Posts Tagged Evictions

Act 76 – Wisconsin’s New Landlord Tenant Law – Part 6: Alternative Disposition of Property During Eviction

Act 76, has amended sec. 799.45 Wis. Stats., and created new options for a landlord to dispose of a tenant’s abandoned personal property after the writ has been executed by the Sheriff and the rental unit has been returned to the landlord’s possession.

Under the old law, if the rental property was located in a county with a population greater than 500,000 people, a landlord was required to hire a moving company to remove any of the tenant’s property that was determined to be of value.  Under the old law, if the rental property was located in a county of less than 500,00 people, a landlord could remove the tenant’s abandoned property of value himself but was required to post a bond before doing so, which could be very expensive.

With the passage of Wisconsin’s new Landlord-Tenant law, Act 76, a landlord can now remove any of the tenant’s abandoned property himself, regardless of the size of the county in which the rental property is located, once the Sheriff has executed the writ and the rental property has been returned to the possession of the landlord, and assuming the landlord has complied with the other requirements of sec. 705.05(5), Wis. Stats.

Many landlords — as well as the press reporting on the new law – misunderstood the new law and believed that a landlord was no longer required to involve the Sheriff in the eviction.  That is not the case.  Act 76 did not remove the requirement of involving the Sheriff.  The Sheriff must still be hired to remove a tenant that has not voluntarily surrendered the rental unit and the Sheriff is still necessary to return the rental property to the possession of the landlord. 

What Act 76 did was remove the requirement that a moving company be used in larger counties and remove the requirement that a landlord post a bond in smaller counties with regard to the removal and disposal of any belonging left by the tenant.

Under the new law a landlord now has three options to choose from when hiring the Sheriff to forcibly remove a tenant and return the rental unit to the possession of the landlord.

1.  The landlord can choose to operate under the old law  — and most of my clients are electing to do this — and still involve and pay for a moving company.  The Sheriff will then remove any tenant still on the premises and return the rental property to the landlord.  The moving company will then remove any tenant property of value left behind and take it to a storage facility.  The Sheriff will remain at the rental property until the moving company has completed its work.

2.  The landlord can choose to hire the Sheriff only.  Under this scenario, the Sheriff will remove any tenant still on the premises and return the rental property to the landlord.  The Sheriff will then leave.  The landlord can then dispose of any tenant property left behind as set forth in sec. 705.05 (5), Wis. Stats. (assuming the landlord has the required language in his rental agreement allowing him to dispose of the abandoned property  — see sec. 704.05(5)(bf)  – and abides by the exceptions to the disposal rules — see sec. 704.05(5)(am) and (b)).

3.  The landlord can opt to hire the Sheriff only but also elect to have the Sheriff stick around while the landlord disposes of the tenant’s property (assuming the landlord has the required language in his rental agreement allowing him to dispose of the abandoned property  — see sec. 704.05(5)(bf)  — and abides by the exceptions to the disposal rules — see sec. 704.05(5)(am) and (b)).  This option allows the landlord a greater sense of security as the Sheriff will still be present should the tenant decide to visit.  Please be aware however that under this option the Sheriff may have certain requirements that must be followed by the landlord, such as requiring the landlord to have a certain number of people assisting him with the removal of the tenant’s property, so that the Sheriff is not sitting around for hours waiting for a single landlord to remove and dispose of a tenant’s belongings.

Essentially those are the 3 options that a landlord now has to choose from if it becomes necessary to execute a writ of restitution with the Sheriff.  While many counties are still working out the details, the feedback that I have received from the various counties in which I practice, has been that things have been going much more smoothly then the press and tenant advocates had prophesized.

 

 

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Act 76 – Wisconsin’s New Landlord-Tenant Law – Part 4: Who May File An Eviction and Who May Appear In Court

Act 76 which will become effective on March 1, 2014 has changed Wisconsin law with regard to who may file an eviction action and who can appear in court to prosecute an eviction.

Current law only allows the person or entity “entitled to the possession of the property” to file an eviction action.  Typically this would be the owner of the rental property.  As such, a management company or another third party cannot currently be named as the plaintiff in an eviction action — only the owner can.

