Posts Tagged Evictions

SMALL CLAIMS BENCH/BAR MEETING: Milwaukee County Gives Clarification Regarding Including Late Fees In 5 Day Notices and Other Issues

Dec 9

Posted by Tristan R. Pettit, Esq. in Evictions, Late Fees, Milwaukee County, Notices | 3 Comments

The Milwaukee County Small Claims court has reinstituted its monthly Bench/Bar meetings.  These meetings allow the Milwaukee County Small Claims Court, including Judge Jane Carroll (presiding small claims judge) and the court commissioners, to come together with attorneys that appear regularly in small claims court, to discuss issues and concerns.

The most recent small claims bench/bar meeting was held on Monday, December 6, 2010.  I was able to attend the meeting and found it to be very insightful.  The meeting was attended by attorneys for tenants (Legal Action of Wisconsin, Inc.), attorneys for landlords (myself and a few others), the attorney for the AASEW, court commissioners, small claims judge, and other court staff.  The overall response to the meeting was very good and Judge Carroll indicated that another meeting would be scheduled in January. 

It was very enlightening — and helpful — to hear everyone discuss issues of concern and to learn the thought process behind certain rules and procedures in small claims court.

For those of you that could not attend the meeting, I have attempted to provide a summary of the discussion, below:

-  Judge Carroll explained that she felt that nothing was wrong with a landlord including a late fee in a 5 day notice as long as the tenant was under a lease for a term as opposed to a month to month or other periodic tenancy.

Back in March of 2009 or so, when Judge Siefert was still the small claims judge, evictions were being dismissed if the landlord included late fees in the 5 day notice which was served on the tenant.  Here is a post on that topic that I previously wrote.

It was origianlly explained to me several months ago, that the reason for this new policy was that the court was now reading the statute very strictly, and sec. 704.17(1), Wis. Stats. (regarding notices in month to month situations and other periodic tenancies) and sec. 704.17(2), Wis. Stats. (regarding notices in leases for a specific term) said that a 5 day notice could be given to a tenant for failure to pay “rent.”  “Rent” was strictly interpreted to include rent — not late fees, security deposit amounts not paid, damages owed etc.

The discussion on this issue at the bench/bar meeting clarified that the court considered a tenant’s failure to pay a late fee to be a “breach of a covenant or condition of the tenant’s agreement” rather than a failure to pay rent and therefore a landlord would need to use a different 5 day notice — one for breach other than failure to pay rent — as opposed to a 5 day notice for failure to pay rent, in that particular cotext.

Judge Carroll said that she saw no problem with a landlord combining the two notices, as long as the tenant was under a lease for term, thus allowing a landlord to include a late fee in a 5 day notice for failure to pay rent. 

The combining of notices (to include a late fee and the past due rent amount) would NOT be allowed (and could result in the dismissal of an eviction) if the tenant was under a periodic tenancy, such as a month to month tenancy.  The reason for this distinction is that the Wisconsin Statutes do not allow a landlord to serve a tenant with a 5 day notice for the breach of lease for other than non-payment of rent.  If there is a breach of the lease for anything other than the non-payment of rent, in a month to month or other periodic tenancy, the Wisconsin Statutes require that a 14 day notice be used.

The court further explained that if a tenant was under a month to month or other periodic tenancy, that a landlord could combine the notices (failure to pay rent and breach of agreement other than failure to pay rent) into a 14 day notice if the landlord wanted to include a late fee along with the rent owed.  It should be noted however that 14 day notices do not allow a tenant the opportunity to cure the breach.

If this sounds confusing to you, you are not alone – IT IS CONFUSING!!  This is an example of the minutia of the law.

A quick summary:

1.  It is OK to include a late fee in a 5 day notice for failure to pay rent as long as the tenant is under a lease for term (as opposed to a periodic tenancy like a month to month).

2.  It is NOT OK to include a late fee in a 5 day notice for failure to pay rent if the tenant is a month to month tenant.  In that case the 5 day can only list rent owed OR the landlord should use a 14 day notice if the landlord wants to include a late fee.

Truthfully, I think the above will cause more confusion for landlords that are representing themselves (pro se) and for attorneys who do not specialize in landlord-tenant law.  To keep things simple I am still going to reccomend that my Milwaukee County landlord clients not include late fees in their 5 day notices.

-  Small claims court will NOT be splitting up the 2 pm (initial appearance on evictions) court calandar as it did last year. 

Many of you may recall the attempt by the courts to reduce the amount of people sitting in room 400 during the flu season last year.  The goal was to prevent people from spreading the flu and so the court split the eviction calandar in half and made some landlords appear at 2 pm and others appear at 3 pm. 

If you were a landord or attorney with multiple properties having multiple owners (some with names in the beginning of the alphabet and some toward the end of the alphabet), this often met you were stuck in small claims court even longer than usual.  Even with the splitting of the court’s calandar there were still a lot of people sitting in room 400 at one time - so I’m not sure that the transmission of the flu was really reduced.  I was happy to learn that the court would be forgoing this splitting of the calandar this season.

