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Email: tpettit@petriestocking.com
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#1 by Tristan R. Pettit, Esq. on May 24th, 2012
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Tracy – I cannot give legal advice via this blog.
Generally speaking however when a person sign a contract they are bound by it. this is true of leases as well So unless a lease allows you to break it if you buy a house than you cannot. If you thought you might be buying a house in the future then you should have only entered into a month to month rental agreement which would have allowed you more flexibility.
Most good leases do not allow a tenant the ability to break the lease just becasue they changed their mind and decide they want to buy a house.
#2 by Dennis Miller on June 10th, 2012
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Can a co-signer be held acountable if the tenant stays over and has to be evicted.
Thankes
Dennis
#3 by Tristan R. Pettit, Esq. on June 12th, 2012
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Yes, the co-signer is treated just as the tenant and is on the hook just like the tenant. The only difference between the two is that the co-signer does not reside in the rental unit and is not a tenant. But they are “on the hook” for all of the tenant’s obligations. So you evict the tenant and then seek a money judgment (if applicable) agaisnt the tenant and the co-signer.
#4 by Peggy on June 14th, 2012
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Do we have to notify our tenents of these new provisions under the Landlord Omnibus Law; i.e., abandoned property change, etc. ?
If there are two names on the rental agreement, can I give a 30 day notice to just ONE tenent, the one I want out of there?
Thanks, Peggy
#5 by Tristan R. Pettit, Esq. on June 19th, 2012
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Peggy – you do not need to advise your tenants of the change in the law. However, if you want to take advantage of the helpful items of the law — like the abandoned property provisions — then you would need to amend your rental agreement or add an addendum with the required notice language in order to be able to dispose of a tenant’s abandoned proeprty without notice.
Obviously if your rental agreement has some of the illegal provisions in it — I would reccomend that you resolve that issue ASAP.
But there is nothing in the law that requires you to advise your tenants of the law or any changes to it.
Regarding your notice questions — as far as serving a notice on a tenant, notice to one tenant is deemed notice to all. In the case of roommates I would reccomend sending any written correspondence with both of their names on the notice.
#6 by Jenny on July 5th, 2012
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I allowed a friend to store personal property in my basement with the understanding (verbal) that it was to be removed within 2 weeks. Unfortunately, in that timeframe, he was arrested on multiple felony charges and will be going to prison for at least 25 years.
Obviously, he’s not in a position to remove his property, he has no friends or family willing to help him, and I am not willing to spend money to store the property anywhere. None of his property has any significant monetary value – mostly clothing and miscellaneous odds and ends that are worth something only to him.
Since he wasn’t a tenant, what are my legal obligations in disposing of this property? I’d like to donate the clothing that’s in decent shape to Goodwill or Salvation Army and have the rest hauled away in a bulk garbage pickup but I’m stuck with his nasty garbage in my basement and want it out.
Any guidance you can give me would be appreciated. THANKS!
#7 by Tristan R. Pettit, Esq. on July 6th, 2012
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Jenny — I cannot give legal advice via this blog but I can talk about the law related to this issue generally.
You are correct in that he is not a tenant and therefore the protections afforded tenants do not apply.
Generally speaking I would like to get the owner’s consent to dispose of their property regardless of its value — just to protect myself. Have you considered sending him a letter in jail asking him to authorize you to dispose of his property and having him sign the bottom of the page if he consents. If he doesnt you could ask him to name a person that he would authorize you to give it to. That way you would know that he is in agreement. If he doesn’t consent and doesnt allow you to give it to another, then you are back to square one and you will have to decide if you want to take the chance of disposing of it vs. keeping it indefinitely until/if he is released. If you opt to dispose of the property, you may want to take photos of everything so you have evidence of what you disposed of.
good luck
T
#8 by Amy on August 29th, 2012
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Hi! My husband was offered a job in Colorado that we would really like to accept, but we are having an issue with the lady we rent from. Our original lease started on February 1, 2011 and ended on February 2012. After that we just went month-to-month. When we tried to give a sixty day notice she said we couldn’t because winter was coming and we would have to stay through March 31, 2013. She said if we left after the sixty days we would still be responsible until the end of March. This makes no sense to us because we are past the original lease and month-to-month. The part in the lease agreement that states you can’t give notice during the months of October – March was for the original lease. Can she do this to us? Thanks, Amy
#9 by jerry on August 30th, 2012
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HI–we have a home for rent and a couple signed a 1 yr lease, but did not put down 1st mo rent or SD as they needed more time–2 weeks–which was still 2 weeks before occupancy. We kept home listed for rent as a safety valve just in case. Sure enough, they found a reason to change their mind and contend we voided lease by readvertising it for rent! Of course we disagree–and assume they are bound by signed contract. They have said they are not honoring written lease. the lease does not say they must pay the 1st mo rent in advance(our error). Must we wait till 9/1 to rerent and give them proper notice of 5- day quit or pay before we can rerent? We are trying to find diff tenant.. If we rerent before 9/1 and they show up with money, we are really stuck–although dont think that will happen. HOw do you recommend we handle this?
