Posts Tagged City of Milwaukee

FREE Seminar on Evictions – Saturday, August 14th

Aug 4

Posted by Tristan R. Pettit, Esq. in AASEW, City of Milwaukee, Seminars | 2 Comments

I will be presenting a free seminar on the topic of evictions for the City of Milwaukee’s Landlord Training Program on Saturday, August 14th.  I am presenting this seminar on behalf of the Apartment Association of Southeastern Wisconsin (AASEW). 

The Seminar will run from 9 am – 12 noon and will be held at Alverno College’s Wehr Theater which is located at 3441 S. 39th Street.  I was informed that there is a parking lot located at 40th & Morgan for attendees to use.

I will cover three topics:

1.   Causes for Evictions – I will explain the different types of notices that can be served on a tenant and explain under what circumstances you should use the different notices)

2.   Notices Terminating Tenancy - I will explain what must be included in a proper notice and how to properly serve a notice), and

3.   The Judicial Eviction Process  – I will cover the “nuts and bolts” of what you must do to file an eviction lawsuit and what to expect once you arrive in court).

The attendees will receive copies of my detailed outlines on the above topics plus examples of various forms.

If you are interested in attending the seminar you must register in advance by calling (414) 286-2954 or email jhagne@milwaukee.gov.

Hope to see you there!

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CITY’S MOTION TO DISMISS LANDLORDS’ LAWSUIT DENIED BY THE COURT – LAWSUIT CONTINUES

Jun 4

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Mandatory Rental Inspections / Landlord Licensing | 4 Comments

On May 21, 2010, Judge Timothy Wotkowiak, denied the City of Milwaukee’s motion to dismiss the lawsuit filed by three Milwaukee landlords who sued the city as a result of its newly enacted ordinance requiring mandatory rental inspections of rental housing in two areas of the city.

For background information on the ordinance that went into effect on January 1, 2010, please read my November 24, 2009 post.  For background information on the lawsuit that was filed against the city you can refer to my December 31, 2009 post.  And for information about the city’s motion to dismiss and arguments both for and against the motion I would direct you to my May 4, 2010 post.

As stated in my earlier post, the plaintiff landlords made three key arguments as to why it was not necessary for them to serve the city with a formal Notice of Claim prior to initiating the lawsuit.  Judge Witkowiak agreed with the arguments offerred by the landlords on all three issues.

Issue #1: 

The court indicated that it was not practical to require the landlords to serve the city with a formal Notice of Claim — which would have allowed the city 120 to respond — in part because of the basis of the lawsuit.  The landlords’ lawsuit included the filing of a temporary restraining order to stop an immediate harm (the carrying out of the ordinance) and to make the plaintiffs wait for 120 days before they could even file suit would not be practical or just as the city would have been able to implement what is argued to be an unconstitutional program for at least 120 days before a court could review the issues and concerns with the ordinance.

Issue #2:

The court found that the city did have actual notice of the claim even though a formal notice was not served upon it.  Judge Witkowiak spent considerable time pointing out all of various contacts made by landlords, the Apartment Association of SE Wisconsin (AASEW) , and others which provided the city with actual notice of the concerns with the ordinance.  The court made reference to the letter that the AASEW’s lawyers (who also happen to represent the three plaintiff landlords)sent to City Attorney Grant Langley outlining the many problems with the proposed ordinance.  The court also referred to the letter that I wrote as President of the AASEW to Common Council President Willie Hines and the city’s other alderman, expressing the association’s many concerns with the ordinance.  The aformentioned letters, along with a DVD of the public hearing held before the ZND committee of the Commom Council, were all attached to the plaintiff landlords’ brief in opposition to the city’s motion to dismiss, and appeared to carry great weight with the Court.

Issue #3:

Judge Witkowiak also stated that the city sufferred no prejudice by not having been served with a formal Notice of Claim by the plaintiffs.  The city appeared to argue that it was prejudiced because it had to prepare its legal defense to the lawsuit and that somehow that was to be considered sufficient prejudice to grant the city’s motion.  I have heard a lot of “out there” arguments during my 15 years of law practice, but that was a new one, for me.  The court properly determined that that was not the type of “prejudice” that the city needed to demonstrate in order to prevail on its motion.