In the past, the Milwaukee County Court Commissioners where monitoring this issue closely, even going so far as to look up the tax bill for the rental property online while the case was in court to insure that the named plaintiff in the eviction lawsuit was the owner named on the tax bill.  If they were not, the case would either be dismissed or adjourned to allow the owner to be substituted as the plaintiff and appear in court.

Act 76 will amend sec. 799.40(1), Wis. Stats., and as of March 1, 2014, an eviction lawsuit may be filed by either:

1.  The person entitled to possession of the property (i.e. owner),  OR

2.  An agent of the person entitiled to possession of the property as long as they are authorized to do so in writing.

So in the very near future, it will be legal for a property management company to file an eviction lawsuit on behalf of one of their clients (the owner) as long as the owner has authorized the property management company to do so in their management contract or a separate writing.

Similarily, Act 76 will also change who may appear in court to represent the named party in an eviction action.

Current law allows a person entitled to possession of the property (which can be a person, business entity, trust etc.) to appear by the person himself or herself, an attorney,  or a full-time employee.  As a result, landlords that had transferred their rental properties into a LLC (limited liability company) for liability protection were required to appear in court by an attorney unless they could prove that they were a full-time employee of the LLC (which was typically not the case).

So under current law, if an LLC was the owner of the rental property — and thus was required to be the named plaintiff — it could only appear in court through a lawyer.  A member of the LLC, even if it were a single member LLC, could not appear in court to represent the LLC.  To those of you who understand the basics of what is referred to as the  “corporate fiction” of a business entity and understand that a business entity (even a sole member LLC) is distinct and separate from the individual person, this made sense.  Nonetheless, from a practical perspective it was frustrating to many smaller landlords that had opted to move their rental real estate into a LLC that they could no longer appear in court to prosecute an eviction.

Act 76 has eliminated the requirement that the person be a full-time employee of the business entity in order to appear in court on its behalf.

As of March 1, 2014, it will be acceptable for a party in any small claims lawsuit to appear in court by himself/herself, by an attorney, by a member (as defined in sec. 183.0102(15), Wis. Stats.), by an agent, by an authorized employee of the person, or by an agent of the member or an authorized employee of the agent.

So pretty much anyone can now appear in court to represent an owner or management company on an eviction as of March 1, 2014.

It is important to remember that this law change applies to all small claims actions, not just evictions.  So this change will affect small claims collections lawsuits, replevins etc.  Additionally, the new law applies to ALL parties – not just landlords.  So a tenant will now also be able to appear in court by an agent or authorized employee.

While I am no Nostradamus, I think it is fair to say that this particular change in the law will result in bit of confusion and congestion in eviction court.  It may also result in some eviction cases being dismissed if the landlord does not have a firm grasp of landlord-tenant law and small claims procedure.   For those of you that are interested in appearing in court yourself, I would reccomend that you educate yourself accordingly.  Attending the AASEW’s Landlord Boot Camp on March 8, 2014, to insure that you know what you are doing would not be a bad idea.

And for those of you that have better things to do than waste an afternoon sitting in eviction court, you still will have the ability to hire an attorney to represet you ; )

 

 

 

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ACT 76 – Wisconsin’s New Landlord-Tenant Law – Part 3: Speeding Up the Eviction Process

Several of the provisions of Wisconsin’s New Landlord-Tenant law, Act 76 (SB 179), were created or amended to speed up the eviction process.  Evictions are supposed to be summary proceedings and per the Wisconsin Supreme Court (Scalzo v. Anderson, 87 Wis. 2d 834 (1979)) there are very limited number of issues permissible in an evictions action.  Nonetheless, tenants were finding ways to delay the process.  Hopefully Act 76 will resolve much of that delay.

First, Act 76, amends sec. 799.12, Wis. Stats. to allow circuit courts in the various counties to decide via local rule whether or not to allow service of an eviction summons via certified mail. Current law does not allow service of an eviciton by mail and requires that an eviction summons be served personally, or after reasonable diligence has been made, via substituted service or posting and mailing.

If a county allows service via mail, then the clerk shall mail a copy of the eviction summons to each defendant at their last known address.  Service of the summons will be considered completed when mailed, unless the envelope enclosing the summons has been returned unopened to the clerk prior to the court date.

I personally think that service of an eviction summons via mail will cause logistical problems.  I can tell you right now that Milwaukee and Dane counties certainly will not agree to service by mail in eviction actions but possibly it will work in smaller counties.

