Archive for category State of Wisconsin

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

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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.

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Governor Walker To Sign Wisconsin’s New Landlord-Tenant Law Next Week

I have recently learned that Governor Scott Walker will be signing Senate Bill 179 into law next week Thursday, December 12, 2013 at 8 AM in the Governor’s Conference Room in Madison.

Senate Bill 179 will be signed along with a group of other bills starting at 8 AM that morning.

Those of us involved in the drafting of this bill are happy to see all of the hard work come to a close.

What most people want to know is if the Governor signs the bill into law on December 12th, when will the new law become effective?

All but one section of the new law will become effective as of March 1, 2014 (the 3rd month after enactment).  The section dealing with the towing of vehicles  (sec. 349. Wis. Stats.) will become effective as of July 1, 2014 (the 7th month after enactiment) as the Department of Transportation will need to draft several regulations to flesh out the new towing laws.

 

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SB 179 (“Landlord-Tenant Bill”) Is On It’s Way To Governor Walker To Be Signed Into Law

At about 6:40 pm on October 16, 2013, SB 179 (commonly referred to as the Landlord-Tenant Bill) was concurred by the state Senate after a minor amendment was made in the state Assembly earlier.  The bill passed 18-15 despite attempts to delay the bill via a motion to non-concur.  The bill now goes to the Governor who has 30 days to “call” for the bill and sign it.

If you would like to watch the hearing you can do so by clicking here.  The portion of the hearing dealing with SB 179 starts at approximately 2:58.

This bill which will hopefully become law — absent a veto by the Governor — will makes some major changes to Wisconsin Landlord Tenant law and the small claims eviction procedure.  It also cleans up several of the unintended consequences of Act 143, which also dealt with landlord-tenant law, which became law back on March 31, 2012.

I will be devoting a segment of the AASEW’s upcoming Landlord Boot Camp on October 26, 2013, to discussing SB 179 and its effect on the landlord-tenant landscape.  For more information on the upcoming Boot Camp, including a summary of other topics that will be covered, prior attendees’ testimonials, and how to register to attend, please go to www.LandlordBootCamp2013.com.

Assuming the Governor signs SB 179 into law, I will most likley be posting on this topic again in the near future and offerring my own analysis of the law, but for now I have reproduced for the Wisconsin Legislative Council’s October 14, 2013 memo which summarizes current law in Wisconsin and then summarizes how SB 179 will affect/change current law.

 

This memorandum describes Senate Substitute Amendment 1 to 2013 Senate Bill 179, as amended by Senate Amendments 17 and 18, relating to landlord-tenant law, small claims actions, and towing of vehicles.  In addition, this Memo describes Assembly Amendment 1 to 2013 Senate Bill 179, as passed by the Senate.  The section numbers in brackets refer to the sections of Senate Bill 179 that are described under each heading, below. 

 

RESTRICTIONS ON LOCAL ORDINANCES [Sections 1-4]

Under current law, a city, village, town, or county (municipality) is prohibited from enacting or enforcing certain ordinances relating to landlords and tenants, such as an ordinance imposing a moratorium on eviction actions or an ordinance that places certain limitations on what information a landlord may obtain and use concerning a prospective tenant.  [ss. 66.0104 and 66.1010, Stats.]

Senate Bill 179 additionally prohibits a municipality from enacting or enforcing an ordinance that does any of the following:

  • Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
  • Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
  • Requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.
  • Requires a landlord to communicate to the municipality any information concerning the landlord unless the information is required under federal or state law or is required of all residential real property owners.

Senate Substitute Amendment 1 authorizes a municipality to enact or enforce an ordinance that requires a landlord to communicate to the municipality any information concerning the landlord ifthe information is solely information that will enable a person to contact the owner or, at the option of the owner, an agent of the owner.