As such a result of this decision, the plaintiff landlords’ lawsuit will now move forward and address the actual problems with the ordinance.

A Scheduling Conference has been set for June 15, 2010.  On this date, the court will provide deadlines for the parties to complete various matters that will assist in moving the case forward, such as deadlines to complete discovery (the fact gathering process), deadlines to file dispositive motions (motions that could end the case without the need for a fact-finding trial), and other matters.

Based on the comments of the attorney’s for both the city and the plaintiff landlords it appears that both sides may very well be contemplating the filing of a dispositive motion — such as a summary judgment motion — which would allow the court to decide the lawsuit as a matter of law, without the need for a fact finding trial, because there are no material facts that are in dispute.

I will keep you up to date on the status of the lawsuit as I learn more.

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Milwaukee’s New Vacant Building Registration Ordinance Is Here

Jan 28

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, DNS, Legislation | 3 Comments

I need to apologize.  I have spent much of my time these last several months following and providing information about the city of Milwaukee’s new Residential Rental Inspection ordinance and as such I have inadvertantly failed to let everyone know about another of Milwaukee’s new ordinances that will affect rental property owners. 

I was talking with a client of mine last week prior to the 1:30 pm eviction return calandar in small claims court and he mentioned that the city recently served him with notice that he is in violation of the city’s new Vacant Building Registration ordinance.  He was told that his rental property was vacant and that he didn’t register the property with the city as required and that he must now open his property up for an interior inspection by the Department of Neighborhood Services (DNS).  Interesting twist is that my client’s rental property is not vacant nor has it ever been vacant.  The unit is occupied by a tenant under a valid written rental agreement.

On January 1, 2010, Milwaukee’s new Vacant Building Registration ordinance went into effect.  Essentially the ordinance states that the owner of any building that is vacant for more than 30 days must register the property with DNS and submit to a mandatory – warrantless – interior inspection of the rental property.  The ordinance also requires the owner to secure the building, maintanin the lot, exterior of the property, and interior of the property during the time that it is vacant.

Upon first glance this seems like a reasonable ordinance.  A valiant attempt by the city to insure that vacant buildings do not become dilapidated and attract criminal activity, injure individuals, or further depress Milwaukee’s neighborhoods.  I have no problem with that.  Upon closer review of the ordinance however you will note the many requirements – similar to the city’s Residential Rental Certificate ordinance — that are open to multiple interpretations and therfore open to abuse, which in the end, can and most likely will, be used to the detriment of rental property owners.

I will not attempt to explain or detail the entire Vacant Building Registration ordinance as it is over 6 pages long.  I would like to touch on some key parts of the ordinance and note some concerns. 

This new ordinance applies to all residential and commercial properties that have been vacant for more than 30 days.  There are some exceptions.  It does not apply to single family homes or owner-occupied duplexes (as long as the owner has resided in the duplex at least 3 of the last 9 months and the owner intends to continue living in the duplex).  Also excluded from the ordinance are condominiums and  rental units as long as their vacancy rate does not exceed 95%.  Also excluded is property that is currently in the foreclosure process and property that is actively being renovated.

This ordinance will apply to your rental whether or not you are actively showing the property to prospective renters and regardless of the condition of the property.  So within 30 days of the property becoming vacant you must fill out a city application and file it with DNS.  Additionally you must allow DNS to conduct an interior inspection.  If the city finds any violations you will be cited.

Your intial application will be good for a period of 6 months and will cost you nothing (assuming the city does not cite you for any violations).  If your property remains vacant for more than 6 months then you must reapply and pay a $250 fee.  If DNS determines, at the time of renewal, that your property is not compliant then the fee will increase to $500.  If your property continues to be in violation at the time of any subsequent renewals then you may be charged a fee (in increasing increments of $250) up to a maximum of $1,000.  If you don’t pay the fees they will be assessed against the real estate as a “special charge.”