Second, Act 76 amends sec. 799.05(3)(b), Wis. Stats. and states that the return date (initial appearance) in court can be no less than 5 days and no more than 25 days after service is issued (i.e. the tenant is served with the eviction summons).  Current law requires the return date be held no less than 5 days and no more than 30 days after service.

It will be important that landlords make sure that their process servers are aware of this law change starting March 1, 2014 otherwise it could result in their evictions being dismissed if the return date/initial appearance is scheduled more than 25 days after service is effectuated.

Third, sec. 799.206 and sec. 799.20(4), Wis. Stats,  have been amended to require that all contested hearings in small claims actions (evictions, garnishments, replevins etc.) must be scheduled within 30 days of the return date/initial appearance.

Even more important to landlords is that all residential evictions trials on the first cause of action (i.e. return of the premises) must be held and completed within 30 days of the return date/initial appearance.  This law new law applies to both trials to the court and jury trials.

I personally feel that this change is the most important part of Act 76 in terms of speeding up the eviciton process.  While many evictions are not contested and the landlord obtains a default judgment, those that are contested can take a long time to get to trial.  Many tenants and their advocates have been requesting jury trials on eviction matters.  By doing so – at least in Milwaukee county – these cases are rotated to a large claims judge handling civil matters (as the small claims judge does not handle jury trials) and result in a lengthy delay.  In some of my contested eviction cases, it was taking 2 months to even get before the judge for a Scheduling Conference and the jury trial itself was not being scheduleded until 6 months after the return date.

While tenants are entitled to their day in court – which includes a jury trial if they wish — they should not be given a 6 month reprieve just by requesting a jury trial.  During those 6 months the landlord often is not receiving any rent payments and/or the “good” tenants in the building are stuck putting up with the actions of the breaching tenant.  In my opinion, requesting a jury trial in an eviction action is nothing more than a delay tactic.  Tenants and their advocates have been successful in buying more time and in making the eviction process more expensive for the landlord by driving up his/her costs and fees.  Of all the jury trials requested by tenants in eviction cases that I have been involved in (which number over 20 – most of which occurred this past year) not one of them actually went to trial.  So I am very happy to this new law hopefully put a stop to this abuse of the system.  Tenants will still get their trials but they can no longer stretch it out for months and months.  How the courts will assimilatate these jury trials within the 30 day time limit will be the key issue moving forward.

 

If you missed my prior posts on Wisconsin’s new landlord-tenant law you can click on the links below

Part 1 – Background and Overview

Part 2 – Restrictions on Local Ordinances

 

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SB 179 (“Landlord-Tenant Bill”) Is On It’s Way To Governor Walker To Be Signed Into Law

At about 6:40 pm on October 16, 2013, SB 179 (commonly referred to as the Landlord-Tenant Bill) was concurred by the state Senate after a minor amendment was made in the state Assembly earlier.  The bill passed 18-15 despite attempts to delay the bill via a motion to non-concur.  The bill now goes to the Governor who has 30 days to “call” for the bill and sign it.

If you would like to watch the hearing you can do so by clicking here.  The portion of the hearing dealing with SB 179 starts at approximately 2:58.

This bill which will hopefully become law — absent a veto by the Governor — will makes some major changes to Wisconsin Landlord Tenant law and the small claims eviction procedure.  It also cleans up several of the unintended consequences of Act 143, which also dealt with landlord-tenant law, which became law back on March 31, 2012.

I will be devoting a segment of the AASEW’s upcoming Landlord Boot Camp on October 26, 2013, to discussing SB 179 and its effect on the landlord-tenant landscape.  For more information on the upcoming Boot Camp, including a summary of other topics that will be covered, prior attendees’ testimonials, and how to register to attend, please go to www.LandlordBootCamp2013.com.

Assuming the Governor signs SB 179 into law, I will most likley be posting on this topic again in the near future and offerring my own analysis of the law, but for now I have reproduced for the Wisconsin Legislative Council’s October 14, 2013 memo which summarizes current law in Wisconsin and then summarizes how SB 179 will affect/change current law.

