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45 Comments

  • #1 by Debbie on June 14th, 2010

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    Love this site! Thank you!

    I have a question regarding ‘automatic renewal’ clause in a lease. The Property I manage, was purchased by owner I work for and many existing leases had an automatice renewal clause. If we do NOT notify does it still auto renew or does it go month to month. We have let them go with out notifing expecting they would automaticly be on Month-to-month status. Is this correct or does it have to state that in the terms of the lease? [this lease does not state that]

  • #2 by Tristan R. Pettit, Esq. on June 15th, 2010

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    Debbie – Thank you for your kind words. I am glad that you find my blog helpful.

    Automatic renewal clauses are not enforceable unless the landlord provides the tenant with the proper notice of the auto renewal. Proper notice would be giving the tenant at least 15 days but no more than 30 days notice on top of any required notice set forht in the rental agreement.

    For instance, lets say you had a lease that automatically renews for another year. At least 15 days before the end of the lease but no more than 30 days you must notify the tenant in writing that the lease will auto renew. This “notice” period reminds the tenant that if they don’t do something proactive (i.e. give you notice that they are leaving or otherwise move out) that they will be on the hook for another year.

    If you properly notify the tenant of the renewal and then 1 month into the new lease the tenant vacates, you can hold the tenant responsible for the remainder of the lease (subject to your duty to mitigate). If you fail to give the tenant the notice and the tenant still vacates 1 month later then you will not be able to enforce the auto renewal of the lease against the tenant.

  • #3 by James Trentadue on January 18th, 2011

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    I just attended the seminar tonight and thought it was very informative. Great job!!! I was under the impression the forms on Wisconsin legal blank were free. Did I misunderstand or am I just looking in the wrong section?

  • #4 by Tristan R. Pettit, Esq. on January 18th, 2011

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    James — thanks for attending the meeting and I am glad that you enjoyed it.

    Wisconsin Legal Blank is a printer and legal forms retailer. They do sell the landlord-tenant law forms, which I draft for them, for a price. The price is very reasonable however and you can rest assured that the forms are legal in Wisconsin unlike many of the rental forms sold elsewhere.

    T

  • #5 by Peter on June 9th, 2011

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    Great site, but your subscribe button appears to be broken.

  • #6 by Kara on July 5th, 2011

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    Tristan,

    Can I use the 5 DAY notice to pay rent or vacate if the tenant has signed a lease for longer than one year, but is only in their 4th month of tenancy and has failed to pay rent in full for the first time within one year? Or, am I required to give them 30 days simply because their lease length is longer than one year?

    Also, your blog subscription link is indeed broken:)

    Kara

  • #7 by Tristan R. Pettit, Esq. on July 5th, 2011

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    Kara – Thank you for letting me know about the broken subscription button — I will have our IT vendor look into that.

    If a tenant breaches a lease for more than 1 year then a 30 day notice must be used unless the parties consented to a different notice period in writing and is signed by both parties.

    If you are using the rental agreement that I draft for Wisconsin Legal Blank Co., there is such language included that if the tenant signed the rental agreement, would allow you to serve a 5 day notice or 14 day notice, even if the lease is for more than 1 year.

    If you are using a different rental agreement then you will need to see if such language is included that would alloow you to serve something other than a 30 day notice. If not, you are stuck with a 30 day notice.

  • #8 by Kara on July 5th, 2011

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    Hooray! I used your rental agreement! So, if I understand you correctly, I can use the 5 day notice. Right?

    While fretting about various notices to serve, I looked on WI Legal Blank’s website and didn’t find a 30 day notice. Just an FYI.

    Thanks for all of your help. I hope that I can repay you someday by needing an attorney. At the same time, you have helped me (several times) not need to hire you. Thanks!

    Kara

  • #9 by Tristan R. Pettit, Esq. on July 6th, 2011

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    Yes, you can use a 5 day in that case.

    Since residential landlrods do not want to have a lease for more than 1 year — we have decided that selling a 30 day notice at WLB will only confuse purchasors since 30 day notices are rarely used.