Senate Amendment 17 to Senate Substitute Amendment 1 authorizes a municipality to enact or create an ordinance that requires a landlord to communicate information to tenants that is not required to be communicated to tenants under federal or state law if the ordinance has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

Assembly Amendment 1 to Senate Bill 179, as passed by the Senate (i.e., as amended by Senate Substitute Amendment 1 and Senate Amendments 17 and 18) modifies the provision described above that generally prohibits a municipality from enacting or enforcing an ordinance requiring a landlord to communicate to the municipality any information concerning the landlord, unless an exception applies.  Assembly Amendment 1 provides that the general prohibition relates to communication to the municipality of any information concerning the landlord or a tenant, unless an exception applies.

 

NOTIFICATION TO A PROSPECTIVE TENANT OF BUILDING CODE OR HOUSING CODE VIOLATIONS [Section 11]

Under current law, if a landlord has actual knowledgeof any uncorrected building code or housing code violation in the dwelling unit or a common area that presents a significant threat to the prospective tenant’s health or safety, the landlord must disclose the violation to a prospective tenant before entering into a rental agreement or accepting any earnest money or security deposit.  [s. 704.07 (2) (bm), Stats.]

Under Senate Bill 179, the landlord must disclose the types of violations described above only if he or she has received written notice of the violation from a local housing code enforcement agency.

Senate Substitute Amendment 1 deletes this provision from the bill. 

 

COMMISSION OF CRIMES ON RENTAL PROPERTY [Section 18]

Under current law, if a lease contains any of a list of prohibited provisions, the lease is void and unenforceable.  Among the prohibited provisions is a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.  [s. 704.44 (9), Stats.]

Senate Bill 179 repeals the provision of current law describe above.

Senate Substitute Amendment 1 replaces the current law provision described above with a provision that states that the lease is void and unenforceable if it contains a provision that allows the landlord to terminate a tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime.  Victim is defined by reference to s. 950.02 (4), which generally provides that “victim” means a person against whom a crime has been committed, unless he or she is the person charged with or alleged to have committed the crime.

In addition, the substitute amendment requires a lease to include a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats.  The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking.  The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premises. 

The substitute amendment also provides that a lease is void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for criminal activity in relation to the property and the lease does not include the notice regarding domestic abuse protections described above. 

Senate Amendment 18 to Senate Substitute Amendment 1 modifies the language required under the notice of domestic abuse protections.  Under Senate Amendment 18, the notice provides that a tenant has a defense to an eviction action under the circumstances provided in s. 106.50 (5m) (dm), Stats., instead of providing that a tenant may be able to stop an eviction action under such circumstances.

 

TERMINATION OF TENANCY IN MOBILE OR MANUFACTURED HOME COMMUNITIES FOR THREAT OF SERIOUS HARM [No provision in Bill]

Under current law, a landlord may terminate the tenancy of a tenant if the tenant commits one or more acts, including verbal threats, that cause another tenant, or a child of that other tenant, who occupies a dwelling unit in the same single-family rental unit, multi-unit dwelling, or apartment complex as the offending tenant, to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises.  [s. 704.16 (3), Stats.]

Senate Substitute Amendment 1 authorizes a landlord to terminate the tenancy of the tenant of a mobile or manufactured home community who threatens another tenant, or child of another tenant, of the mobile or manufactured home community under the same circumstances, described above. 

 

TIMING OF RETURN OF SECURITY DEPOSIT [Section 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.  [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, if a tenant is evicted, the landlord must return the security deposit to the tenant within 21 days after the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

Senate Substitute Amendment 1 provides that the timing of the return of the security deposit depends on whether the tenant is evicted before or after the termination date of the lease.  If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins.  If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction. 

 

SERVICE OF SUMMONS IN EVICTION ACTION [Section 22]

Under current law, under most circumstances, the summons in an eviction action must be personally served upon the defendant (the tenant), unless this cannot be achieved with “reasonable diligence.”  In this case, the summons may be served by leaving a copy of the summons at the defendant’s usual place of abode in the presence of either:  (1) a competent member of the family who is at least 14 years old; or (2) a competent adult who resides in the abode of the defendant. The person serving the summons must inform the family member or other person of the contents of the summons.  [s. 801.11 (1) (b), Stats.]

Under Senate Bill 179, a court may, by rule, authorize the summons in an eviction to be served by regular mail.

