Archive for category State of Wisconsin

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

Feb 12

Posted by Tristan R. Pettit, Esq. in Assistance Animals, Companion/Comfort Animals, Fair Housing / Discrimination, Reasonable Accomodations, State of Wisconsin | 7 Comments

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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

Apr 11

Posted by Tristan R. Pettit, Esq. in Act 143 (Landlord's Omnibus Law), Commercial L-T Law, Legislation, State of Wisconsin | 1 Comment

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

Mar 29

Posted by Tristan R. Pettit, Esq. in Act 143 (Landlord's Omnibus Law), ATCP 134, Attorney's Fees, Commercial L-T Law, Holdover Damages, Landlord Liability, Legislation, Property Management, Rental Agreements, Rental Documents, Security Deposit, State of Wisconsin | 4 Comments

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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Landlord’s Omnibus Bill Signed Into Law – Read It Now

Mar 23

Posted by Tristan R. Pettit, Esq. in AASEW, Act 143 (Landlord's Omnibus Law), ATCP 134, Legislation, Rental Agreements, Rental Documents, State of Wisconsin | 3 Comments

Governor Walker did sign the Landlord’s Omnibus Bill into law.

I appreciate the effort of everyone that called the Governor’s office asking him to veto the bill due to its deficiencies.

Here is a link to the new law.  Much easier to read than having to go back and forth between the orginal bill, the Substitute bill and the two amendments.

The two main concerns that I have with the law and which caused me to ask that the bill be vetoed. They are section 35M and section 36.

The AASEW has already spoken with Sen. Lassee’s office regarding these two major problems and I will keep you informed if and when anything is done about them.

And yes, I will be reviewing all of Wisconsin Legal Blank’s forms in the near future and making the necessary revisions – if needed – and will let you know when they will be available : )

Landlord’s Omnibus Bill — with Amendments — To Be Signed Into Law Today

Mar 20

Posted by Tristan R. Pettit, Esq. in Act 143 (Landlord's Omnibus Law), ATCP 134, Legislation, Rental Agreements, Rental Documents, State of Wisconsin | 7 Comments

One of the biggest pieces of pro-Landlord legislation in quite some time was passed by the Wisconsin Senate and adopted by the Assembly recently and will be signed into law by Governor Walker today.  Unfortunately some of the pro-Landlord provisions were amended, diluted, or removed.

I am certainly not denouncing this new law.  Many aspects of it will be very helpful to landlords.  I just wish that more time had been allowed — the bill was fast-tracked — to allow for more discussion, thought and input and allowing for more notice.  For instance, many of us in the rental industry were given one day advance notice before the public hearing on the bill which prevented many of us from attending.

I will attempt to summarize the new law in this post.  As this new law plays out in the “real world” I am sure that I will be devoting additional blog posts to each provision in more detail.

The proposed effective date of this new law is March 31, 2012.  So many of us will need to make some additions and/or modifications to our rental documents prior to that date.

 

Bankground of Legislation

The Landlord’s mnibus bill (Senate Bill 466) was put on the “fast track” for reasons unknown to me.  It was introduced on February 13, 2012 by Senator Lassee.  A Substitute Amendement 1 was offered by Senator Lassee on February 29, 2012.  Senator Waangard then offered the first amendment to the Substitute Amendment on March 6th which was passed March 13th.  Senator Lassee then offered a second amendment to the Substitute Amendment on March 12th which was passed on March 13th.  The bill will be signed into law by Governor Walker today – March 21st.  Approximately one month from introduction to passage into law is very fast for the legislative process.

The key provisions of the new law are:

 

1.   Moratorium on Evictions

This provision of the original bill remained untouched by the Substitute Amendment and the two amendments to the Substitute Amendment.  The new law prohibits any municipality from imposing a moratorium on eviction actions.   If a municipality has a current ordinance that contradicts this new law it cannnot be enforced.