- The court asked for everyone’s thoughts regarding requiring a landlord to provide written notice to a tenant that defaults on a stipulated dismissal, in all circumstances.

Currently, if a tenant enters into a stipulated dismissal of an eviction action and agrees to either vacate by a date certain or remain in the unit and pay past due rent under a payment plan, and the tenant defaults on the stipulation, a landlord may come to court and file an Affidavit of Default and obtain a judgment of eviction and a writ of restitution WITHOUT having to provide the tenant with any notice.

Under a slightly different scenario, it is the policy of small claims court currently, that if the tenant enters into such a stipulated dismissal outside of court (i.e. signs the stipulation at the office of the landlord) and therefore neither the court nor the landlord’s attorney explains the stipulation to the tenant, and should the tenant default, the landlord MUST provide written notice to the tenant of the default and provide the tenant with the date and time that the landlord will be coming to court to request the judgment of eviction and writ.

Judge Carroll expressed concern that some of these stipulations, notably those that involve payments that will occur several months into the future, should possibly require written notice to the tenant.  Judge Carroll indicated that in some of the stipulated dismissals that she approves in her court (as opposed to those approved by the court commissioners in room 400) she requires the landlord to provide written notice to the tenant of the default, if the default occurs 5 months or more after the stipulation was entered into.  Judge Carroll’s concern was that some tenants would default on the stipulation and think they were working things out with the landlord to remedy the default, only to be surprised when the Sheriff was at the door ready to evict the tenant, thus leaving the tenant little time to move.

Many suggestions and opinions were offerred during the discussion.  I indicated that requiring another level of notice to the tenant would just cause further delay to the landlord in getting possession of his/her rental property and would allow the tenant another opportunity to argue that they didnt receive the “notice” and therefore should have additional time to vacate.  One suggestion was to require landlords to send a letter via regular U.S. mail to the tenant within 48 hours after going into court to file the Affidavit of Default and obtaining the eviction judgment and the writ.  Another suggestion was to require such notice only in situations in which the landlord and tenant modified (orally or in writing) the terms of the stipulated dismissal.  Yet another suggestion was to require such a notice only when the default occurred X number of months after the stipulation was entered into. 

No decision was made to modfify the notice requirements in defaults of stipulated dismissals but the court appreciated everyone’s thoughts and input and indicated that the topic may be addressed again in the future.

- Judge Carroll expressed concern with “proving up” modifications to stipulated dismissals or other agreements.

Judge Carroll indicated that she has witnessed many instances in which a landlord, who has already received a judgment of eviction and a writ, would then attempt to work with a tenant so that they could remain in the unit, rather than executing that writ with the Sheriff.  Nothing is wrong with attempting to work to keep the tenant in the unit in, Judge Carroll explained,but what is a problemis that these agreements are not being put in writing.  To avoid confusion, and possibly additional litigation, she emphasized that any agreement resulting from such negotiations should ber put in writing. Modifications to previosuly enetered into agreements are not being put in writing and this is resulting in the Court seeing a lot of “he said, she said” sitautions.

The practical effect of failing to memorialize such agreements or modifications often results in the scenario below:

At some point in time the landlord decides to stop working with the tenant to keep them in the rental unit, and tenders the writ to the Sheriff.  The Sheriff gives the tenant a 24 hour notice before executing the writ which causes the tenant to run into court and file a motion to reopen the judgment of eviction. The tenant argues that while a writ was granted to the landlord, since that time the landlord began to work with the tenant to allow them to remain in the unit.  The landlord told the tenant that they could stay if they did X and Y (or at least that is what the tenant “heard”) and the tenant has done X and Y, so the landlord should not be allowed to have the writ executed becasue of the new agreement.  The court then schedules a hearing on the tenant’s motion to reopen the eviction judgment — which results in a stay of the execution of the writ.  The landlord now has to appear in court again and both the tenant and the landlord have differernt versions of their discussions and the court has to sort through all of this — with nothing in writing to support either side’s argument.

The court understands that landlords would often like keep a tenant if possible, and that is the reason for a landlord attempting to “work with”  a tenant even after a writ has been obtained.  But as Judge Carroll pointed out, because these modification are not put in writing there is often disagreements as to what was agreed to between the parties.

My thoughts on this issue are simple: (1) If you have a writ, execute it and remove the tenant from your rental property — the time for trying to work with the tenant so that they can remain in the unit is long past if you have filed an eviction action against them, in my opinion, or (2) if you still want to work with the tenant so that they can remain in the unit at this late date  —– put the agreement in writing, using  clear and simple terms tht the tenant, the landlord, and the court, can understand and interpret.

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What Is The Effect On The Eviction Process If A Tenant Files Bankruptcy?