Senate Substitute Amendment 1 provides that use of certified mail shall be required for all eviction cases for which service by mail is authorized by a court. 

 

TIMING OF APPEARANCE AND TRIAL IN EVICTION ACTIONS [Sections 20, 23 and 24]

Under current law, the summons in an eviction action specifies the date that the defendant must appear in court.  That appearance date must be set at not less than five days or more than 30 days after the summons is issued.  [s. 799.05 (3) (b), Stats.]  Also, the court generally sets the matter for a trial or hearing when the tenant makes the initial appearance.  Current law does not specify the required timing of the trial or hearing.  [s. 799.20 (4) and 799.206 (3), Stats.]

Senate Bill 179 changes the appearance date to not less than five days or more than 14 days after the summons is issued.  The bill also specifies that the trial or hearing must be scheduled within 20 days after the date of appearance.

Senate Substitute Amendment 1 changes the appearance date to not less than five days or more than 25 days after the summons is issued.  The substitute amendment also specifies that a trial or hearing on the issue of possession of the premises involved in the action must be held and completed within 30 days after the date of appearance, and provides that this provision applies only to residential tenancies. 

 

WHO MAY APPEAR IN SMALL CLAIMS ACTIONS [Section 21]

Under current law, in any small claims action, a person may commence and prosecute or defend an action or proceeding himself or herself, or by an attorney or a full-time authorized employee of the person.  [s. 799.06 (2), Stats.]

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent.  This provision applies to all small claims actions, not only evictions.

Senate Substitute Amendment 1 clarifies that “member”means a member as defined in s. 183.0102 (15), Stats.:

“Member” means a person who has been admitted to membership in a limited liability company as provided in s. 183.0801 and who has not dissociated from the limited liability company. 

 

DISPOSITION OF PROPERTY LEFT ON RENTAL PREMISES AFTER EVICTION [Sections 9, 10 and 29-46]

Under current law, if a tenant leaves property of value on the rental premises after he or she has been evicted, the property must be removed and stored.  The evicted tenant is notified of the location of the property and provided with the receipt needed to obtain possession of the property.  The evicted tenant is responsible for the costs of storage.  In Milwaukee County, the sheriff must remove and store the property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property.  If the landlord does not choose to remove and store the property, the sheriff must do so.  [s. 799.45 (3), Stats.]

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise.  If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement, or at any other time before the tenant is evicted from the premises.  If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Senate Substitute Amendment 1 deletes the bill provision that authorizes a landlord to provide the notice described “at any time before the tenant is evicted,” and provides that any notice that is provided must be provided either when the tenant enters into or renews the rental agreement. 

 

TOWING OF VEHICLES [Sections 5-8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued.  If the vehicle is taken by a towing service to any location other than a public highway within one mile from the location in which the vehicle was improperly parked, the municipality or the traffic or police officer must, within 24 hours, provide the towing service with the name and last-known address of the registered owner and all lienholders of record.  [s. 349.19 (3m) and (5) (c), Stats.]

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued.  “Properly posted” means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately removed.  The vehicle may be removed by a towing service at the request of the property owner or property owner’s agent, a traffic officer, or a parking enforcer.  A parking enforcer is a person who enforces nonmoving traffic violations and who is employed by a municipality, a county, or the state.  Also, the bill requires the Department of Transportation (DOT) to promulgate rules establishing reasonable charges for removal and storage of vehicles under the provisions described above.

Under Senate Substitute Amendment 1, if a property owner has a vehicle towed under the provisions described above, the towing service must notify a local law enforcement agency of the make, model, and license plate of the vehicle and the location to which the vehicle will be towed.  The law enforcement agency is required to maintain a record of the notice as well as the identification of the towing service.  Also, the substitute amendment prohibits a towing service from removing a vehicle that has been reported to a law enforcement agency as stolen.  

In addition, under the substitute amendment, if requested by the municipality in which the vehicle was illegally parked, the towing service must charge the vehicle owner a service fee not to exceed $35.  The towing service must then remit the service fee to the municipality according to procedures specified in the statute. 