    T

  • #10 by Terri on August 12th, 2011

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    My tennants decided to take the phrase you can caulk the bathroom as you can do what ever you please & I will pick up the tab. After looking at the tub the tennant decided to look at the sink and vanity. It was water damaged and he decided to remove it without permission or notifying me. Am I on the hook for the replacement costs? Is there a statute or law that covers this? I think the tennant should pay half if not more.
    Thanks.

  • #11 by Tristan R. Pettit, Esq. on August 12th, 2011

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    Sammy — Thanks for your question. Did this occur in Wisconsin? Each state has its own laws so I can’t answer your question for any state other than Wisconsin. In Wisconsin, what you described would most likley be considered to be damage which a landlord can sue a tenant for or deduct from tenant’s security deposit. If the person is still a tenant, it may also be a brach of their rental agreement and as such may be a basis to evict the tneant. You should consult with an attorny in your jurisdiction to explore your options

    T

  • #12 by Terri on August 22nd, 2011

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    FYI: Yes this took place in Wisconsin, Milwaukee County.

  • #13 by Marcy on August 23rd, 2011

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    Love the site! I have been using it often.
    I have a tenant who pays a portion of his rent and balance is paid by section 8 housing. I only signed a month to month with him because of a variety of issues. I gave him 60 day notice to leave premises. He claims that I am “evicting” him because he is disabled and he will fight me and win in court because he is disabled. Although I cannot sue “section 8″ should I still evict him if he “holds over”? I have avoided even re-renting unit because I fear he will not leave. Is he correct? Will they give me trouble in court because he is “disabled”? He has lists and lists of items he said he can “fight” us with, but basically I feel that in court all I have to prove is that I gave him proper notice, he didn’t pay his rent, etc. Is that correct? Section 8 told me to evict him if he doesn’t move out, but told me they will not continue to pay their portion of the rent once the notice has expired. I really don’t care about the rent for a month or two-I just want him out. Any suggestions?

  • #14 by Tristan R. Pettit, Esq. on August 29th, 2011

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    Marcy — I cannot give leagl advice via this blog. You should retain and consult with an attorney since there is a chance that this tenant will sue you for discrimination and/or file a discrimination complaint with the feds or state.

  • #15 by Sarah on December 14th, 2011

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    Tristin,

    I currently have a tenant in WI in which their lease will expire the end of January 2012. I do not want to continue the lease due to the following: they keep the premise very dirty, and they pay their rent late the majority of the time. I have never given them a notice of late rent. I have done a few inspections of the property (never taken pictures) but have had to have them fix a few things already. Can I and how should I let them know that their lease will not be renewed? Thx

  • #16 by Tristan R. Pettit, Esq. on December 22nd, 2011

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    Sarah — A landlord is allowed to non renew a tenant’s lease (unless it is a section 8 site-based project tenant or a tenant living in a mobile home) for any reason or no reason at all as long as the reason is not discriminatory or retaliatory. So you do have the right to not renew your tenant’s lease if this is a market rate rental. You are not required to provide a reason for non-renewal to the tenant if it is a market rate rental.. You just want to insure that the reason you are not renewing is not discriminatory or retaliatory.

  • #17 by Dennis on February 6th, 2012

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    I have a situation where a tenant was evicted (court order) and had a deadline of the 29th. She moved out on the 4th leaving a fair amount of her property. After photographing everything in the condition it was left I had her property moved out that evening to a warehouse for storage.She then contacted me on the 5th wanted to pick up just one box. She owes me several months rent, the cost to move and store her property, cleaning and damage to the apartment. Can she request to pick up just one box of her items without paying anything? If so how many times can she do this before she has to pay, or do I just let her get her stuff and then when we go back to court present the costs at that time?

    Your blog is a great source of info for landlords and I utilize all the rental forms at WLP. Thanks and I will watch for your reply.