During the inspection, DNS will see if your property meets their minimum requirements.  You can read a summary of those requirements at DNS’ webpage dedicated to this new program.

Just as with the Residential Rental Certificate ordianance, DNS has the unfettered ability to draft and apply rules and regulations which are not required to be incorporated into the ordinance.  These rules and regulations can change at any time and do not have to be published.

Let me just provide you with two situations that clearly fall under the purview of this new ordinance but which I feel should not require any city involvement whatsoever. By no means are these the only two problematice examples that I foresee — there are many.

First, assume that you own a duplex and you currently have a tenant in the lower unit but because the upper tenant just broke the lease you upper unit is empty.  The upper unit is in pretty good shape but requires repainting and some minor repairs to get the unit into move-in condition for the next tenant.  Also assume that you were just assigned a new project at work that is taking up most of your time – you are working late and on weekends.  While you would like to repaint the unit, make the minor repairs, start advertising the vacancy, and showing it to prospective renters, you just do not have the time.  You remain very busy at work for more than 30 days.  Under the new ordinance you now have a “vacant building” and you must register the property and allow it to be inspected.

My second example has actually happened to me on several occassions.  I was in the process of trying to locate a new tenant for the lower portion of my duplex.  Just as the city suggests, I have written screening criteria which any applicant must meet in order to become my tenant.  My screening criteria is quite stringent.  I follow the adage that it is better to have a vacant unit then to accept any “warm body” as a tenant.  Because I also work a full-time job, I am not free to show the property to interested renters every day.  As a result of both my stringent criteria and my schedule, my lower duplex remains vacant for over 30 days.  Under Milwaukee’s new ordinance I would need to register my duplex with the city and take time out of my day to allow an inspector to inspect my property.

NOTE:  I have spoken with DNS Commissioner Art Dahlberg and confirmed that my above examples (which I have crossed out) are inaccurate.  If you have a duplex and only 1 unit is vacant then you do not fall under the purview of the new ordinance.  You would only fall under the purview of the new ordinance if both units of the duplex were vacant for 30 days — as you would now have more than a 95% vacant property.  So I have had to revise my examples.

First, assume that you own a single family home that you operate as a rental property and your tenant just broke his/her lease and as such the property is now vacant.   The property will need a little bit of work (minor repairs and some painting) before you can turn it over.  Also assume that you were just assigned a new project at work that is taking up most of your time – you are working late and on weekends.  While you would like to repaint the unit, make the minor repairs, start advertising the vacancy, and showing it to prospective renters, you just do not have the time.  You remain very busy at work for more than 30 days.  Under the new ordinance you now have a “vacant building” and you must register the property and allow it to be inspected.

My second example happens to many of my clients that have stringent screening criteria that applicants must meet before they can become tenants.  They are in the process of renting out a single family rental unit or both units of a duplex.  Just as the city reccomends they use a written screening criteria which any applicant must meet in order to become a tenant.  Following the adage that I often teach at my seminars, that it is better to have a vacant unit then to accept any “warm body” as a tenant, my clients often have periods in which their rental units are vacant.  Sometimes becasue my clients work a full-time job outside of being a landlord, they not free to show the property to interested renters every day.  As a result of both their stringent screening criteria and their busy schedules, their single famuly rental or both units of their duplex remain vacant for over 30 days.  Under Milwaukee’s new ordinance they would need to register their rentals with the city and take time out of my day to allow an inspector to inspect their property.

I suppose things could be worse.  You could be standing in my client’s shoes – the guy I mentioned earlier — and have just been served with a notice from the city that you are in violation of its Vacant Building Recording ordinance.  My client is now placed in the difficult position of having to decide whether to ignore the city’s notice and risk the possibility of a fine and the future wrath of DNS or capitulating to the city and allowing it to inspect his unit despite the fact that it is occupied by a tenant and the city has no legal right to set foot in his rental property.  What would you do?

