Tristan is a shareholder with the law firm of Petrie+Stocking and focuses his practice in the area of landlord-tenant law representing landlords and property management companies throughout Wisconsin.
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5 Things This Landlords' Attorney Wants For Christmas
With the coming of the holidays, comes list of gifts that people want for Christmas. So I thought I would put together one of my own. So here is a list of the top 5 things that this landlords' lawyer would like for Christmas.
5. That Tenants' Requests For Reasonable Accommodations To Allow for the Keeping of Companion/Comfort Animals Would Actually Be "Reasonable"
The past few years -- and especially this past year -- have seen a large rise in requests by tenants for a reasonable accommodation to landlords' "no pet" or "limited pet" policies specifically to allow for the keeping of a companion/comfort animal. A companion/comfort animal does not need to be specially trained and therefore can be any type of animal including the family dog, cat, gunea pig, or even a miniature horse. A tenant can ask for a reasonable accommodation -- and it should be provided -- as long as the tenant has a disability (i.e. an individual with a physical or mental impairment that substantially limits one or more major life activities) and the accommodation request has a "nexus" to the tenant's disability and will allow them to more fully enjoy a major life activity.
However, somewhere along the line tenants seem to have forgotten about the word "reasonable" in "reasonable accommodations."
It is not reasonable in my opinion to need 5 kittens as companion animals (which were recently born to a landlord-approved pet cat) just because the tenant thinks the kittens are cute and does not want to get rid of the litter.
It is not reasonable in my opinion for a tenant to request a pit bull dog as a reasonable accommodation just because the tenant's relative recently lost their home to foreclosure and can't find a place for their pet "pitty" to live.
It is not reasonable to have to allow a miniature horse as a companion animal because the tenant does not want to have a dog instead because dogs do not live as long as horses do, and if the dog should die it would exacerbate the tenant's mental health issues. Whereas the miniature horse will outlive the tenant so her mental health will be unaffected. Who cares what happens to the miniature horse after the tenant passes.
4. That Tenants Who File Bankruptcy Be Required To Disclose To The Bankruptcy Court That They Are Renters and that the Bankruptcy Court Create A More Efficient Process For The Tenant To "Pay and Stay" or Vacate
If a tenant files for bankruptcy something called the "automatic stay" kicks in that prevents any creditors (yes, that includes landlords) from attempting to collect a debt or in the case of landlords - evict a tenant. Now, tenant/debtors are supposed to disclose in their bankruptcy schedules that they file with the court whether or not they have any "executory contracts or unexpired leases." Without fail, tenants and there bankruptcy attorneys always check the box saying that they have no executory contracts or unexpired leases. I have handled at least 30 of these situations for my landlord clients and not once has the tenant advised the court that they were under an unexpired lease.
A landlord is then required to pay a filing fee, file a motion to lift the automatic stay, wait 14 days for the tenant to object, and if so participate in a hearing before the court, to present evidence that the tenant isn't paying their rent and the landlord should be allowed to proceed to evict the tenant. This process can be expensive and time consuming for a landlord whose hands are legally bound from doing anything until the bankruptcy court says he can.
It would be nice if the court or the bankruptcy trustee would confirm whether or not the debtor is a tenant and whether or not they are up to date with rent and if not, determine if the tenant can get caught up so s/he can stay, or advise the tenant/debtor that they must vacate the landlord's property.
To require a landlord jump through all of these hoops in order to remove a non-paying tenant from his rental property is just another financial drain on landlords. A landlord will spend at least one month (if not more) trying to lift the stay in bankruptcy court. Once that is completed, he then needs to serve the tenant with the appropriate notice, and after that time has elapsed, pay more money to file the eviction, and then wait another 2 weeks or so until the initial appearance in eviction court. As you can see, this process can delay things at least 2 months. So I would like to expedite this somehow. Wishful thinking I know . . . but hey, this is my wish list : )
3. That Tenants Stop Using Jury Trial Demands To "Buy" More Time In Evictions
In my 17+ years of law practice I have probably encountered somewhere between 10-15 requests for a jury trial by a tenant that I am evicting. Not one of those cases have ever resulted in an actual jury being selected. Instead the demand is often made just because it will prolong the case. In Milwaukee County when a jury trial demand is made, the case is tabbed to a large claims judge who often has a very busy caseload and is unable to even get the case into court for a Scheduling Conference for 2 months. Oftentimes, a trial isn't scheduled for months after the Scheduling Conference. On the other hand if a jury trial is not made, the small claims judge in Milwaukee County can hear the eviction within a week in most cases.