The substitute amendment provides that the rules promulgated by DOT must establish the form, and manner of display, of the notice necessary to qualify as “properly posted” under the provisions described above, as well as guidelines for towing services to notify law enforcement of the removal of a vehicle. 

 

 

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Attorney General States That A Tenant Can Be Required To Pay For Carpet Cleaning Upon Vacating

It is not often that I get to report good news for landlords, so when the opportunity arises I am especially happy to do so.  Today is one of those times.  Earlier today the Wisconsin Attorney General issued a formal legal opinion that states that it is legal for a residential landlord in Wisconsin to require an outgoing tenant to pay to have the carpet in the unit professionally cleaned and to include such a provision in the rental agreement.

It is well known that in Wisconsin a residential landlord cannot withhold the costs of having the carpet professionally cleaned from a tenant’s security deposit.  Wisconsin Administrative Code, ATCP 134.06(3)(c) states that landlords are prohibited from withholding from a security deposits for “normal wear and tear.”  The Note to this administrative code provision states that carpet cleaning is an example of an impermissible basis for withholding a tenant’s security deposit.

What had been unclear until now, is whether or not a landlord could make a tenant pay for the cost to have the carpet professionally cleaned upon vacating and to include such a provision in the rental agreement.  I have personally experienced both courts that held that a landlord could charge a tenant for professional carpet cleaning and others that would not.  Additionally, some judges and court commissioners felt that including a provision in a residential rental agreement requiring a tenant to pay to have the carpeting professionally cleaned upon vacating renders the rental agreement void.

Wisconsin landlords are now on solid ground in knowing that they can require a tenant to pay to have the carpets professionally cleaned upon vacating and that they can include such a provision in their rental agreement.

The key questions and answers from the formal opinion are set forth below:

QUESTION 1:  Based on current law, does routine carpet cleaning at the end of a tenancy fall within the landlord’s duty to keep the premises “in a reasonable state of repair” as prescribed by Wis. Stats. sec. 704.07(2)?

ANSWER:  No, a landlord’s duty to keep the premises in a reasonable state of repair does not encompass routine carpet cleaning.

QUESTION 2:  Would a provision requiring the tenant to pay for professional carpet cleaning, in the absence of negligence or improper use by the tenant, render a rental agreement void under Wis. Stats. sec. 704.44(8)?

ANSWER:  No, because routine carpet cleaning is not a statutorily-imposed obligation of a landlord, assigning this responsibility to a tenant through a contractual provision does not render a rental agreement void.

In its analysis, the Attorney General states that the key issue upon which the answer hinged was whether or not routine carpet cleaning falls under one of the statutorily prescribed obligations of a landlord.  If it does, then the law clearly would prevent a landlord from assigning that obligation to a tenant.  If not, then a landlord could legally assign the obligation to have the carpets professionally cleaned to a tenant.

Under Wisconsin law a landlord is statutorily required to keep a rental unit in a “reasonable state of repair” and such repairs cannot be assigned to a tenant as a result.  Routine carpet cleaning however is not considered to be a ”repair” as a repair typically involves fixing something that is broken.  A carpet that is dirty and needs to be cleaned is not in need of “repair.”

The AG’s analysis then points out that the landlord-tenant statutes do not assign cleaning responsibilities to either the landlord or the tenant.  As such, the parties are free to assign the responsibilities for cleaning in the rental agreement.  Which therefore means that a landlord can require a tenant to pay to have the carpets cleaned if it is in the rental agreement.

Please note however, that while the Attorney General’s legal opinion does allow a landlord to charge a tenant for the costs of having the carpets professionally cleaned, it still does NOT allow a landlord to deduct those costs from the tenant’s security deposit (even if you put such a clause in your Nonstandard Rental Provisions).  So if the tenant doesn’t pay for the carpet cleaning as agreed to in the rental agreement a landlord’s only recourse will be to sue the ex-tenant for the costs.

 

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So Let’s Talk About . . . Companion/Comfort Animals In Rental Properties

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I have been promising that I would blog about this topic for months (could it possibly be over a year even) and the time has finally come.  So let’s talk about companion/comfort animals in rental properties.

