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

Posted by Tristan R. Pettit, Esq. in ATCP 134, State of Wisconsin, Right of Entry / Comments

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

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

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

Background:

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

The Law:

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

1.   To inspect the premises

2.   To make repairs

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

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

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

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

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

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

-  Entry must be at reasonable times

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

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

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

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

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

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

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

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

2.   A health or safety emergency exists

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

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

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

The Penalties:

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

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

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

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

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