#10 by Tristan R. Pettit, Esq. on August 30th, 2012
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Amy – I am sorry to hear about your predicament but I cannot give legal advice via this blog.
Most likely what your landlord is referring to is a “no move out in winter clause.” Oftentimes when a lease defaults to month to month (or even if it starts out as month to month) there is a no move out in winter months provision. In fact the rental agreement that I use with my tenants (which is month to month) has such a clause in it. It is enforceable as long as the landlord complies with the notice requirements for “automatic renewals.”
You should consult with a lawyer that represents tenants and have him review the rental document to see if such a clause exists in your agreement and if the notice requirements were properly given by the landlord.
T
#11 by Tristan R. Pettit, Esq. on August 30th, 2012
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Hi Jerry — Please understand that I cannot give legal advice via this blog and would reccommend that you retain a lawyer to review your situation and advise you.
I personally do not believe that your choice to continue to advertise the rental would defeat a signed written contract but as I said I cannot give legal advice and have not reviewed the contract etc.
While your lease need not say that the tenant must pasy first month’s rent in advance you should set up a practice in the future to avoid such a similar situation. You know it is a bad sign when before a tenant moves in they are already missing deadlines and asking for exceptions. My personal practice is to accept the security deposit at the same time they sign the rental agreement. No security deposit – no ability to enter into a contract with me. Then they must pay the 1st month’s rent before they get the keys. This is to avoid a situation where you have a signed lease that you must now honor, and go through an eviction actions to remove a tenant from whom you have received no money. That should never happen.
If I were in your shoes I would get in writing that they do not intend to move in and honor their lease and then make your attempts to re-rent and then sue them. If they have moved in our you have given them the keys and occupancy then you will need to serve them with the proper notice and evict.
This really is a tricky situation and very fact intensive – so I highly reccommend you retain a lawyer here.
#12 by jerry on September 10th, 2012
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Hello Sir–the 60-day notice item in leases seems to raise a lot of issues. Our lease and any extension, even if mo-to mo, requires tenants to give 60-day notice. If they dont, and their lease is close to expiring, must they move at end of term unless we agree to an extension? If they do leave , but havent made it clear or given written notice, are they liable for rent after the end of lease term(less any rent collected by our efforts to re-lease) for the 1st of month right after end of lease? Could they be liable for another month rent at end of lease term if they give no notice , or give 30 day notice rather than required 60-day? We alwyas try to rerent, but many times a tenant hasnt given 60 day to co-incide with end of 12 yr term, as they are unsure of plans. Often they give notice at 45 or one month mark after securing another place, leave at end of written lease, but havent given(60-day) notice as required in lease. If we lose a 1/2 month rent as a result, is departing tenant generally liable for that if hasnt given 60-day?
Thanks
#13 by Tristan R. Pettit, Esq. on September 11th, 2012
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Jerry — If your lease is for a specific term and it has no automatic renewal and not reversion to month to month then even if the agreement requires the tenant to give you a 60 day written notice – it will not be legally enforceable — since you know when the term ends and it is also the landlord’s responsibility to make new arrangements with the tenant if you want them to stay. So under that scenario the tenant could vacate on the last day of lease and not be responsible for any further rent. On the other hand you to could file an eviction action against the tenant the day after the lease expires for them holding over.
If however the lease automatically reverts to a month to month or automatically renews for another year then, the 60 day requirement for a notice to vacate by tenant is typically legally enforceable depending on the specific facts because without the tenant providing a notice you have no idea what they are planning on doing.
If the rental agreement is a month to month then the 60 day notice requirement is also legally enforceable because if the tenant didnt provide it you would not know when they were leaving since a month to month tenancy continues indefinitely until terminated.