I have had jury trial demands filed in failure to pay rent cases where the tenant has no legal defense. Tenant didn't pay rent, notice was properly served, tenant didn't pay past due rent within cure period, and an eviction lawsuit was field. Tenant doesn't deny any of it but wants a jury trial. Now my client gets to sit for months with a non-paying tenant before obtaining a judgement of eviction. And no, landlords rarely ever see those rent amounts from the tenant even if they obtain a money judgment against them later because many tenants are not collectible.
I have had jury trial demands filed in cases where the tenant is being evicted for engaging in criminal activity that is scaring (and at times injuring) fellow tenants and neighbors. Yet, with the jury demand having been made, the landlord, along with the law-abiding tenants and neighbors, have to deal with the scofflaw tenant for months, unless they by chance would get arrested.
The law needs to be changed in this regard. While jury trials are an important part of the judicial system this practice that I am seeing more and more of is clearly an abuse of the system. Perhaps requiring that all jury trials must be held within so many days of the initial appearance or in failure to pay rent cases requiring that all past due rent must be paid up and future rent continue to be paid or the tenant loses his/her right to the jury trial. Something needs to happen to stop this frivolous practice.
2. That All Courts Follow the Law with Regard To Granting "Stays" in Eviction Actions
Sec. 799.44(3), Wis. Stats., is very clear that before a court is allowed to "stay" a writ that the tenant must pay all rent and other charges due as well as any rent that will become due during the period of the "stay." This law is often ignored by the courts to landlords' detriment.
I understand that it is difficult to tell a tenant that you are ordering them to immediately vacate the rental property even when the cause of their non-payment of rent is due to no fault of their own - such as losing a job due to downsizing or health issues -- but that is what the law says. If it is a bad law (and I am not saying that it is) then it can and should be changed through the legislative process.
Let me put this in another context. A tenant that has lost their job or that has encountered a serious medical issue may also not have money to buy food for their family, but that doesn't mean that they are allowed to shoplift food from the grocery store. If they did that they would be arrested.
So why is a landlord required to provide housing for a tenant who's tenancy has been properly terminated and after all proper legal channels have been followed? What makes a landlord so special that s/he gets this special treatment that places them in a different category than any other creditor. Why is a landlord required to house the non-paying tenant to the landlord's financial detriment and risk their ability to continue to provide housing for their paying tenants. Again, for those non-landlords that may be reading this post, most tenants are not collectible, so saying that the landlord will be made whole when they obtain a money judgment against the tenant is not realistic.
1. That All Landlords Join a Landlord Association (such as the Apartment Association of Southeastern Wisconsin - AASEW)
There are more private landlords in Wisconsin than there are teachers but landlords' voices are not anywhere near as powerful as are teachers. The reason for this is that landlords are not organized. Landlords tend to be an independent type that enjoy being their own bosses. That is well and good but landlords need to set that independent spirit aside on occasion for the betterment of themselves and all landlords. Only when landlords unit can positive change occur for them as there is strength in numbers. It is very difficult to survive financially as a landlord these days. But by joining a landlord association, a landlord's life can become a little easier. First, through landlord associations, landlords can create a united voice to challenge bad legislation or champion new legislation. Secondly, landlord associations provide educational opportunities for their members on changes in the law so landlords can stay out of legal trouble. Third, there is camaraderie in joining a landlord association which allows members to rub elbows with other landlords may be facing, or have previously faced, the same struggles that you are having.
If all landlords joined a landlord association and became active in them, we have the money and the numbers to create change that would assist our industry.
Oh by the way Santa - if you cant give me any of my wishes on this list, I will settle for a new toy bike with red and white streamers dangling from the handlebars : )
Happy Holidays everyone!