Background:

I will use the terms comfort animals and companion animals interchangeably throughout this post.

So we are all on the “same page” a companion animal is an animal that is NOT specifically trained or certified but rather provides a tenant with a disability with emotional support.  Specifically trained and certified animals that assist people with disabilities is beyond the scope of this post.

Wisconsin does not have a specific statute related to comfort animals.  Many people improperly think that sec. 106.50(2r)(4)(bm), Wis. Stats.  entitled “Animals Assisting People with Disabilities” applies to companion animals.  It does not.  That section deals only with specially trained and certified animals that help people with mobility, vision or hearing impairments.  Comfort animals are not specially trained and/or certified and they do assist people with disabilities afecting more than just mobility, hearing and vision.

So what is the applicable Wisconsin law dealing with companion animals or comfort animals if they do not fall under this provision?  Comfort animals are dealt with under a much more broad section of fair housing law dealing with “reasonable accommodations” which can be found at sec. 106.50(2r)(4), Wis. Stats.

A “reasonable accommodation” is a request made by a tenant for a change in a landlord’s rules, policies, practices or services that are associated with housing when such accommodation is necessary to afford an individual equal opportunity to use and enjoy housing.

For example, a request by a tenant to keep a companion animal is a request for a reasonable accommodation to a landlord’s “no pet” policy.

The Law:

It is considered to be discriminatory to refuse to allow a tenant’s request to keep a comfort animal if they meet the following requirements:

1.   The tenant meets the definition of having a disability under Wisconsin or federal law (“an individual with a physical or mental impairment that substantially limits one or more major life activities, a person regarded as having such an impairment, or a person with a record of such an impairment”).

2.   The accommodation must be necessary to afford the disabled tenant an equal opportunity to use and enjoy the rental property.

3.   There must be an identifiable relationship (or nexus) between the tenant’s disability and the request.

So in the case of a request for a companion animal, the tenant must demonstrate a nexus between their disability and the function or service that the companion animal provides.

A landlord may request reliable disability-related information from a tenant that is necessary to: (1) verify that the tenant meets the definition of having a disability, (2) describes the needed accommodation, and (3) shows the relationship between the two.   If the disability is open and obvious then the landlord should not request verification of the disability from the tenant.

The tenant’s specific disability need not even be disclosed – just the fact that the tenant has a disability is sufficient.

A tenant’s request for a reasonable accommodation may be oral or in writing and the actual term “reasonable accommodation” need not be used.  The request can even be made by someone on the tenant’s behalf.

Practical Effects:

In case you are wondering, the threshold that a tenant must meet in order to be able to keep a comfort animal is very low.

It is not even required that the tenant’s doctor confirm that the tenant has a disability.  HUD and DOJ’s Joint Statement on Reasonable Accommodations Under The Fair Housing Act (May 17, 2004) states that a doctor or “other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the tenant’s disability” may provide the verification of the tenant’s disability.

As mentioned previously, a tenant’s comfort animal need not be specially trained or certified.  A comfort/companion animal can be any type of animal that the tenant wants.  It could be the dog or cat (or mouse, rat, lizard, fish, . . .  ) that the tenant owned prior to becoming disabled.  It could be the stray dog that the tenant found walking down the alley last week.  It could be a cat that the tenant’s mother no longer wants in her house.  It could be the rat that the tenant bought at the local pet shop.

I have read articles, case law, and been involved in cases in which all kinds of animals have been requested to serve as a tenant’s companion animals . . .  a miniature horses (because it would live longer than a dog and the tenant’s mental health disability would be exacerbated by the death of another dog that wouldn’t not outlive her), 5 cats (each one allegedly assisted the person with a different aspect of their disability), snakes (tenant was allergic to dander), and pit bulls (why . . . . just because).  There is no limit on the type/breed, size, or age of a companion animal.

So if the tenant wants a Bull Mastiff as their companion animal even though they live in an efficiency apartment and a much smaller dog could serve the same purpose, they can do that.