We now must hope that individual counties, courts, and commissioners adhere to this law.  While I don’t anticipate courts ignoring this new law, I do anticipate court’s continuing to use the “stay” provisions of sec. 799.44(3) to give tenants additional time to vacate during the holidays.  So while municipalities will no longer be allowed to impose moratoriums, courts can still prevent evictions during holidays, creating the same result.

 

2.   Severability of Rental Agreement Provisions

The original bill stated that any provision could be severed from the agreement.  So if a landlord inadvertantly included a provision that was found to be improper or retaliatory in nature it could be removed and the remainder of the agreement could be enforced.

The Substitute Amendment diluted the above considerably by adding that if a rental agreement contains one of the “7 Deadly Sins” set forth in ATCP 134.08, the inclusion of any of those provisions cannot be removed and will render the entire rental agreement void and therefore unenforceable.

Amendment 1 to the Substitute Amendment went a step further and added an 8th illegal provision that if included in a rental agreement will cause the rental agreement to be void.  The new illegal provision would include any language that allows a landlord to terminate a tenant’s tenancy if a crime is committed in or on the rental property, even if the tenant couldn’t reasonably have prevented the crime.

So in the end, the new law only allows the severability of certain rental provisions.  If your rental agreement contains one of the 7 prohibited provisions set forth in ATCP 134.08 or the new prohibited provision created by this new law, your rental agreement will still be be void and unenforceable.  Essentially, the new law takes the regulation ATCP 134.08 and codifies it into law.

More tragic is what the “8th Deady Sin” has most likely done to some other pro-Landlord legislation that I had hoped would become law — the “Crime-Free Lease Addendum” bill.  If you read my prior post on the Crime-Free Lease Addendum bill you will see that this 8th Deadly Sin language effectively decapitates this proposed bill.  This is a major disappointment as I believe that had the Crime-Free Lease Addendum bill been passed it would have been the most significant piece of pro-Landlord legislation in years.  Instead the “odds and ends” Landlord Omnibus bill seems to have killed it.  Hopefully, I am wrong and it can be resurrected.

 

3.   Dispostion of Tenant’s Abandoned Property

Once again, the original version of this bill was awesome.  It stated that any personal property left behind by a tenant could be considered abandoned and disposed of immediately in the landlord’s discretion.

The Substitute Amendment modified the original bill by adding that any medical prescriptions and/or medical equipment left behind by the tenant must be held by the Landlord for 7 days.  The Substitute Amendment also added that written notice must be sent to the tenant (and any secured party) prior to disposing of any titled vehicles or mobile homes deemed abandoned.  I could live with both of those modifications.

However, the amendments to the Substitute Amendment added language that will require landlords to jump through a few hoops.  The new law requires that a landlord provide written notice to the tenant at the time of entering into the rental agreement, and at each renewal of the rental agreement, informing the tenant that the landlord will not hold any property left by the tenant and that such property will be deemed abandoned and will be disposed of.  Failure to provide this written notice to the tenant requires a landlord hold the abandoned property fpr a period of time as set forth in sec. 704.05 (5), Wis. Stats.

Essentially landlords will now be required to add a new language to their rental agreements – and any renewal agreements – advising tenants that any property left behind will be considered abandoned and can be disposed of.  Looks like there will be a revised Rental Agreement being sold at Wisconsin Legal Blank Co., in the near future : )

 

4.   Information Check-In Form

This is one of the provisions of the original bill that I didn’t care for.  A landlord will now be required to provide a standardized information check in sheet to each tenant that contains an itemized description of the premises.  The Substitute Amendment merely added that this form must be given to the tenant at the time of occupancy rather than at the time of signing of the rental agreement.

As I understand this law, this does not just mean that the landlord can give his new tenant a blank Information Check-In form to fill in — which many landlords are already doing.  Rather it means that the landlord must completely and thoroughly fill out the Information Check-In form to adequately describe the condition of the rental unit and give it to the tenant.  So if you are not thorough in your description of the renal unit this document could be used against you by the tenant, after the tenancy has ended.  This new provision of the law will clearly cause additional work for landlords and I fear could harm the less detail-oriented landlords out there when pursuing a tenant for damages to the unit or withholding portions of the tenant’s security deposit for damages.