  • #18 by Tristan R. Pettit, Esq. on February 6th, 2012

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    Dennis — You cannot hold a tenant’s personal property in order to get them to pay rent. There are some situations in which a landlord will be considered to have a lien on a tenant’s property for the amount of rent owed but that requires that the lien language be included in a nonstandard rental provisions document which the tenant reviewed and signed when entering into the landlord – tenant relationship.

    There are a lot fo areas where a landlord can make a mistake enforcing the lien and I generally do not reccomend that a landlord try to include lien language in the NSRP becasue if one detail is not followed then an argument can be made that the landlord violated ATCP 134 (which talks about the lien language) and the tenant can sue for double damages and atty. fees. I have not yet written a post on this issue – but maybe I should.

    In your facts as presented it sounds as if the tenant abandoned her property. Hopefully you complied with the abandoned proerty law and sent the tenant a notice of the abandoned property. If you did that then you only need hold the proeprty for 30 days after which you can dispose of it. If you gave that abandoned proeprty notice to the tenant you also can charge them a reasonable storage rate in order for them to claim the property (but that storage rate should not be related to the amount of rent owed or damage to the property etc). I should write a post about abandoned proeprty too — thanks for the idea.

    Personally, I would just return the box of belonging to the tenant and get them to sign something that everything else can be disposed of. Then I would consider suing the tenant in small claims for the past due rent, damage to the proeprty and anything else that you may legally entitled to. Whether or not the ex-tenant is collectible is another issue . . .

  • #19 by julie on April 10th, 2012

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    I have a tenants thatboth signed a one year lease and one of them moved out after five months and now wants her name off the lease. the other tenant had someone else move in with out my consent. I found out by doing an inspection of the rental. He now asked if this person could be put on the lease. The tenant that moved out wants the apartment back and him to move out. Her mother co-signed for her. I am not sure how to proceed at this point. The other tenants are not taking care of the property and I believe this is why she want of the lease if her remains in the rental.

  • #20 by Tristan R. Pettit, Esq. on April 10th, 2012

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    Julie — It sounds like this is a mess. Unfortuntely I cannot give legal advice via this blog but I would recommend that you contact an attorney to assist you with this.

    From the limited facts that I know, you will most likley need to serve a notice on the tenant for moving in another roommate without your consent, unless you conduct a background check and agree to add the new roommate to the lease. If the roommmates doesnt vacate per the notice you could then evict everyone including the tenant that vacated in the middle of the lease.

    The facts are extremely important as to how this is handled so I would retain assistance

    T

  • #21 by Karen on April 16th, 2012

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    We have a tenant who signed a year lease, the tenant has stayed there for 3 months, tenants wants to move out so they can move in with someone else, no issues or complaints on either side. Tenant has asked us for options of lease termination.

    Other than the sub-lease option or tenant being responsible for rent, until it is re-rented, is there a surrender fee that we can charge the tenant, since there are 9 months left on the lease, can we ask for a surrender charge for 4.5 months of rent or is there a limit on this fee? What if we re-rent the apt. before the 4.5 months are up, do we need to return a portion of this surrender fee?

    Thanks in advance for your time!

  • #22 by Tristan R. Pettit, Esq. on April 18th, 2012

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    Karen – Please understand that I cannot give legal advice via this blog.

    You have touched on the 3 options. I have personally represented clients in havign a tenant “buy out” their lease in similar situations. I believe that a landlord can do this as the landlord is risking losing money as is the tenant. In my opinion the buy out amount has been bargained for and even if the next day someone re-rents the unit the tenant still got peace of mind by limiting their exposure knowing full well that they could’ve been “on the hook” for much more.

  • #23 by jerry on May 4th, 2012

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    Heres a diff situation: 4 guys lease a home–all sign.
    On termination, one guy says pay SD back to me and I will distribute to all. I am thinking SD check(for most of deposit) should be made out to all 4. they are saying that is messy and want it made out to one tenant. Does making it out to one leave landlord open for claim by others ??? I think one check same for initial deposit from 1 guy, but all 4 signed lease and were liable. your suggestion???