 

This memorandum describes Senate Substitute Amendment 1 to 2013 Senate Bill 179, as amended by Senate Amendments 17 and 18, relating to landlord-tenant law, small claims actions, and towing of vehicles.  In addition, this Memo describes Assembly Amendment 1 to 2013 Senate Bill 179, as passed by the Senate.  The section numbers in brackets refer to the sections of Senate Bill 179 that are described under each heading, below. 

 

RESTRICTIONS ON LOCAL ORDINANCES [Sections 1-4]

Under current law, a city, village, town, or county (municipality) is prohibited from enacting or enforcing certain ordinances relating to landlords and tenants, such as an ordinance imposing a moratorium on eviction actions or an ordinance that places certain limitations on what information a landlord may obtain and use concerning a prospective tenant.  [ss. 66.0104 and 66.1010, Stats.]

Senate Bill 179 additionally prohibits a municipality from enacting or enforcing an ordinance that does any of the following:

  • Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
  • Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
  • Requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.
  • Requires a landlord to communicate to the municipality any information concerning the landlord unless the information is required under federal or state law or is required of all residential real property owners.

Senate Substitute Amendment 1 authorizes a municipality to enact or enforce an ordinance that requires a landlord to communicate to the municipality any information concerning the landlord ifthe information is solely information that will enable a person to contact the owner or, at the option of the owner, an agent of the owner.

Senate Amendment 17 to Senate Substitute Amendment 1 authorizes a municipality to enact or create an ordinance that requires a landlord to communicate information to tenants that is not required to be communicated to tenants under federal or state law if the ordinance has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

Assembly Amendment 1 to Senate Bill 179, as passed by the Senate (i.e., as amended by Senate Substitute Amendment 1 and Senate Amendments 17 and 18) modifies the provision described above that generally prohibits a municipality from enacting or enforcing an ordinance requiring a landlord to communicate to the municipality any information concerning the landlord, unless an exception applies.  Assembly Amendment 1 provides that the general prohibition relates to communication to the municipality of any information concerning the landlord or a tenant, unless an exception applies.

 

NOTIFICATION TO A PROSPECTIVE TENANT OF BUILDING CODE OR HOUSING CODE VIOLATIONS [Section 11]

Under current law, if a landlord has actual knowledgeof any uncorrected building code or housing code violation in the dwelling unit or a common area that presents a significant threat to the prospective tenant’s health or safety, the landlord must disclose the violation to a prospective tenant before entering into a rental agreement or accepting any earnest money or security deposit.  [s. 704.07 (2) (bm), Stats.]

Under Senate Bill 179, the landlord must disclose the types of violations described above only if he or she has received written notice of the violation from a local housing code enforcement agency.

Senate Substitute Amendment 1 deletes this provision from the bill. 

 

COMMISSION OF CRIMES ON RENTAL PROPERTY [Section 18]

Under current law, if a lease contains any of a list of prohibited provisions, the lease is void and unenforceable.  Among the prohibited provisions is a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.  [s. 704.44 (9), Stats.]

Senate Bill 179 repeals the provision of current law describe above.

Senate Substitute Amendment 1 replaces the current law provision described above with a provision that states that the lease is void and unenforceable if it contains a provision that allows the landlord to terminate a tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime.  Victim is defined by reference to s. 950.02 (4), which generally provides that “victim” means a person against whom a crime has been committed, unless he or she is the person charged with or alleged to have committed the crime.

In addition, the substitute amendment requires a lease to include a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats.  The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking.  The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premises. 

The substitute amendment also provides that a lease is void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for criminal activity in relation to the property and the lease does not include the notice regarding domestic abuse protections described above. 

Senate Amendment 18 to Senate Substitute Amendment 1 modifies the language required under the notice of domestic abuse protections.  Under Senate Amendment 18, the notice provides that a tenant has a defense to an eviction action under the circumstances provided in s. 106.50 (5m) (dm), Stats., instead of providing that a tenant may be able to stop an eviction action under such circumstances.

 

TERMINATION OF TENANCY IN MOBILE OR MANUFACTURED HOME COMMUNITIES FOR THREAT OF SERIOUS HARM [No provision in Bill]

Under current law, a landlord may terminate the tenancy of a tenant if the tenant commits one or more acts, including verbal threats, that cause another tenant, or a child of that other tenant, who occupies a dwelling unit in the same single-family rental unit, multi-unit dwelling, or apartment complex as the offending tenant, to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises.  [s. 704.16 (3), Stats.]

