Posts Tagged City of Milwaukee’s Mandatory Rental Unit Inspection Program

Update On Landlords’ Lawsuit Against City of Milwaukee and Its Rental Inspection Ordinance

There has not been a lot of media reporting on the lawsuit brought by three landlords against the City of Milwaukee and its rental inspection ordinance so I thought I would take the time to update you on its status.

If you are unfamiliar with the basics of the lawsuit you should refer to my earlier post on the topic.

The City of Milwaukee has filed a Motion To Dismiss the Landlords’ lawsuit.  Essentially the City is arguing that the lawsuit against it should be dimissed because the City was not provided the proper notice of the landlords’ claims prior to the lawsuit being filed.  In Wisconsin, if a person wants to sue a government entity – which would include the City of Milwaukee — the law states that prior to the lawsuit, the government entity must be served with a Notice of Claim.  The City then has 120 days to review that Notice and either attempt to settle the claim or deny the claim.  If the City does not deny the claim within the 120 days it will be deemed denied anyway.  After the 120 days have passed, a person then has 6 months in which to file the lawsuit.  If more than 6 months passes then the person would be precluded from filing the lawsuit.

The reasoning behind what is called the “Notice of Claim” statute (Sec. 893.80, Wis. Stats.) is allegedly to allow the government an opportunity to settle a claim in order to avoid expensive litigation.  A secondary reason for the requirement is to provide the government with enough information so that it can budget accordingly for settlement or litigation.

As a quick aside: I have sued a government entity on behalf of a client in the past so I am familiar with the Notice of Cliam statute.  In my opinion the government does very little during the 120 days after it is served notice.  The typical reaction is to ignore the claim and not even take the time to deny it but rather to allow the 120 days to pass after which the claim will be automatically denied. In fact, I would even go so far as to say that based on my experience that the government typically ignores the Notice of Claim that is served upon it just to see if the aggrieved person will actually file a lawsuit.  It costs very little to file a Notice of Claim (which often is done without the assistance of an attorney) but it is expensive to file a lawsuit.  The government has little to no interest to pay money to someone unless it knows the individual who filed the claim is serious.  Essentially the Notice of Claim statute is a “legal hoop” that the government makes you jump through to see how high you will jump.  There may little to no reason for you to jump, but nontheless, jump you must.

So the City of Milwaukee is arguing that the plaintiff landlords’ didn’t file the Notice prior to filing the lawsuit and therefore their lawsuit should be dismissed.

In its response brief, the plaintiffs argue that a formal notice of claim need not always be served as there are exceptions to this requirement.  The plaintiff landlords rely on a recent Court of Appeals decision, Kuehne v. Burdette, which held that the Notice of Claim statute does not always require a formal notice of claim to be served nor is it always required for a plaintiff to wait 120 days before filing a lawsuit against the government. 

The plaintiff landlords make three key arguements in their brief in opposition to the City’s motion to dismiss:

1.     Because the City’s Rental Inspection Ordinance became law on January 1, 2010 — just 22 days after it was passed by the Common Council —  and because the nature of the lawsuit is to determine whether or not the ordinance is constitutional, the plaintiffs were unable to comply with the notice of claim statute.

2.     The City had actual notice of the claim even if a formal notice of claim was not served on it.

3.     The City sufferred no prejudice as a result of the plaintiffs filing the lawsuit without first filing a formal notice of claim.

The plaintiffs’ first argument is very similar to the one made in the Kuehne case.  In Kuehne, five residents of a town filed an injunction against the Town of Ledgeview in order to prevent it from holding a referendum on whether or not the town should incorporate.  The court in Kuehne stated that the notice of claim statute probably did not apply in the context of the lawsuit because it is illogical that a town can use lack of notice as a defense when the Town by its own actions made compliance with the notice of claim statute impossible. 

The plaintiff landlords argue that the exact same situation in Kuehne is at play in the lawsuit against the City of Milwaukee.  The City adopted the new ordinance and Mayor Barrett signed it into law 22 days later.  If the plaintiffs had been required to file a notice of claim the City would have been under no legal obligation to respond to the notice until approximately May 1, 2010.  By that time the rental inspection ordinance would have been in effect for a minimum of 4 months without a court being allowed to examine the constitutionality of the ordinance.  The City can’t use the notice of claim defense in order to allow it to move forward with its unconstitutional ordinance.

The plaintiffs’ second argument is that they City had actual notice of the claim because the plaintiffs, through the actions of the AASEW, advised the City of its concerns and objections to the proposed ordinance as eary as October 29, 2009.  On October 29th yours truly sent a letter to the Common Council pointing out the various constitutional problems with the ordinance.  Additionally, the AASEW’s attorney (who is also the attorneyfor the plaintiff landlords) also sent a letter to the City Attorney on the same date setting forth the myriad of problems with the proposed ordinance.  Additionally there were numerous communications between the AASEW, its attorneys, and the alderman that sponsored the ordinance (Nic Kovac) and the DNS Commisioner.  So the City had actual notice of the plaintiffs’ claims approximately two months prior to the filing of the lawsuit.  By contrast, in the Kuehne case the plaintiff gave notice to the Town on the same day as the lawsuit was filed and the Court of Appeals found that notice to have been sufficient.

