Posts Tagged 5 Day Notice

With A Month To Month Rental Agreement A Landlord Has More Options Than Just The 5 Day Notice

One reason many landlords choose to enter into a month to month tenancy (m2m) with a tenant rather than a 1 year lease (or other term lease) is because it is easier to remove a tenant under a m2m tenancy.

In a m2m tenancy a landlord has the choice of serving a tenant with a 5 Day Notice for failure to pay rent,  a 14 Day Notice for failure to pay rent or for any other non-rent breach, or a 28 Day Notice.  One of the notices — the 28 Day Notice — can legally terminate a m2m tenancy without the tenant even having committed a breach.

The 5 Day Notice:

Under a m2m tenancy a landlord has the option to serve the tenant a 5 Day Notice if the tenant fails to pay rent.  A 5 Day Notice allows the tenant the right to pay the past due rent within the 5 day cure period and if that is done then the tenancy continues and the tenant can remain.  If the tenant fails to pay rent within the 5 days then the tenancy is terminated and the landlord may file an eviction action against the tenant if they have not already vacated.

Please be aware however that the Wisconsin Statutes do not allow a landlord the option of serving a 5 Day Notice on a M2M tenant for a breach other than non-payment of rent.  See sec. 704.17(1)(b), Wis. Stats.  It is not clear why the law is written this way and it is my opinion that is should be changed because not all landlords wish to terminate a tenant’s tenancy with a 14 day notice just because they breached the rental agreement for something other than paying rent.  Although as written, Wisconsin law seems to require this.

     NOTE:  I am not sure why, but many landlords believe that they are required to serve a tenant with a 14 Day Notice after the tenant has been served — and not cured – a 5 Day Notice.  This is not true and is not required under Wisconsin law.  If a tenant is served a 5 Day Notice for committing a breach and does not cure the breach within 5 days the landlord is NOT required to then serve the tenant with a 14 Day Notice.  If a 5 Day Notice is not cured (and the tenant has not voluntarily vacated the property) then the landlord should immediately file an eviction action to remove the tenant.  This is true whether the tenant is under a m2m tenancy or under a term lease.

The 14 Day Notice:

If a tenant commits a breach under a m2m tenancy the landlord can legally bypass the 5 Day Notice and proceed directly to a 14 Day Notice.  Under a 14 Day Notice the tenancy will terminate at the end of the 14 days and the tenant has no right to cure the breach and remain.  At the end of the 14 days the landlord is entitled to file an eviction to remove the tenant if they have not vacated.  A 14 Day Notice is basically a “1 strike and you are out” notice.  Landlords using m2m rental agreements do not have to give a tenant the opportunity to cure the breach.

This is a key difference between a m2m tenancy versus a term lease.  If a tenant commits a breach for the first time under a term lease, the tenant must be given the opportunity to cure the breach.  A landlord using a term lease can only serve a tenant with a 14 Day Notice if this is the tenant’s second time committing breach within a 12 month period and the tenant was previously served a 5 Day Notice for the same or similar breach.

The 28 Day Notice:

The other major distinction between a term lease and a m2m tenancy is that a tenant under a m2m can have their tenancy terminated even if they have not committed a breach with a 28 Day Notice.  So a landlord using a m2m rental agreement has the option to issue his/her tenant a 28 Day Notice to vacate for any reason or no reason at all.  The only restriction is that the landlord cannot serve a 28 Day Notice to retaliate or discriminate against a tenant.

Summary:

Under a lease for term a landlord may only terminate the lease if the tenant has committed a breach.  If it is the first time that the tenant has committed a breach, a landlord must serve the tenant with a 5 Day Notice which allows the tenant the opportunity to cure the breach.

A tenant under a m2m tenancy is not afforded the same protections.  A m2m tenant can be removed even if no breach has been committed by simply serving them with a 28 Day Notice.  If the tenant has committed a breach, the landlord can choose to serve a 14 Day Notice (which does not allow the tenant the opportunity to cure the breach), a 5 Day Notice if the tenant fails to pay rent (which does allow the tenant the opportunity to cure the breach and remain as a tenant), or a 14 Day Notice if the tenant has committed a breach for something other than non-payment of rent (which does not allow the tenant the opportunity to cure the breach).

The ease in removing a tenant under a m2m tenancy is a significant reason for first time landlords, landlords that have had difficulty with past tenants, or any landlord that wants to have flexibility to consider using a m2m rather than the ol’ standby 1 year lease.  I personally only offer my new tenants a m2m rental agreement.  It is only after a period of time has passed and the tenant has proven to me that they will pay their rent on time and that they will treat my rental property with care — in other words they have demonstrated responsibility — that I will offer them the opportunity to enter into a 1 year lease.