A landlord can deny a tenant’s request for a companion animal if it:

1.  Poses a direct threat to the health or safety of others unless the threat can be eliminated or greatly reduced.

2.  Results in substantial physical damage to the property of others unless the threat can be eliminated or greatly reduced.

3.  Poses an undue financial burden and administrative burden.

4.  Fundamentally alters the nature of the housing provider’s operations.

For example, a landlord could exclude a tenant’s comfort animal if that animal’s behavior poses a direct threat because it attacked another tenant.

In order to make a decision to deny a tenant’s reasonable accommodation request to keep an animal that poses a direct threat to others safety, you will be required to go through a very fact intensive analysis.  You cannot just refuse the tenant’s pit bull comfort animal just because you might believe that all pit bulls are inherently dangerous.  There must be a direct threat not just a speculative risk.   Even if the animal was once dangerous, if the tenant takes the animal to obedience training, administers medication, or purchases the animal equipment (like a muzzle) which causes the animal to no longer be dangerous, then it may no longer be reasonable to exclude the animal.

I have worked with many landlords and management companies in analyzing whether a tenant’s request for a reasonable accommodation to keep a companion animal should be granted.  Without a doubt the single most difficult concept for my clients to accept is that a comfort animal IS NOT A PET.

I find it easier for landlords to understand this concept if they think of the comfort animal as an assistive device such as a wheelchair, crutches,  or pain medication.  By thinking this way, many landlords will be better able to keep themselves out of trouble.  Let me explain provide an example.

One of my clients generally understood that he had to allow his tenant to keep a comfort animal but he was wondering if he could at the very least require the tenant (and the companion animal) to live in the one building in his apartment complex that allowed pets.  It was a very innocent question and one that I sure many landlords might have themselves.

The answer is a resounding “NO.”  Why is that?

Remember, a companion animal is not a pet.  Again, think of the companion animal as an assistive device such as a wheelchair.  Would it be acceptable to require all tenants that use wheelchairs to live in one building together?   Would it be OK to require all tenants that are prescribed antidepressant medication to live on the same floor?  Of course not.  Well the same goes with the tenant with the companion animal.

Since comfort animals are not pets a landlord is also not allowed to make the tenant that has one enter into a Pet Agreement or pay a monthly pet fee or even a pet deposit.

Having said that, a tenant that has a companion animal is still responsible for the animal’s behavior and any damage that it may cause.  For example, the tenant must still pick up after the companion animal.  The tenant must still keep the comfort animal on a leash and prevent it from jumping on or harming others.  The tenant must still prevent the comfort animal from making excessive noise or damaging the rental property.

If a tenant does not take responsibility for the actions of their companion animal a landlord has every right to serve that tenant with the appropriate notice to correct breach or vacate and evict if them if needed.  Since comfort animals are not specially trained or certified poor behavior is often an issue.  I have had to evict several tenants with companion animals as a result of their poor behavior.   In one case the companion animal which happened to be a dog repeatedly escapeed from the rental unit and ran free in the common areas of the building.  Another case the animal (a dog again) bit another tenant.  Another, involved a dog that crapped all over the lawn and the tenant refised to pick up after it.

Conclusion:

The popularity of comfort/companion animals is not waning.  I expect that landlords and management companies will be getting more and more requests as more people are being diagnosed and treated for mental health issues for which a companion animal may prove helpful.  Not to mention that many war veterans are returning with PTSD, depression, and/or anxiety, for which comfort animals are being prescribed.  And there will always be those tenants that just want to have a pet without having to pay a pet fee or move to a rental unit that allows pets, so they buy a pet, play the system, and “disguise” their pet as a comfort animal.

If you have not already dealt with a request by a tenant for a reasonable accommodation to your “no pet” or “limited pet” policy, I am certain that you soon will.  As such, it is very important that you educate yourself on the applicable laws so that you can properly handle such a request from a tenant and not run afoul of federal or state laws.

If you would like to learn more about comfort animals, reasonable accomodations, and fair housing (discrimination) law considering attending the AASEW’s upcoming LANDLORD BOOT CAMP on February 23rd, 2013.