Hope that helps and it was a great question
T
#14 by Scott on September 12th, 2012
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Hi Tristan,
I have a rare situation and can not find any information. My lease states the tenant needs to provide 45 days notice to renew or vacate at the end of their lease. I am proactive and send them a lease intent letter. My current tenant has refused (after multiple attempts) to tell us if he is staying or going. With only 23 days remaining of the lease, I went to the property and placed my for rent sign in the lawn. The tenant has removed the sign and placed it in the garage. I called and left a message with the tenant stating not to remove the sign, went back and put it out again, only to see he has again removed it. Do I have any options at this point? I have already sent him the ‘move-out reminder’ notice (that the lease is expiring and he needs to set up a walk-through etc) Still no communication from the tenant. My issue is, what can I do (if anything) about him removing my sign and hindering me from finding new tenants?
Thank you in advance.
#15 by Tristan R. Pettit, Esq. on September 25th, 2012
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Hi Scott — Yes, sounds like you definitely need to evict this troublesome tenant. Unfortunately legally there is not a lot you can do about him removing your fo r rent sign. I would document what he is doing in a letter and ask him to stop. You may want to mention that he is hampering your ability to re-rent the unit and as a result a court may hold him responsible for rent after he moves out due to his antics — its a long shot, but assuming he is collectible and you have the time and inclination you could pursue.
You could also make a more substantial for rent sign and then call the cops for criminal damage to property complaint if he does anything to that.
T
#16 by Jean Zanow on September 26th, 2012
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Your blog has given me more information then any other site.Thanks.question: I have a tenant whose lease has expired.I
do not desire to renew.How many days notice do I have to give? If he does not vacate is eviction my only answer? If I get creative and offer a renewal with a rent increase is there a legal limit on what I can charge?
Also,I’m going to court Friday and proposing “holdover charges”
on a different tenant, wish me luck,I’ve only met court employees in Milw.whom are anti Landlord. JZ
#17 by jerry on September 27th, 2012
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In a (small) commercial lease, where a tenant is now being evicted for lack of payment, they send a letter to us claiming “untenantable” due to a mold spot on innner office wall, where water had leaked 2 mos ago from plugged downspout. We spray it and disinfected last mo, and thought all was well. No further correspondence from tenant after that. Dont they have to prove unhealthyness, or true problem, or give us time to correct? They did not initiate vacating–we did due to nonpayment of Sept rent, They have 1 yr left on lease and I think they just want a cheap way out due to slow business. Also does Statute 704 apply to non-residential?
thanks
#18 by Tristan R. Pettit, Esq. on September 28th, 2012
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Hi Jean — Thank you for your kind words. I am glad the blog has been helpful. If you would like even more L-T information the AASEW will be presenting Landlord Boot Camp on October 20th and I will be presenting this all-day seminar. More info can be found at http://www.landlordbootcamp2012.com Hope you can make it.
I cannot give legal advice via this blog and I also don’t know the specifics of your facts or the language of your lease – so I cannot answer your question directly.
Generally speaking however, if you have a lease for a specific term that does not renew for another term and does not revert to a month to month — like the lease that I draft for Wisconsin Legal Blank — then legally you are not required to give any notice of non-renewal. On a practical note however, and a management “est practice” you would want to give enough notice so that the tenant has enough time to find a new place and move out — so at least 60 days, but again look to the language of your lease.
If your lease does renew for another year or revert to a month to month then your lease should state how much notice is required.
Yes, if the tenant doesn’t vacate at the end of a lease term that you opted not to renew, then the only way to legally remove a tenant is through the judicial court process.
There is no legal limit regarding rent increases — typically they are based on what the surrounding area would allow. Raising rent to get a tenant that you want out is not the best way to handle the situation as fair housing (discrimination) issues could arise. If you want to end the tenancy just end it – you need not give a reason and you can end a tenancy (for market-rate properties) for any reason or no reason at all as long as it is not retaliatory or discriminatory — so there is not real reason to raise rent to get a tenant to vacate.
Good luck in court Friday.
#19 by Tristan R. Pettit, Esq. on September 28th, 2012
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Jerry, I cant give legal advice via this blog. Generally speaking however, tenants that are being evicted (in commercial or residential context) often claim untenantability as a defense for why they didn’t pay rent. It is a common ploy and in my experience doesn’t work well. The fact that you took attempts to correct it and heard no further complaints are facts that are positive to you. I would suggest you consult with an attorney that can obtain your specific facts and give you legal advice.
#20 by jack on October 5th, 2012
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HI –So if we return half of tenants SD and list deductions in 21 day letter, and tenant cashes check, arent they accepting the charges/settling issues? Later they sue for return of rest of SD, and claim Ag code violations or improper withholding. Are they able to do so even though they accepted check and cashed? I thought there was this legal idea of satisfaction we could stand on if they accepted and cashed our check??
Thanks for your comments!