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Newly Revised 5-Day Notice To Pay Rent or Vacate Now Available at Wisconsin Legal Blank

As many of you know I am the author of the set of Landlord-Tenant forms that are sold at Wisconsin Legal Blank Co., Inc.  I am currently in the process of reviewing and updating all of the L-T forms as well as creating a few new ones.  At this time however, I wanted to alert you that the revised 5-Day Notice to Pay Rent or Vacate is now available for sale at WLB.

Essentailly the revisions to the Notice include the following:

-  I have added language that states that the tenant will still be in default and subject to eviction if they make only a partial payment and/or make a full payment after the 5 day cure period has elapsed.  It is my hope that by adding this language it will better protect a landlord that accepts a partial payment or late payment from having their eviction lawsuit dismissed based on a legal theory called “waiver.”

          NOTE:  The best way to avoid a “waiver” arguement is to not accept any partial payment or any payment that is made after the 5 day period has elapsed.  Having said that, I am aware that it is very difficult for a landlord to turn away money that s/he is almost certain to never see again if the landlord is evicting a tenant.  So if you decide that you want to keep the partial or late payment then the next best option to avoid the tenant prevailing on a “waiver” argument is to place the payment in escrow  – do not cash the check!! — and send the tenant a letter — which I refer to as a “No Waiver” letter — which essentially says that the landlord has received the partial or late payment and that the money will be held in escrow until after the court has decided whether or not to grant the eviction.  The ‘No Waiver” letter should also state that the money will be appplied to any past due amounts owed after the eviction has been decided and that by holding the money in escrow the landlord is not waiving his/her right to continue with the eviction against the tenant and that it is the landlord’s intent to proceed with the eviction and have the tenant evicted.  The new language added that has been added to the revised 5-Day Notice now available at WLB has been added as a “safety net” should the landlord not follow one of the two options set forth above.

- I have referenced the applicable Wisconsin Statutes regarding 5 day notices.

- I have made a few other grammatical changes.

I will be sure and let you know when other updated landlord-tenant forms are available at WLB.

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How To Legally Serve A 5-Day Notice To Pay Rent or Vacate

There are basically 4 ways in which you can legally serve a tenant with a 5-Day Notice To Pay Rent or Vacate.  First, you can personally serve the tenant with the notice.  Second, you can serve them by what I refer to as a “substituted” service.  Third, you can “post and mail” the notice to the tenant.  Fourth, you can serve the tenant via certified or registered mail.

Landlords in Wisconsin are legally allowed to serve the notice to pay or quit on the tenant themselves.  This is very different from the service of the eviction lawsuit (summons and complaint) which Wisconsin law will not allow to be served by a landlord or his/her agent.

Set forth below the are the 4 service options (as I categorize them) and the pros and cons of each option.

1.     Personal Service:  This form of service occurs when the notice is physically handed to the tenant.  While this option sounds pretty simple it often ends up being more complicated.  It becomes complicated because many landlords believe that if they cannot serve the tenant personally after the first attempt that they are allowed to post the notice on the door and be done with it — WRONG.  Wisconsin Statutes require that the Landlord use “reasonable diligence” before they can resort to service via ”posting and mailing.”  “Reasonable diligence” is not defined in the statutes.  As such, what constitutes “reasonable diligence” is decided by the court commissioner or judge that is hearing your case – and oftentimes the definition of “reasonable diligence” will change depending on which judge or commissioner you are before.

In Milwaukee County it has been unofficially declared that “reasonable diligence” means you must make at least 3 different attempts to personally serve the tenant and those 3 differernt attempts must occur on 3 different days and at 3 different times.  For example, if you tried to serve the notice on the tenant on Monday at 8 am and they were not home, you would then have to wait until Tuesday to make your 2nd attempt in the afternoon.  If you still couldn’t personally serve the tenant on Tuesday then you would need to come back on Wednesday and to attempt to serve the tenant again but this time in the evening hours.  Three different days at three different times of day.  So if your tenant is home and answers the door then personal service is pretty easy.  However, if they are not home or are dodging service then you could waste 3-4 days before you can legally “post and mail” the notice.  This is an unecessary delay. 

Another drawback to personal service is the fact that you may end up face to face with your tenant.  If there is some animosity between you and the tenant (as there often is when the tenant realizes that you will be evicting them if they don’t pay rent) personal sevice of the notice could result in a personal confrontation.