 04-30-13 UPDATE:  HUD has issued a Notice on Assistance Animals and Reasonable Accomodations For Persons with Disabilities.  See my post on this.

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New Landlord Omnibus Law: Odds and Ends

There has been a lot of discussion about the new Landlord Tenant law in Wisconisn (2011 Wisconsin Act 143) since it became law on March 31, 2012.  Some people’s views seem similar to mine while others have interpreted the law completely differently than I do.  Here is a link to one law firm’s summary that in my opinion is completely off base, but then again they are Minnesota lawyers so we may have to give them a pass : ).  But really guys, the new law did not create a new right for landlord’s do deduct from a tenant’s security deposit — have you ever heard of ATCP 134.

I guess only time will tell how the law in interpreted by the courts in Wisconsin.  One thing that I know for sure is that the politicians in Madison will be unable to correct any errors, or clarify and vagueness, in the new law until 2013 when they are back in session.  So we are stuck with this for awhile and must make do.

The AASEW will be devoting it’s June membership meeting (June 18, 2012 at 7 pm) to the new law and we hope to invite both landlord advocates and tenant advocates alike to present so that all sides can be presented.  You will not want to miss this meeting.  Come learn what the new law is and what you need to do in order to be in compliance.  There will be no charge to AASEW members but we will be charging $25 for non-members to attend.

While I personally do not have anything new to add on the new law that I haven’t said already in prior posts, I thought I would provide links to several items relevant to the new law that people might find interesting and useful.

Here is a copy of the newly enacted law – Act 143

Here is an overview of the new law by the Wisconsin Legislative Council

Here is a copy of the newly revised Chapter 704 (Landlord and Tenant) of the Wisconsin Stattutes which includes all of the changes/additions — so I no longer have to carry around Act 143 : )

Here is an article that I recently wrote on the new law for the Wisconsin State Bar’s Inside Track blog which includes several interesting comments on the new law by local lawyers.

Here’s a blog article by my friend Tim Ballering about how the new law affects those landlords who are currently using a crime free lease addendum or something similar.

Thanks for reading

T

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2011 Wisconsin Act 143 (Landlord Omnibus Law) Also Applies To Commercial Landlord-Tenant Law

While this blog primarily focuses on residential landlord-tenant law, on occasion I also touch on issues applicable to commercial landlord-tenant law.  This is one such instance.

Commercial landlord-tenant is more straightforward than residential in my opinion because commercial tenancies are less regulated than residential.  Typically what a commercial landlord and tenant agreed to and placed into their lease agreement is what governs.  The Wisconsin Administrative Code’s ATCP 134 does not apply to commercial leases and most of Chapter 704 of the Wisconsin Statutes does not apply to commercial leases unless (1) the parties had no written lease, or (2) the lease was silent as to certain issues (see sec. 704.03 and 704.05 respectively).

Well, that has all changed now with the passage of 2011 Wisconsin Act 143 which was signed into law last week and will take effect on March 31, 2012.

While almost all of the attention paid to the new law surrounded its effects on residential landlord-tenant law, the law also impacts the commercial arena as well.  I too was caught up in the effect Act 143 would have on residential landlords and missed the applicability of this new law to commercial landlords initially  — thanks to Bob Anderson of Legal Aid of Wisconsin for redirecting me : )

As I have mentioned in prior posts, this legislation was fast-tracked for some reason and rushing new laws through the legislative process is never a good thing.  In fact it is a recipe for disaster.

It appears that the legislators did not realize that Senate Bill 466 — the precursor to Act 143 — was written in such a way as to encompass commercial landlord-tenant law.  When it was brought to their attention, a quick amendment was made to exclude one portion of the new law (the section that makes a rental agreement void if it contains certain prohibited language) from the commercial arena, but apparently there was not enough time to deal with the other sections of the new law, which now will apply to both commercial and residential tenancies.

So what do we have?