Senate Substitute Amendment 1 authorizes a landlord to terminate the tenancy of the tenant of a mobile or manufactured home community who threatens another tenant, or child of another tenant, of the mobile or manufactured home community under the same circumstances, described above. 

 

TIMING OF RETURN OF SECURITY DEPOSIT [Section 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.  [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, if a tenant is evicted, the landlord must return the security deposit to the tenant within 21 days after the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

Senate Substitute Amendment 1 provides that the timing of the return of the security deposit depends on whether the tenant is evicted before or after the termination date of the lease.  If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins.  If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction. 

 

SERVICE OF SUMMONS IN EVICTION ACTION [Section 22]

Under current law, under most circumstances, the summons in an eviction action must be personally served upon the defendant (the tenant), unless this cannot be achieved with “reasonable diligence.”  In this case, the summons may be served by leaving a copy of the summons at the defendant’s usual place of abode in the presence of either:  (1) a competent member of the family who is at least 14 years old; or (2) a competent adult who resides in the abode of the defendant. The person serving the summons must inform the family member or other person of the contents of the summons.  [s. 801.11 (1) (b), Stats.]

Under Senate Bill 179, a court may, by rule, authorize the summons in an eviction to be served by regular mail.

Senate Substitute Amendment 1 provides that use of certified mail shall be required for all eviction cases for which service by mail is authorized by a court. 

 

TIMING OF APPEARANCE AND TRIAL IN EVICTION ACTIONS [Sections 20, 23 and 24]

Under current law, the summons in an eviction action specifies the date that the defendant must appear in court.  That appearance date must be set at not less than five days or more than 30 days after the summons is issued.  [s. 799.05 (3) (b), Stats.]  Also, the court generally sets the matter for a trial or hearing when the tenant makes the initial appearance.  Current law does not specify the required timing of the trial or hearing.  [s. 799.20 (4) and 799.206 (3), Stats.]

Senate Bill 179 changes the appearance date to not less than five days or more than 14 days after the summons is issued.  The bill also specifies that the trial or hearing must be scheduled within 20 days after the date of appearance.

Senate Substitute Amendment 1 changes the appearance date to not less than five days or more than 25 days after the summons is issued.  The substitute amendment also specifies that a trial or hearing on the issue of possession of the premises involved in the action must be held and completed within 30 days after the date of appearance, and provides that this provision applies only to residential tenancies. 

 

WHO MAY APPEAR IN SMALL CLAIMS ACTIONS [Section 21]

Under current law, in any small claims action, a person may commence and prosecute or defend an action or proceeding himself or herself, or by an attorney or a full-time authorized employee of the person.  [s. 799.06 (2), Stats.]

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent.  This provision applies to all small claims actions, not only evictions.

Senate Substitute Amendment 1 clarifies that “member”means a member as defined in s. 183.0102 (15), Stats.:

“Member” means a person who has been admitted to membership in a limited liability company as provided in s. 183.0801 and who has not dissociated from the limited liability company. 

 

DISPOSITION OF PROPERTY LEFT ON RENTAL PREMISES AFTER EVICTION [Sections 9, 10 and 29-46]

Under current law, if a tenant leaves property of value on the rental premises after he or she has been evicted, the property must be removed and stored.  The evicted tenant is notified of the location of the property and provided with the receipt needed to obtain possession of the property.  The evicted tenant is responsible for the costs of storage.  In Milwaukee County, the sheriff must remove and store the property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property.  If the landlord does not choose to remove and store the property, the sheriff must do so.  [s. 799.45 (3), Stats.]

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise.  If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement, or at any other time before the tenant is evicted from the premises.  If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Senate Substitute Amendment 1 deletes the bill provision that authorizes a landlord to provide the notice described “at any time before the tenant is evicted,” and provides that any notice that is provided must be provided either when the tenant enters into or renews the rental agreement. 

 

TOWING OF VEHICLES [Sections 5-8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued.  If the vehicle is taken by a towing service to any location other than a public highway within one mile from the location in which the vehicle was improperly parked, the municipality or the traffic or police officer must, within 24 hours, provide the towing service with the name and last-known address of the registered owner and all lienholders of record.  [s. 349.19 (3m) and (5) (c), Stats.]