  • #24 by Tristan R. Pettit, Esq. on May 7th, 2012

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    Jerry — Wisconsin law requires that a landlord return a security deposit check made payable to all tenants listed on the rental agreement unless the tenants, in writing, identify a payee. This can be found in Wisconsin Administrative Code, ATCP 134.06(2)(d).

  • #25 by jerry on May 15th, 2012

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    Here’s a techincality ??—If you get a pet deposit and keep it for pet damages,and dont invade the “security deposit”, is that deposit still subject to double damages charges by tenant under AG code—- if found that charges were excessive or unwarranted against the pet deposit??

  • #26 by Tristan R. Pettit, Esq. on May 15th, 2012

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    There are differing views on this. If you read the definition of “security deposit” in ATCP 134 – it would appear that a pet deposit (or even a restoration agreement deposit) would be considered to be a security deposit – if those deposits are greater than 1 months rent. I disagree with that interpretation as it would render things like restoration agreements meaningless.

    So in my opinion, a pet deposit is not a securtiy deposit and is if improperly withheld is not subject to double damages and atty. fees claims. But I am sure that there are tenant advocates who would wholeheartedly disagree with me.

    I have not had to litigate this issue so I do not know how a court would handle such a situation. I do not believe there is any Wisconsin caselaw on the issue either.

    Good question.

  • #27 by jerry on June 7th, 2012

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    If tenant breaks lease by leaving early, and no break lease agreement between parties, may landlord send 21 day letter and withhold all of SD until end of original(written) lease agreement? I further guess that if break lease deal is made and signed, then if less cost than SD amount, that balance of SD must then be returned within 21 days of vacating? Last item: If tenant vacates on last day of month, but hold keys for 10 more days before returning or sending back last set, are they potentially liable for added rent into new month?
    Thank you

  • #28 by Tristan R. Pettit, Esq. on June 8th, 2012

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    Jerry – Please understand that I cannot give legal advice via this blog. So I can only talk generally about the applicable law and cannot apply the law to your specific legal facts – as that would be giving legal advice.

    Under the old law (pre April 1, 2012) a landlord would still be required to either return a security deposit to a tenant or send them an itemization of how th esecurity deposit was applied within 21 days of the “surrender” of the rental property — even if the tenant broke the lease.

    Under the new law, a landlord is not required to comply with the above if the tenant vacates the premises prior to the end of the lease term. So the 21 days requirement in that situation would apply once the unit was re-rented (if that occurs prior to the end of the lease term) or if the unit is not re-rented, the 21 days would start counting at the end of the lease term.

    So which law applies to your situation depends on when the tenant vacated in respect to the passage of th enew law.

    The definition of “surrender” as set forth in ATCP 134 does not refer to the turning in of keys. Oftentimes keys are never turned in and that does not mean that the tenant hasn’t surrendered the property. But if a tenant does turn in the keys, a pretty good argument can be made that that is the date of surrender. If heys are turned in after the 2st day of a month then a strong argument can be made that the tenant is responsible for that subject to the landlord’s duty to mitigate tenant’s damages by trying to re-rent the unit.

    Hope that helps.

  • #29 by jerry on June 9th, 2012

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    I see–in this case tenant is leaving end of June but lease goes thru end of year. We understand the 21-day rule/letter, but more specifically–even if we re-rent it–is it legal to withhold the security deposit until the end of the departing tenant original lease(Dec)–until such time as the “replacement” tenant has paid rent throughout the period the initial tenant was liable for?
    In other words, there is no guarantee the replacement tenant will fully pay all rent that initial tenant was liable for–hence the desire to hold security deposit until that time(again this would be with no formal break-lease agreement signed)
    I hope I clarified the question. Thanks!