The following provisions of Act 143 apply to both commercial landlord-tenant law as well as residential:

1.  Moratorium on evictions

2.  Severability of rental agreement provisions

3.  Disposition of abandoned property

4.  Requirement that landlords receive an award of holdover damages when appropriate

5.  Acceptance of past due rents

6.  Withholding from and return of security deposits

7.  Making any violation of chapter 704 a possible unfair trade practice

If you are unfamiliar with the above sections of the new law you should read my prior post summarizing the new law.

Number 1-5 above actually benefit commercial landlords.  However numbers 6 and 7 are problematic

By adding ATCP 134.06, which focuses on the withholding from and the return of security deposits, to chapter 704, the new law has now made these requirements applicable to commercial landlords as well.  Prior to Act 143 being passed, there was no law addressing what a commercial landlord could withhold from a commercial tenant’s security deposit, nor was there any law regarding when that security deposit (or an itemization as to how the security deposit was applied) had to be returned to the commercial tenant.  Well thanks to Act 143, now there is.

Act 143 allows a commercial landlord to only make deductions for the following items from a commercial tenant’s security deposit:

704.28 Withholding from and return of security deposits.  (1) Standard withholding provisions.  When a landlord returns a security deposit to a tenant after the tenant vacates the premises, the landlord may withhold from the full amount of the security deposit only amounts reasonably necessary to pay for any of the following:

(a)  Except as provided in sub. (3), tenant damage, waste, or neglect of the premises.

(b)  Unpaid rent for which the tenant is legally responsible, subject to s. 704.29.

(c)  Payment that the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.

(d)  Payment that the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant’s nonpayment.

(e)  Unpaid monthly municipal permit fees assessed against the tenant by a local unit of government under s. 66.0435 (3), to the extent that the landlord becomes liable for the tenant’s nonpayment.

(f)  Any other payment for a reason provided in a nonstandard rental provision document described in sub. (2).

So if a commercial landlord would now like to deduct anything other then the items listed in (a) – (e) above, then that landlord needs to start using a separate written document entitled “Nonstandard Rental Provisions” which must list the additional fees/costs that can be deducted from a commercial tenant’s security deposit.

Additionally, Act 143 now requires a commercial landlord to either (1) return the tenant’s security deposit to them, or (2) send them an itemization explaining how that security deposit was applied, within 21 days of the following:

(4) Timing for return.  A landlord shall deliver or mail to a tenant the full amount of any security deposit paid by the tenant, less any amounts that may be withheld under subs. (1) and (2), within 21 days after any of the following:

(a)  If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.

(b)  If the tenant vacates the premises before the termination date of the rental agreement, the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

(c)  If the tenant vacates the premises after the termination date of the rental agreement, the date on which the landlord learns that the tenant has vacated the premises.

(d)  If the tenant is evicted, the date on which a writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.

Commercial landlords never had to worry about that 21 day time frame before — now they do.  Needless to say it is much more difficult and time consuming to do a walkthrough of a giant commercial space and itemize any damages or cleaning charges than it is for a 500 square foot residential rental unit.  I’m not exactly sure how commercial landlords will be able to comply with this time frame, but they will need to find a way, or else they may have to to their tenant double damages and attorney’s fees.  Which leads me to the next concern . . .

Act 143 now makes any violation of chapter 704 a possible violation of unfair trade practices, which pursuant to sec. 100.20, Wis. Stats. allows a tenant to sue a landlord for double damages and attorney’s fees.  Prior to Act 143 a commercial landlord was not in this predicament because unfair trade practices were set forth in ATCP 134 which only applied to residential tenancies.  But now that Act 143 incorporates some provisions of ATCP 134 into chapter 704 — and chapter 704 applies to commercial landlord-tenant relations — things are different.

Here is the language of the new law:

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 under this chapter.

I guess the only positive is that the new law says “may constitute” instead of “shall constitute” however to a commercial landlord that never had to worry about anything they did constituting an unfair trade practice and subjecting themselves to being sued for double damages and attorney’s fees, I’m sure this will be of little consolation.

So not only will Act 143 require commercial landlords to make some modifications to the language in their leases, but it will require them to completely change how they run their commercial proeprty management businesses starting March 31, 2012 —- 2 DAYS FROM NOW!!!!!

 

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