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued.  “Properly posted” means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately removed.  The vehicle may be removed by a towing service at the request of the property owner or property owner’s agent, a traffic officer, or a parking enforcer.  A parking enforcer is a person who enforces nonmoving traffic violations and who is employed by a municipality, a county, or the state.  Also, the bill requires the Department of Transportation (DOT) to promulgate rules establishing reasonable charges for removal and storage of vehicles under the provisions described above.

Under Senate Substitute Amendment 1, if a property owner has a vehicle towed under the provisions described above, the towing service must notify a local law enforcement agency of the make, model, and license plate of the vehicle and the location to which the vehicle will be towed.  The law enforcement agency is required to maintain a record of the notice as well as the identification of the towing service.  Also, the substitute amendment prohibits a towing service from removing a vehicle that has been reported to a law enforcement agency as stolen.  

In addition, under the substitute amendment, if requested by the municipality in which the vehicle was illegally parked, the towing service must charge the vehicle owner a service fee not to exceed $35.  The towing service must then remit the service fee to the municipality according to procedures specified in the statute. 

The substitute amendment provides that the rules promulgated by DOT must establish the form, and manner of display, of the notice necessary to qualify as “properly posted” under the provisions described above, as well as guidelines for towing services to notify law enforcement of the removal of a vehicle. 

 

 

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Next AASEW Meeting – The Ins & Outs of Evicting – March 18th

The next AASEW meeting will focus on theThe Ins & Outs of Evicting.”

The meeting will be held on Monday, March 18th, 2013 at 7:00 p.m. at the Best Western Hotel located at 1005 S. Moorland Road in Brookfield.

The speakers will be Attorney Tristan Pettit of Petrie & Stocking S.C. and Detective Jon Nilsen of the Milwaukee County Eviction Squad.

Atty. Pettit will discuss the top reasons that the courts dismiss landlord’s evictions and Det. Nilson will speak to us about how the execution of a writ of restitution works and what the Sheriff’s Department does to remove tenants that refuse to leave our rental properties after being ordered by the court to vacate.  Det. Nilsen will also tell us what we can do as landlords to provide the Sheriff’s Department with the necessary and vital information that they need in order to safely complete the eviction process.

Attorney Tristan Pettit focuses his practice on representing landlords and property management companies throughout SE Wisconsin.  Atty. Pettit is the presenter of the AASEW’s popular Landlord Boot Camp and also drafts the landlord-tenant forms that are sold by Wisconsin Legal Blank and used throughout the state.  Tristan is in eviction court in Milwaukee County every week representing many members of the Association and other landlords and property managers.

Detective Nilsen has been with the Milwaukee County Sheriff’s Department for 29 years and a Detective since 1995.  He has served in various capacities within the Sheriff’s Department including being a member of SWAT team for 14 years, the mounted unit, working as a bailiff in the courts, and patrolling the freeways. Since 1995 Detective Nilsen has worked with the eviction squad.

This meeting is free for current AASEW members and $25 for everyone else.

Hope that you all can make it.

 

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Accepting Past Due Rent After Termination of Tenancy: The New Law and Traps To Avoid

The Landlord’s Omnibus Law (Act 143) introduced a new statutory section to Chapter 799 regarding situations when a landlord accepts past due rent from a tenant after the tenant’s tenancy has been terminated.  Newly created sec. 799.40(1m) states as follows:

If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may NOT be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant’s tenancy.

On its face, this seems like a very helpful statute for landlords.

As a quick refresher, it is important to remember that a tenant’s tenancy can be terminated in many ways such as after the “cure” period passes after being properly served with a 5 day notice, 14 days after being properly served with a 14 day notice, or when a lease term ends.

Prior to sec. 799.40(1m) being created, tenant’s advocates argued — and some courts held — that if a landlord accepted past due rent from a tenant after the expiration of the tenant’s tenancy that the landlord entered into a new agreement with the tenant for a month to month tenancy, thus waiving the landlord’s right to proceed with an eviction action based on the prior notice.

I personally believe that such arguments are hogwash, but I will not digress, as that is not the purpose of this post.