#21 by Tristan R. Pettit, Esq. on October 8th, 2012
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Jack — In many contexts your analysis would be correct based on accord and satisfaction. However in residential landlord-tenant law they specifically address your scenario:
See ATCP 134.06(2)(e) which states: A tenant does not waive his or her right to the full amount owed under par. (a) merely by accepting a partial payment of that amount.
#22 by Eunil Lee on October 26th, 2012
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Hello,
I like to know if you are required to have an authorization/license to rent your own property in illinois?
My property is located in unincorporated area of cook county, il. And I noticed that you must give notice about abandonment at signing of lease agreement. Is there way I can still apply this notice? or notice must be at the sign up in order for new law to be in effect instead of old law?
#23 by Eunil Lee on October 26th, 2012
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I realized this is wisconsin, do you know of any attoney who does things like you addressing landlord/tenant laws in detail in organized way and do seminars in illinois? Chicago? or suburb of Chicago?
The change in abandonment only is in wisconsin, not in illinois?
#24 by Tristan R. Pettit, Esq. on October 29th, 2012
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Hhi Eunil — Sorry but I cannot help you as I am not licensed in IL and therefore do not know IL law.
#25 by Tristan R. Pettit, Esq. on October 29th, 2012
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I would recommend contacting the Cook County or Chicago Bar Association. They should be able to put you in touch with a lawyer that knows landlord-tenant law.
Good Luck
T
#26 by jerry on November 12th, 2012
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Hi –I am wondering if in contracting with someone for a lease to own/lease purchase contract if that still falls under the Landlord Tenant rules & regs? Or whether the contract can be structured so that it is basically a sale contract, but of course contigent on the buyer to obtain financing (which is usually deferred a yr or two to provide time for take out financing)
#27 by Tristan R. Pettit, Esq. on November 13th, 2012
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Jerry – I cannot give legal advice via this blog.
Generally speaking however, you can structure as a land contract sale — which is not a landlord tenant relationship and would require you to foreclose if the buyer defaults. Or you structure as a lease with option to buy which would remain a landlord tenant relationship and allow the landlord to evict if tenant defaults.
#28 by Mike on December 1st, 2012
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Hello Sir,
My rental agreement didn’t mention of any notice period I. informed my landlord before 1 month verbally and also after 10 days , I gave an email notice .The email notice period was less than a month( 3 weeks). The landlord is now denying to return my security deposit back.They didn’t inform me while I was there. Is it legal to keep the security deposit even if there is no mention of notice period in my agreement ?Please help.
#29 by Tristan R. Pettit, Esq. on December 3rd, 2012
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Mike — I dont give legal advise via this blog. You should consult an attorney that represents tenants to see see if what your landlord did was legal.
T
#30 by Shawn on December 13th, 2012
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Tristan, I have a question regarding notice to vacate under joint and several liability agreement. If a tenant that resides with another co-tenant submits a notice to vacate with only his signature (lease states that it is fully effective over all tenants), can the other co-tenant reverse that notice by stating there will be no move-out and supersede the first notice without consent from the first tenant? Why or why not?
#31 by Tristan R. Pettit, Esq. on December 19th, 2012
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Shawn – I am unable to give legal advice via this blog. I also am unsure whether I understand your question fully. If you have 2 tenants and one tenant gives LL notice to vacate that very well may be an improper notice based on the terms of the rental agreement. Even if the notice is proper, the other tenant remains in the unit and therefore the rental agreement remains intact as one tenant is still residing there. In that case both tenants (regardless of whether one has left and the other stayed) remain on the hook.
If one tenant wants to leave the other tenant cannot stop them from leaving. Additionally, one tenant cannot give a notice that all tenants will vacate if one tenant doesnt want to vacate. So it sounds as if your situation is very fact intensive and I would recommend you retain a lawyer who would be able to give you legal advice after s/he has obtained all of the relevant facts.
T
#32 by Steve on January 16th, 2013
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Does the change in the law regarding the return of security deposits to commercial tenants apply to all commercial leasing existing on March 31, 2012 or does it only apply to leases entered into after that date? Leases entered into before that date were not drafted with that change in mind.
#33 by jerry on January 22nd, 2013
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I feel a trap being set by a tenant. They have written lease till June, and sent written notice they are moving 3/15. They insist landlord must work to mitigate loss of rent from 3/15 to 6/1 , which in theory we agree and will look to rerent. Tenant is adamant we spend $$ to advertise in Journal, etc for rentor for 3/15 or we will not have worked hard to mitigate their loss and they will be off the hook–no more obligation as of 3/15. We have asked them to advertise and show unit now as its a slow time of year and we have other commitments–which is why our lease comes due in June–more & better prospects, etc. I expect our efforts will step up in March /April as more prospects surface, yet we ask them to show unit because they are wanting to leave early. Are we at risk because we cant drop everything to work on their unit immediately??