 

5.   Holdover Damages Are Mandated

The new law requires that landlords be awarded holdover damages.  If a tenant stays in the rental unit beyond his tenancy, the landlord is now legally entitled to – at a minimum – double the daily rent for the time period after the tenancy ended (i.e. the notice expired) until the tenant actually vacates the unit.

This is a positive change because current law (sec. 704.27) only states that a landlord “may” be awarded holdover damages — and some courts would not award landlords these damages.  The new law says that a court “shall” award a landlord holdover damages, at a minimum.

 

6.   Withholding From A Tenant’s Security Deposit

The new law has merely codified the provision of ATCP 134.06(3), which states that a landlord is allowed to withhold the following from a tenant’s security deposit: (a) Tenant damage, waste or neglect of the premises, (b) Unpaid rent for which the tenant is legally responsible, (c) Payment which the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent, (d) Payment which 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 mobile home parking fees which a local unit of government has assessed against the tenant to the extent that the landlord becomes liable for the tenant’s nonpayment, (f) Other reasons authorized in the Nonstandard Rental Provisions.

The new law also adopts the portions of ATCP 134.06 which state that a landlord cannot withhold from a tenant’s security deposit for normal “wear and tear” or other losses which the tenant cannot reasonably be held responsible.

 

7.   Timing For Return of Security Deposit

The original bill indicated that in situations where the tenant broke the lease prior to the end of the term that the landlord need not return the security deposit or provide an accounting of how the security deposit was applied until 21 days after the lease term ended or within 21 days of a new tenant taking occupancy.  This langauge is a substantial improvement over current law as it allows a landlord to hold the security deposit until he is able to determine if any future rent will owed by the breaching tenant if the landlord cannot locate a new tenant to re-rent the property to.  I explain this issue in more detail in my earlier post on the Landlord’s Omnibus Bill.

The Substitute Amendment waters this down a bit.  The new law will now codifies ATCP 134.06(2)(a) and states that a landlord shall deliver or mail to a tenant the security deposit or itemization of how the security deposit was applied within 21 days after any of the following: (a) if the tenant vacates on the last day of the rental agreement, the date on which the rental agreement terminates, (b) if the tenant vacates before the end of the rental agreement, then the date on which the rental agreement terminates or, if the unit is re-rented before the end of the rental agreement, then the date on which the new tenancy begins, (c) if the tenant vacates after the last day of the rental agreement, the date on which the landlord learns that the tenant vacated, (d) if the tenant was evicted, the date on which the writ was executed or the date that the landlord learns that the tenant vacated.

So the new law kept the good part of the original bill but by codifying ATCP 134.06(2)(a) the landlord must return a tenant’s security deposit or send out the itemization of how the security deposit was applied earlier than when the original bill stated in situations where the tenant was evicted.

 

8.   Disclosure of Code Violations

The original bill required that a landlord disclose to any prospective tenant any uncorrected building code or housing code violations prior to the signing of a rental agreement, accepting of a security deposit or accepting of earnest money.

The second Amendment to the Substitute Amendment modified the original bill and as a result the new law requires a landlord to disclose to a new tenant any uncorrected building code or housing code violations if the landlord has actual knowledge of the violation (rather than if the landlord had received notice of the violation from a housing code enforcement agency as under the original bill).

Specifically the new law requires the disclosure to the new tenant if the following four conditions are met: (a) landlord has actual knowledge of the violation, (b) the violation affects the rental unit or a common area, (c) the violation presents a significant threat to the tenant’s health or safety, (d) the violation has not been corrected.