  • #30 by Tristan R. Pettit, Esq. on June 12th, 2012

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    Under 704.28, The new law says that A landlord shall deliver or mail to a tenant the full amount of security deposit paid by tenant, less any amountsthat may be withheld, within 21 days of the follwoing:

    (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 re-rents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

    My interpretation of that statute is that if tenants breaks lease and you re-rent it you need to send your security deposit itemization letter to your old tenant (or return the security deposit) no later than the 1st day of the new tenant’s tenancy. Waiting to send out the security deposit itemization letter until after the lease term ended if you re-rented the unit before the end of the lease terms would not be in compliance with the law, in my opinion.

  • #31 by jerry on December 27th, 2012

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    If a tenant moves out due to wanting to break lease early(4 mos), but wont sign a break lease agreement, when can we consider the unit abandoned and change locks to rerent? They didnt turn in keys unfortunately, but stopped paying rent We give them a 5-day Quit or Pay, and they ignored it.
    So they are moved “out” but havent fully surrendered as wont turn in keys. They want us to rerent before giving back keys, but wont sign break lease–which is a problem.

  • #32 by Tristan R. Pettit, Esq. on December 27th, 2012

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    Jerry — Great question and it is very fact-specific. While I cant give legal advice via this blog, if I could I would have to ask you many additional follow up questions to fully evaluate whether or not the tenant has vacated or not. While turning in keys or signing a document indicating that they are “out” is the best evidence there are other facts that would support a conclusion that the tenant has vacated. What is the condition of the property? Are personal items left behind? When is the last time you or other saw the tenants? Is mail still getting delivered?

    I would suggest calling the tenant and asking them if they have vacated the unit. If they say yes, then send them a letter memorializing that conversation. Confirm that any property left behind has been abandoned and they have disposed of it.

    My assumption is that they don’t want to sign your lease break document because of some language in it unrelated to whether or not they have vacated – most likely it concerns language about them being responsible for the rent in the future and they are afraid to sign that as they don’t know the law in WI regarding a landlord’s duty to make efforts to re-rent.

    If you are unsure. Serve them a 5 day notice and way they don’t pay then file an eviction action and have the Sheriff declare the unit abandoned.

    A landlord is not required to guess if a tenant is out or not — especially when if the landlord comes to the wrong conclusion and changes the locks s/he can be sued for a self-help (illegal) eviction.

    The above is not legal advice. I would recommend you retain a lawyer to assist you in the above decision and how to proceed.

  • #33 by julie on December 31st, 2012

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    Does a notice of rent increase need to be sent by certified mail?

  • #34 by Tristan R. Pettit, Esq. on January 15th, 2013

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    A notice to increase rent in a month to month tenancy must comply with the notice requirements in ch. 704. It also must comply with the service of notice requirements. Once option to serve a notice is via certified mail. there are other options as well. I would refer you to my post on serving notices as the law set forth in that post would be applicable to notices of rent increase.

  • #35 by Chris on February 24th, 2014

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    If I use a carbonless form for the Applicant Screening Criteria form that WLB issues, do I have to send the applicant a copy? If so, could I ask them if they want a copy and if they say NO, would that release my obligation? If they don’t mark yes or no can I have a clause that says if they don’t mark yes or no, that their signature acknowledges they will not get a copy returned.

  • #36 by Tristan R. Pettit, Esq. on February 24th, 2014

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    It is not required that a landlord hand out their screenign criteria. Many landlords do not. So you are not required to hand it out. Many larger landlords and management companies do hand theirs out as the are hoping that applicants will self-screen.

    Hope that helps

    T

  • #37 by Sharon on March 7th, 2014

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    I have a deceased tenant with no family, no will, just friends, and has a POA for Health only. When can I change the lock? Who has the authority to take his estate? Whom shall I send the Security Deposit refund/21 day letter? Is there as statute that will back me up on this?

  • #38 by Nancy on March 18th, 2014

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    We have a tenant who caused considerable damage to a bathtub in a newly renoved apartment. They insist the tub was defective; the plumber who originally installed the tub feels someone kicked a hole in it, and the manufacturer will not honor the warranty because the tub was not defective.
    Repairs are almost $3,000 and we feel the tenant should pay for the damage. Is the 5 day notice to approach this? Do we have to give them a certain number of days to pay before we issue the 5 day?
    Thanks – your site is very helpful.