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City of Milwaukee Releases Its 2010 Schedule of Special Sessions for The Landlord Training Program

Jan 10

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Seminars | 1 Comment

The City of Milwaukee has just released its 2010 Schedule of Special Sessions for The Landlord Training Program.  The focus of these 5 special seminars will be on learning how to effectively and professionally manage your rental properties.  All of the sessions will take place on Saturday mornings to allow those of you who work an additional job (aside from being a landlord) to attend.

I am very honored to have been asked, as president of the Apartment Association of SE Wisconsin, to present one of these special sessions on Saturday, August 14, 2010.  The topic that I will be addressing is the Judicial Eviction Process.  The seminar will run from 9 am – 12 pm at Alverno College’s Wehr Theater which is located at 3441 S. 39th Street.

Other special sessions in the 2010 program include:

February 6, 2010:     (1) The District Attorney’s new diversion program for tenant’s who “bounce” their rent checks  - presented by A.D.A. Ron Dague, and  (2) The EPA’s new renovation rules regarding lead-based paint which will become effective later this year – taught by Ada Duffey of Milwaukee Lead/Asbestos Information Center, Inc.

April 24, 2010:     Screening Tenants and how using a good tenant screening company can assist you during the very important screening process - presented by Kathy Huens of Landlord Services, LLC

June 12, 2010:     Fair Housing Practices – Know Your Local, State and Federal Laws – presented by Margaret Bowitz of the Milwaukee Metro Fair Housing Council

October 2, 2010:    Fire and Building Codes – presented by Deputy Fire Chief Michael Payne and Department of Neighborhood Services Commissioner Art Dahlberg

All sessions are free of charge but ADVANCED REGISTRATION IS REQUIRED.  To register call (414) 286-2934 or email jhagne@milwaukee.gov

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DNS Has Started To Implement The New Residential Rental Certificate Program

Jan 8

Posted by Tristan R. Pettit, Esq. in DNS, Legislation, Mandatory Rental Inspections / Landlord Licensing | No Comments

As many of you know the City of Milwaukee’s new Residential Rental Certificate Program ordinance went into effect January 1, 2010. 

It is my understanding that the letter notices, along with a date for the inspection of your rental unit/s, the application, were all mailed out to affected landlords during the week of Dec. 28th — so those of you in the two designated areas should have received your mailing by now – Merry Christmas.

In anticipation of the many questions about the Residential Rental Inspection (RRI) Program the Department of Neighborhood Services (DNS) has added a new FAQ page to its website regarding the program.  The web page also contains a link to a map of the two affected areas, a link to the RRI Application form and a link to the Pre-Inspection Checklist.

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Landlords Sue City of Milwaukee To Stop Residential Rental Certificate Ordinance

Dec 31

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Legislation, Mandatory Rental Inspections / Landlord Licensing | 1 Comment

On December 29, 2009, three landlords filed a lawsuit against the city of Milwaukee in an attempt to stop the new Residential Rental Certificate Ordinance that was recently passed. 

The lawsuit includes a complaint, motion for temporary injunction, ex parte motion for temporary restraining order (TRO) and supporting affidavits.  Essentially, the plaintiffs are arguing that the ordinance as written is (1) unconstitutionally vague, (2) contains fatal defects, (3) fails to provide for an impartial review and (4)interferes with their constitutional right to contract with their tenants.

I would suggest that you read the entire lawsuit but I will attempt to summarize the plaintiffs’ main arguments.

1.    1st claim: The ordinance is unconstitutionally vague

The plaintiffs’ argue that the ordinance contains terms and phrases that are so vague that they do not properly notify landlords owning rental properties in the two designated areas as to what specific conditions will result in a denial of a residential rental certificate or the revocation of a certificate.  The ordinance gives the DNS Commissioner and his inspectors the subjective power to determine whether the conditions in a rental unit constitute a denial or revocation of the certificate.  This subjective power will result in a non-uniform application of the ordinance.

The plaintiffs cite 7 examples within the ordinance where the landlord does not have sufficient notice as to what specific conditions or number of conditions will trigger a denial or revocation of a rental certificate by the city.