 

9.   Request for Repairs

The orginal bill required that a tenant first notify a landlord in writing of any repair or maintenance issue, and then allow adequate time for the landlord to address the issue, before reporting the problem to the building inspector, elected official, or housing code enforement agency.  The Substitute Amendment removed this provision in its entirety so the law has not changed — tenants are allowed to call whomever they want to complain about maintenance issues without any requirement that they first notify the landlord of the problem.

 

10.   Acceptance of Past Due Rent

The new law states that if a landlord has filed an eviction against a tenant and the landlord accepts past due rent from the tenant during the course of the eviction, that the court cannot dismiss the eviction solely based on the landlord’s acceptance of past due rent from the tenant.

I really like this provision of the new law becasue currently, many tenants and their attorneys argue that if an eviction is pending and a landlord accepts past due rent from a tenant, that the landlord’s acceptance of that rent has effectively “waived” the landlord’s right to proceed with the eviction.

 

11.   Tenant Remedies

The Substitute Amendment added that any violation of chapter 704, including the provisions of the new bill, may constitute an unfair trade practice which may allow the tenant to sue a landlord for double damages and attorney’s fees.

I don’t like this new provision of the law for one simple reason.  I believe it will be used by tenants and tenant’s attorneys to seek double damages and attorney’s fees whenever a landlord allegedly violates any provision of chapter 704, whether the violation is a true unfair trade practice violation or not.  Only the provisions of ATCP 134, which will be codified in ch. 704 under this new law, deal with unfair trade practices.  Nonetheless, I anticipate that we will see some very creative arguments by tenant’s and their attorneys as to why a tenant should be awarded double damages and attorney’s fees for violations of chapter 704 that are not unfair trade practice violations.

 

Now we will have to wait and see how this new law “plays out” in the real world of landlording.  Some of the key things everyone will need to address before March 31, 2012, when the law takes effect are:

1.  Make sure any rental agreement you enter into with a tenant after March 31, 2012, does not contain any language that would be in violation of the “8th Deadly Sin” which essentially means eliminating or modifying any language similar to that found in the Crime-Free Lease Addendum.

2.   Make sure to add language in your rental agreement, and any renewal documents, stating that any property left behind by the tenant will be considered to be abandoned and will be disposed of by the landlord without any further notice to tenant (except for medical prescriptions and medical devices, mobile homes and titled vehicles).

3.   Rename your Check-In / Check Out Sheet as “Information Check-In Sheet” and insure that you provide any new tenants with a completed copy of the form thoroughly documenting the condition of the rental unit.

4.   Disclose any code violations that you have actual knowledge of that may present a significant threat to the tenant’s health or safety before entering into a rental agreement or accepting a security deposit or earnest money.

Good Luck Everyone

ADDITION:  3/21/12 – Make sure you read my 3/21/12 post about why I now think this new law will actually hurt landlords more than help them

 

ADDED 4/11/12 — Here is the link to the new law.

 

ADDED 4/11/12 – Here is a link to an article I recently authored on the new law.

 

ADDED 4/11/12 – Here is a link to the newly revised Wisconsin Statutes Chapter 704 re: Landlord and Tenant

 

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

Jan 3

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, Collections, Credit Checks, De Novo Hearings, Earnest Money, Emergency Assistance, Evictions, Execution of Writ, Fair Housing / Discrimination, Holdover Damages, Landlord Liability, Late Fees, Lead-Based Paint, Milwaukee County, Mitigation of Damages / Re-Renting, Notices, Pets, Property Management, Protected Classes, Reasonable Accomodations, Reasonable Modifications, Rejecting Rental Applicants, Rental Agreements, Rental Documents, Right of Entry, Roommates, Screening Tenants, Security Deposit, Self-Help Evictions, Seminars, Small Claims Court, Smoke Detectors, State of Wisconsin, Tenant Damage, Untenantability, Walkthroughs | 2 Comments

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

Oct 27

Posted by Tristan R. Pettit, Esq. in ATCP 134, Legislation, State of Wisconsin | 3 Comments

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

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

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

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

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

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

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

 

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

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