Nonetheless, because this “waiver” argument was successfully raised in the past, I have always advised my clients to err on the side of caution and not accept past due rent after the tenant’s tenancy was terminated.  A landlord can refuse past due rent in one of two ways.  First, a landlord can simply refuse the tendered past due rent from the tenant or return the rent payment to the tenant.  This is always a difficult pill for landlords to swallow as they know that by returning the rent payment to the tenant that they will never see that money again.

Second, a landlord could hold the past due rent payment in escrow (not cashing the check or money order) and immediately write what I refer to as a “no waiver” letter and send to the tenant via certified and regular mail.  A “no waiver” letter simply advises the tenant that their past due rent payment is not being accepted as their tenancy has already been terminated.  The letter also should advise the tenant that it is the landlord’s intent to pursue the eviction of the tenant and that the landlord will hold the past due rent in escrow pending a determination by the eviction court as to who legally has the right to possess the rental property.  Finally, a “no waiver” letter should again remind the tenant that the payment they made is not being accepted.

Whenever I have drafted a “no waiver” letter for a client that has accepted past due rent from a tenant post tenancy, I never had a court hold that my landlord client waived his/her right to proceed with the eviction lawsuit.  As a result, my clients have become big fans of the “no waiver” letter.

With the creation of sec. 799.40(1m), it would seem that there is no longer a need for a landlord to send a “no waiver” letter or to return a past due rent payment to a tenant . . . or is there.  I would caution landlords against thinking that this newly created statute is the panacea that it appears to be.

Let me explain.

First, if you read the new law closely — which I don’t believe the drafters did or they would have remedied this oversight – it states that an eviction based on a tenant’s failure to pay rent, may not be dismissed solely because the landlord accepts past due rent after the termination of the tenant’s tenancy.

There are many basis for terminating a tenant’s tenancy besides just failure to pay rent.  Other reasons may include the expiration of a lease term or a breach of the rental agreement for something other than non-payment of rent (i.e. criminal activity, damage to the property, loud music, illegal guests etc).  The new law does not address what happens if a landlord accepts past due rent from a tenant and the tenant’s tenancy was terminated for something other than failure to pay rent.

So literally speaking, a court could still dismiss an eviction if a landlord accepts past due rent from a tenant who’s tenancy was terminated based on something other than failure to pay rent and not run afoul of the new law.  Ouch!  What about situations in which the tenant’s tenancy was terminated for failure to pay rent AND other reasons?  Does the new law apply those situations?

A second concern with the new law arose recently in Milwaukee County.  Please note that this information was relayed to me by another person so I cannot 100% vouch that I have all the facts correct since I was not present when this happened.  What I was told was that a landlord’s eviction lawsuit, based upon a tenant’s failure to pay rent, was dismissed because the landlord accepted past due rent from the tenant after the termination of the tenant’s tenancy and failed to advise the tenant that it was the landlord’s intent to still proceed with the eviction of the tenant.  The court held that newly created sec. 799.40(1m) was not applicable in this situation because the landlord failed to advise the tenant of the fact that the landlord still intended to evict them.

Simply put, the new law is not as great as it appears — so be cautious when relying on it.  Know your judge.  Know your court commissioner.  Regardless of what the law says, if the court believes it says something else or is not applicable to your specific facts, you may not get the result that you were expecting.

So as a result of above, I am still advising my clients (despite sec. 799.40(1m) being the new law in town) that they should consider refusing to accept any past due rent from a tenant after the tenant’s tenancy has been terminated.  At the very least they should send a “no waiver” letter.

So proceed with caution.

 

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Revised Small Claims Summons Required To Be Used As of November 1, 2011

In a prior post I explained that the small claims jurisdictional limit was increased from $5,000 to $10,000 as of July 1, 2011.  This change has necessitated a revision to the mandatory small claims summons form that is required to be used when filing an eviction, replevin, and collection actions under $10,000 (as well as arbitrations confirmations and personal injury claims less than $5,000).

So far, the Clerk of Courts has been accepting filings using the old mandatory summons (1 page form) as well as the revised mandatory summons (2 page form).  However, as of November 1, 2011, they will only be accepting the new 2 page summons – SC-500.  Remeber that in Milwaukee County you are required to use the Summons that is written in both English and Spanish.  All mandatory small claims forms can be found here.

So if you still have some of the old forms available make sure you use them all up by October 31st.

Don’t have your eviction delayed because you are using an outdated form!

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