Finally, the plaintiffs argue that the City was not prejudiced by the lack of a formal notice of claim.  If the purpose of the notice requirement is to allow a government entity time to potentially resolve a claim, the fact that the AASEW 9of which the plaintiffs are members) notified the City of the problems with the ordinance and even met to discuss the potential problems, demonstrates that the City had the opportunity to resolve the issue if it wanted to.  In essence the City is arguing that the plaintiff should be required to jump through the legal hoop for the sake of jumping rather than because the jumping serves an actual purpose.

The City was allowed the opportunity to have the last word so it did file a reply brief to the plaintiffs’ brief in oppostion to the motion to dismiss.

I would point out that even if the City should prevail on its motion to dismiss, all that this will do is cause delay.  A notice of claim has already been filed and served on the City (just in case) and another lawsuit will be filed if needed.  So essentially the City’s motion, if successful, will just delay things rather then address the underlying issue –  whether or not the rental inspection ordinance is constitutional as written.

A hearing on the City’s motion to dismiss is scheduled to be heard before Judge Timothy Witkowiak on May 21, 2010 at 9:30 am in room 412 of the Milwaukee County Courthouse.  The hearing, as most legal proceedings are, is open to the public.  For those of you unable to attend, I will provide you with an update hopefully during the week of June 1st after I have returned from my upcoming wedding and honeymoon.

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CITY OF MILWAUKEE’S REVISED RENTAL CERTIFICATE PROGRAM ORDINANCE RELEASED

As I mentioned in a prior post, the City of Milwaukee’s Common Council agreed to hold off on voting on the city’s proposed mandatory rental inspection ordinance (Residential Rental Certificate Program) for 1 month.  The reason for the postponement was to allow the drafters of the proposed ordinance time to go back and make some revisions and clarifications.

The Apartment Association of Southeastern Wisconsin, Inc.  (AASEW) retained the services of a law firm who met with the drafters and sponsors of the proposed ordinance and offerred suggested changes.  During that 2 hour meeting the AASEW attorneys also pointed out the myriad of legal problems with the proposed program and how it was drafted.   It appears as if the revised ordinance was completed this past Friday, however I first received a copy of the ordinance today, only after our attorneys called one of the sponsors to check on the status.

You can read the proposed ordinance with its revisions here.

While the city appears to have included some of our suggested changes for the most part they ignored our comments.

One concern that the AASEW has that was ignored was the fact that the ordinance still does not contain an objective definition of a “disqualifying violation.”  The AASEW has been told that a rental certificate will only be withheld if the current conditions in the unit are so bad that there are safety concerns for the tenant.  To me that would mean such things as an improperly secured porch, a bedroom in the attic, or something similar.  Our attorneys were even presented with a list of such qualifying conditions at the meeting after they pressed this issue.  However, those listed conditions still have not been included in the definition of a “disqualifying violation.”   Why not?

The ordinance as written reads as follows   – A disqualifying violation “means . . . or other conditions that violates the provision of the building code . . . ”  So in essence, a rental unit could be denied a rental certificate for any building code violation — such as not having the address number posted on the garage in the alley.  This does not seem to me to qualify as safety issue that would warrant the denial of a certificate.  Nontheless, the city could argue that the lack of an address number on the garage of a rental unit is a safety issue becasue if there is a fire or similar hazard the paramedics or fire department’s response might be delayed if they drive  through the alley and can’t determine which property to go to.  Maybe that is a safety issues – I don’t know – but my point is why don’t we put all of the cards on the table so that everyone is clear.  Do I think it is the city’s intent to deny a certificate for something like missing address numbers in the alley?  I certainly hope not — but I don’t know, nor do you, nor does the inspector that is going to inspect the unit.  What I do know  however is that as the ordinance is currently written a landlord could be denied a rental certificate becasue of missing address numbers on a garage. 

I don’t want this ordinance to become a tool for an inspector who wants to make life miserable for a landlord that he doesn’t particular care for.  If the city truly only means to withold a rental certifcate in certain situations which place the tenant safety at issue then why don’t we specifically include what those conditions are so that everyone — including the inspectors themselves — have clear direction.

This proposed program is to be voted on by the Common Council on Tuesday, December 1st.  Have you told your alderperson how you should think they should vote.  If not, please do.

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UPDATE ON MILWAUKEE’S PROPOSED MANDATORY RENTAL UNIT INSPECTION PROGRAM

A friend of mine was at a meeting this morning with the City of Milwaukee’s Budget Director and learned some more information on the City’s proposed mandatory rental unit inspection program.

First, the proposed ordinance is in the final stages of drafting and will be released in the near future.

Second, it will be a 5 year pilot program in the UWM area only.

Third, there will be a fee of $40 per landlord and a $35 per unit inspection fee.

Fourth, the pilot program must be approved by the city’s common council each and every year in order for it to continue.

Fifth, if a rental unit passes its 1st inspection then the unit will receive a 4 year compliance certificate and will not need to be reinspected until the 4 years expires.

NOTE:  MUCH OF THIS INFORMATION IN THIS POST IS NO LONGER ACCURATE – TO FIND OUT WHAT THE ACTUAL ORDINANCE STATES GO TO MY NEW POST ON THE SUBJECT.

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