2.     2nd claim:  The ordinance contains fatal defects

Basically this argument states that the ordinance as written contains terms which are unclear, have no definition, and fail to set forth clear standards for which a rental certificate will be granted.  Additionally it is argued that the ordinance gives the DNS Commissioner and his inspectors the arbitrary power to grant, deny or revoke a rental certificate without providing specific standards as to how that discretion should be used.

The plaintiffs provide 9 examples within the ordinance where significant terms are not defined or are unclear.  Essentially their argument is that the standard as to what will casue the issuance of a rental certificate is a subjective standard contained only in the minds of the Commissioner and his inspectors (and essentailly that the subjective standard will most likely vary from one inspector to the next).  This argument also focuses on the fact that the ordinance allows for the DNS Commissioenr to draft rules or regulations  which have not been made a part of the ordinance.  This means that the Commissioner could change the rules at any time and without providing owners prior notice of the changes.  The rules and regulations are not required to be made publicly available since they are not contained in the ordinance itself.

3.     3rd claim:  Failure to provide impartial review

Under the ordinance as written if a landlord does not agree with the decision rendered by the city inspector, the landlord can appeal that decision to the Commissioner of DNS — the employer of the inspector that made the intial decision.  The plaintiffs argue that as written the ordinance allows the individual and agency that made the unwritten rules for inspection and then subjectively applied those rules, to also act as the decision-maker for the review of any contested determination.  Wisconsin Statutes Sec. 68.11(2) require that all municipalities provide an “imparital decision-maker . . . who did not participate in making or reviewing the initial determination” to preside over any review.

4.     4th claim: Interference with the constitutional right to contract

According to the ordinance, all rental units within the two designated areas will be required to have a rental certificate in place (if there is a tenant residing in the unit) as of January 1st, 2010 — Friday.  If no certificate is in place by 1/1/10 then the owner of the rental will be in violation of the ordinance as written.  The argument made by the plaintiffs is that since the ordinance does not provide for the rental certificates to be issued until after an inspection takes place (which will be at least 30 days after 1/1/10) that landlords will be forced to terminate the tenancies of their tenants or else be in violation of the ordinance.  By being forced to issue a termination notice to their tenants, the plaintiffs argue that the city isinterfering with the landlords and tenants rental agreement – and by doing so they are interfering with a landlords right to enter into a contract with his/her tenant.

The plaintiffs are asking that the court to temporarily enjoin the city from enforcing the residentail rental certificate ordinance.  They are also asking the court to issue an order declaring that the ordinance is invalid.  Finally the plaintiffs are asking the court to permanatly enjoin the city from enforcing the ordinance.

This lawsuit has been tabbed to Judge Timothy Witkowiak.

A hearing on the plaintiff’s motion for a temporary restraining order was held earlier today before Judge Timothy Dugan.  Judge Dugan denied the landlords’ motion for a TRO without reaching the underlying problems with the ordinance.  One of the requirements in order to be granted a TRO is that some “irreperable harm” must be demonstrated.  Judge Dugan felt that becasue no landlord has been issued a citation by the city and because the city has not tried to remove any tenant from the plaintiff’s’ rental units, as of yet, that the plaintiffs failed to demonstrate any irreperable harm.”

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Mayor Signs Milwaukee’s Residential Rental Certificate Program Ordinance

Dec 11

Posted by Tristan R. Pettit, Esq. in City of Milwaukee, Legislation, Mandatory Rental Inspections / Landlord Licensing | No Comments

About 1 hour before the close of business yesterday, December 10, 2009, Mayor Tom Barrett signed the city of Milwaukee’s Residential Rental Certificate Program ordinance into law.  Mayor Barrett left everyone waiting and wondering if he would sign it as the deadline to do so was the close of business yesterday.

The ordinance can be read in its entirety here.

The Preinspection Checklist can be found here.  The checklist gives a detailed overview of all items that DNS will be inspecting when they come knocking in 2010.  The landlords in the two designated areas will probably get pretty familiar with that checklist during the next 5 years of the “pilot program.”

The ordinance will go into effect as of January 1, 2010.

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