  • #39 by Tristan R. Pettit, Esq. on April 18th, 2014

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    Hi Nancy — If a lease has a provision requiring a tenant to pay for damage and you believe that the tenant caused damage, then you could serve the tenant a notice for breach of lease (other than non-payment of rent). What type of notice you serve (5 day, 14 day etc). depends on the type of rental agreement you have. Depending on the type of notice you send, and if the tenant does not cure the breach (if 5 day notice) or vacate (if 14 day notice) then the next step would be to evict. So you need to decide if you are willing to evict based on this issue and then analyze if the court you would bring the eviction in is a court that would feel that damage to a bathtub is a significant enough breach to evict someone over.

    I would assume that the testimony of your expert – the plumber — would hold weight as to if the tub was defective or damages by tenant.

    Since I cannot give legal advice via this blog and you are not my client I would recommend that you retain a lawyer knowledgeable in this area of law to assist you in analyzing this issue and your options.

    Good luck

  • #40 by jerry on May 25th, 2014

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    HI –who is at fault if a tenant signs lease, pays 1st mo rent, but wont take occupancy of property because WE has disconnected gas & electric service after departure of previous tenant. New tenant applied but WE needed to verify ownership info, which we did, and yet WE did not connect service after that for applicant. New tenant claims if was because owner did not supply all info, but all WE would say was tenant had to provide more info. For whatever reason tenant didn’t get service, and decided to back out and take a diff place, and wants rent back for the month since they claim landlord prevented them from having gas & electric service. We moved ahead to rerent and not intending to refund the rent for month.

  • #41 by Tristan R. Pettit, Esq. on May 28th, 2014

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    Hi Jerry — thanks for your question. Please understand that I cannot provide legal advice via this blog and that is what you are asking for when you ask “who is at fault” under your specific fact situation.

    I would recommend that you contact and retain an attorney to assist you in that determination. Tenant’s if they feel they are in the right often sue a landlord for failure to return their security deposit and if the court agrees that the landlord improperly retain the security deposit (or even a portion of it) the court is required to award the tenant double his/her damages and their reasonable atty. fees (assuming they hire an atty). So this could be an expensive decision to make.

    Your situation is very fact-specific — as most are — and will require a careful analysis of the facts, specifically why the new tenant could not get WE energy service started.

    Good luck

    T

  • #42 by Brian on June 13th, 2014

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    Do tenants who hold over after termination of a month-to- month rental agreement still retain their rights to exclusive possession while they are holding over?.

  • #43 by Tristan R. Pettit, Esq. on June 20th, 2014

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    Brian — I cannot give legal advice via this blog. Generally speaking however a landlord has a limited right to enter his property with proper notice or in the case of emergency whether the tenant is a holdover or not. Please refer to my post on a Landlord’s right to enter the rental property for more information.

    thanks

  • #44 by Carla on August 17th, 2014

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    Lease expired in 2012, tenants stayed on as month to month. We saw we had illegal provision in original lease. If the written lease is expired for 2 yrs, could tenants still sue for double damages for illegal provision or can we claim original lease expired? In Wisconsin, Rock Co. Thank you

  • #45 by Tristan R. Pettit, Esq. on August 25th, 2014

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    Carla — I cannot give legal advice via this blog. The statute of limitations for a breach of contract claim is 6 years from the breach. So technically, a tenant could sue a landlord up to 6 years after a breach. But remember that in order to sue a landlord, the tenant must have some form of damages. What damages did the tenant suffer as a result of your lease having some illegal provisions in it? Did you force them to stay for the entire lease term and they wanted to vacate earlier? If they have not suffered some form of damage then even though there is a technical violation of the law, they may not have a case. I would recommend you locate a landlord-tenant attorney in Rock County to retain and evaluate any exposure that you may have.

    T

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