2.     Substituted Service:  The second option is what I refer to as “substituted service” and essentially means you are serving someone else with the notice on behalf of the tenant.  I almost never recommend that a client opt for substituted service because of all of the potential problems.  Under section 704.21 of the Wisconsin Statutes you can serve a tenant by substituted service by serving a “competent family member who is at least 14 years old and who has been informed of the contents of the notice” or by “leaving a copy of the notice with a person apparently in charge, or occupying, the premises and mailing a copy to the tenant’s last known address.”

There are many potential pitfalls with substituted service.  First, you will need to inquire as to the age of the person you are giving the notice to to insure that they are at least 14 years old.  Second, you need to tell them what the notice is and what it means.  I have been involved in a case in which the landlord served the tenant’s son with the notice  knowing that he was 16 years old.  However when the case went to court the tenant raised as a defense the fact that her son was mentally retarded and only functioned at a third grade level and forgot to give her the notice.  Rather right or wrong, the eviction lawsuit was dismissed for improper service.

Under the second option for substituted service, the landlord must leave a copy of the notice with a person “apparently in charge of the premises, or occupying the premises” and also mail the notice.  I have seen many landlords forget to mail the notice under this option and as a result the service was declared improper and the eviction lawsuit dismissed.  I have also heard of a situation in which the landlord served the notice on a gentleman (who was not a tenant but based on only being clothed in only boxer shorts he certainly appeared to be “apparently in charge or occupying the premises.”), only to find out at the intial appearance in court that the gentleman  was someone that the tenant “picked up” at a bar the night before and failede to notify the tenant that he was given the notice but rather threw it in the garbage.  I know, I know, you are saying regardless of the “one night stand” throwing th enotice away, it still was a proper service as the landlord mailed the notice to the tenant as well, which he did.  I would agree with you 100% but I was told that was not what the court commissioner concluded.  Instead the court commissioner stated that becasue of the fact that the ”one night stand” threw the notice in the garbage, the tenant didn’t have proper notice of her ability to cure the breach by paying the past due rent to the landlord within 5 days, and as such the notice was improper.

Do you still think that serving a notice on a tenant is easy?

3.     Post and Mail:  As mentioned previously, if after using “reasonable diligence” and trying to serve the tenant by the above methods you are unable to personally serve or serve the tenant by substituted service, then — and only then – are you able to “post and mail.”  To “post” means to place a copy of the notice in a conspicuous location on the property.  Oftentimes this is performed by tacking the notice to the tenant’s door or sliding the notice under the door.  The landlord must also mail the notice to the tenant.  Problems arise if the lanldord fails to mail the notice or does not mail the notice on the same day as s/he posts the notice.  If the landlord mails the notice the day after the posting then the date of service will be on the date that it was mailed – not the date that it was posted. 

Sec. 704.19(7)(b) of the Wisconsin Statutes states that when “posting and mailing” or “leaving a copy of the notice with a person apparently in charge of  or occupying the premises,” the notice is deemed to have been given on the day of service OR the date of mailing – whichever is later.  I have seen numerous cases where the landlord failed to mail the notice on the same day that it was posted and therefore it was determined that the eviction lawsuit was prematurely filed.

4.     Certified or Registered Mail:  Personally, I feel this is the best way to serve a tenant a 5-Day notice.  You are not required to attempt to personally serve a tenant with the notice before serving via certified or registered mail so you can disregard “reasonable diligence.”  Nor must you attempt to obtain substituted service on the tenant before you can choose to serve via certified/registered mail.  Certified and registered mail also does NOT need to be picked up by the tenant in order for the service to be proper.  The law merely requires that the notice be mailed via certified or registered mail for it so be legally served.  By using certified or regular mail you also eliminate any possible confrontation with the tenant.  You eliminate the need to attempt to personally serve the tenant 3 different times on 3 different days at 3 different times of day.  You also eliminate all of the potential pitfalls with substituted service.

Serving a notice on a tenant via certified/registered mail is not without complications however.  When serving a tenant with a notice via certified/registered mail you must remember to add an additional 2 days for mailing on top of the notice period per section 704.19(7)(c), Wis. Stats.  So, in effect the 5-Day notice becomes a 7-day notice.  This means that the landord must insure that he does not file the eviction lawsuit (assuming the tenant does not cure the breach by paying the past due rent within the cure period) until at leasr 7 days after mailing the notice via certified or registered mail.  Another negative of certified or regestered mail is the cost.  If you own or manage many properties and send out a lot of 5-Day notices each month then the cost of certified/registered mail may be prohibitive.

Please be aware that if you own or manage subsidized housing that there are special service requirements for the 5-Day notice that may apply depending on the type of subsidy that is involved.

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