally inspect my rentals twice per year.  I conduct one inspection in early January when I am making my annual change of the batteries in the smoke detector and carbon monoxide detector.  I conduct my second inspection about 6 months thereafter during the month of June.

Had the Virginia landlord referenced in the article I mentioned earlier conducted periodic inspections of his tenant’s rental unit, he would have discovered his tenant’s hoarding problem and possibly been able to prevent $98,000 in damages that resulted.  Don’t end up in the same or similar situation — make sure that you make periodic inspections of your rental properties.

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