#34 by Tristan R. Pettit, Esq. on January 23rd, 2013
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Steve — Below is the section regarding when the applicability of Act 143. Your answer is in section (3). The effective date of th enew law was March 31, 2012.
Section 38 .Initial applicability.
(1)Disposal of property.
(a)At landlord’s discretion. The treatment of sections 321.62 (15) (a), 704.05 (5) (title), (a) (title), (intro.), 1., 2., and 3., (am), (b), (c), and (d), and 704.11 of the statutes first applies to property left behind by a tenant on the effective date of this paragraph.
(b)Notice that property will not be stored. The treatment of section 704.05 (5) (bf) of the statutes first applies to property left behind by a tenant under a rental agreement entered into or renewed on the effective date of this paragraph.
(2) Damages for failure to vacate. The treatment of section 704.27 of the statutes first applies to actions for damages, including eviction actions, that are commenced on the effective date of this subsection.
(3) Return of security deposits.
(a) Timing for return. Except as provided in paragraph (b), the treatment of section 704.28 (4) (b) of the statutes first applies to tenants vacating before the termination date of a rental agreement who vacate the premises on the effective date of this paragraph.
(b) Inconsistent provision. If a rental agreement that is in effect on the effective date of this paragraph contains a provision that is inconsistent with the treatment of section 704.28 (4) (b) of the statutes, the treatment of section 704.28 (4) (b) of the statutes first applies to that rental agreement with respect to the timing of returning a security deposit upon renewal.
(4) Severability of provisions. The treatment of section 704.02 of the statutes first applies to rental agreements that are entered into or renewed on the effective date of this subsection.
(5)Rental agreement void if tenancy may be terminated for crime. The treatment of section 704.44 (9) of the statutes first applies to rental agreements that are entered into or renewed on the effective date of this subsection.
#35 by Tristan R. Pettit, Esq. on January 23rd, 2013
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Jerry — The tenants are correct in that WI law requires you to mitigate their damages by making attempts to re-rent the unit. The law states that you must make “reasonable” efforts and typically those are defined as the same efforts that you would normally take if the unit had become vacant in the normal course of business (i.e. not as a result of the tenant breaking the lease).
So if you typically have open houses — then you should have an open house for this vacancy. If you typically only market via Craig’s List and you don’t use the Journal Sentinel then you should continue to market via Craigs list. Please remember however that the tenant is responsible for any costs of re-rental — so if you incur costs running ads for the vacancy those are the tenants responsibility.
I never reccomend that landlords allow (or require) a tenant to advertise or show the unit. Yes, I understand that they are the ones that broke the lease and that it is not fair that as a result you now have to drop everything and try and re-rent it. Unfortunately life is not always fair. But realize the exposure you are creating for yourself by having the tenant do this work. If the tenant writes an ad on Craig’s List that is discriminatory — that will come back on you as you are the landlord and they are acting as your agent. What if the tenant says something in violation of fair housing laws to a person they are showing the unit to — it will fall on you as well. You are the one that owns real estate. You are the one that has insurance. What if the tenant misrepresents something to the applicant during the showing? What if there if the carpet on your stairs has come loose and the tenant doesnt notice that and fails to point it out to the applicant, who then trips and falls and injures themself — who are they going to sue? Not your tenant.
Even worse would be if you let the tenant select the new tenant for you. Your tenant doesn’t know your screening criteria and even if they do, you cannot insure that they will properly review and evaluate the background information that is so important to the screening process.
I think you get the picture. While it is unfair that you must drop everything and do all of this extra work because the tenant can’t/won’t honor the lease they signed — it is part of landlording and important that you take control of the situation. Do not delegate responsibility to someone that cannot even honor a contract that they signed with you — or in the end you will be sorry.
#36 by Cindi on January 29th, 2013
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I work for a property management firm and recently many of our prospective tenant’s employers use The Work Number to verify employment. There is a fee for using this service much the same as Trans Union etc. My question concerns what we can charge applicants. We currently charge a credit check fee. Can we also charge for employment verification if we must pay a fee to acquire the information?
#37 by Tristan R. Pettit, Esq. on January 31st, 2013
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Cindi – Great question. There is no WI law that I am aware of that prevents you from passing the charge you incurred to the applicant. I would do it if I had to use the Work Number to vet a prospective tenant.