Sep 15

Posted by Tristan R. Pettit, Esq. in Bankruptcy, Evictions | 51 Comments

I have had a number of people ask me over the last several months to address what effect a tenant filing bankruptcy has on the eviction of that tenant.  I have been delaying writing that blog post and I apologize for that.  Bankruptcy is a tricky area of the law, and I am by no means an expert in bankruptcy law, but I will attempt to provide you with a general summary of how a tenant filing bankruptcy effects a landlord’s attempt to evict that tenant.

Once an individual files bankruptcy (which I will refer to as “BK” for short to prevent having to type the word “bankruptcy” 25,000 more times during this post) all creditors of the debtor (person filing BK) are “stayed” from pursuing the debtor for repayment of any monies owed.  This is referred to as the “automatic stay” and is specifically addressed in Title 11 of the United States Code (U.S.C.) at section 362.  The automatic stay applies whether the individual files for BK under Chapter 7 (liquidation) or under Chapter 13 (reorganization).

There are some exceptions, but for the most part, the “automatic stay” prevents any creditor from attempting to collect a debt from the debtor.  Before a creditor can pursue the debtor for money owed the automatic stay must be “lifted” by the BK court.  So, essentially, you must get permission from the BK court before you can attempt to collect.

The need to seek permission from the BK court applies to a landlord that has not been paid rent by his/her tenant, if the tenant has filed for BK, as well.  Practically speaking, this means that a landlord cannot telephone a tenant to ask when they are going to pay rent that is owed, a landlord cannot draft and serve a 5 Day Notice (or a 14 Day notice) on a tenant, a landlord cannot file an eviction action against a tenant, if the tenant has filed for BK. 

As many of you who have already gone through the eviction process well know, the entire process can take anywhere from several weeks to months to complete.  All the while you have no rent coming in.  If your tenant has filed BK, the process will take even longer. 

In order to “lift” the automatic stay, a landlord must file a Notice of Motion and Motion To Lift The Automatic Stay with the BK court.  There is a filing fee that must be paid.  The tenant/debtor then has a period of time in which to reply to the motion.  Next, a hearing will be scheduled on the motion.  This hearing is typically not even scheduled until after the time has passed for the tenant/debtor to reply to the motion, then due to the BK court’s heaving calandar, the hearing will often be scheduled out several weeks into the future.

In the motion, and at the hearing, the landlord will need to set forth the pertinent facts and law and ask the BK court to lift the stay in order to allow the landlord to serve the tenant with a notice to pay or vacate, and if needed, follow that up with the filing of an eviction.  There are various scenarios that can play out at the hearing – too many to address in this post.  Oftentimes, if the BK court determines it is feasible, the BK court will attempt to broker a deal if the tenant/debtor wants to continue to reside in the unit — this often entails the landlord being strongly persuaded to allow the tenant/debtor to continue residing in the rental unit in exchange for the tenant/debtor agreeing to reimburse the landlord for past due rent via a payment plan.

One exception to the automatic stay that can greatly help landlords, is if the landlord has already obtained a judgment of eviction against a tenant, prior to the tenant filing BK, then the automatic stay does not apply and the landlord is allowed to execute the writ with the Sheriff and have the tenant removed from the rental unit (11 U.S.C. Section 362(b)(22)).  In order for this exception to apply, the judgment of eviction must already have been granted prior to the tenant filing BK.  If no judgment of eviction has been entered, then it is irrelevant whether or not the landlord has already served the 5 Day Notice, filed the eviction lawsuit, had the eviction lawsuit served on the tenant, or already appeared in court —- the automatic stay will still apply. 

It should also be noted that if a landlord has obtained a judgment of eviction prior to the tenant filing BK, this only allows the landlord to proceed with the execution of the writ.  It does not allow the landlord to pursue the tenant for money owed (what is often referred to in Milwaukee County as the 2nd and 3rd casues of action).  If a landlord wishes to obtain a money judgment against the tenant/debtor, s/he would still need to seek relief from the automatic stay from the BK court.

As you can see, a tenant’s BK filing can have a HUGE impact on a landlord’s ability to evict a tenant and recover possession of the rental unit.  Once a tenant has filed for BK, a landlord must stop all attempts at collecting past due rent from the tenant or evicting them.  Failure to abide by the automatic stay can result in a landlord being sanctioned by the BK court and if a landlord ”willfully” violates the automatic stay, the injured party (the tenant/debtor) can recover actual damages from the landlord, including court costs and attorney’s fees, as well as punitive damages.

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EXECUTION OF WRIT: Part 2 – The Details

Aug 17

Posted by Tristan R. Pettit, Esq. in Evictions, Execution of Writ, Milwaukee County | No Comments

Last week I provided some basic information about what is involved in the execution of a writ of restitution (eviction) and how the process works.  With this week’s post I wanted to provide everyone with some additional — more detailed — information about the execution process.  I attempted to group these tidbits of info by category.  Much of the information below is specific to Milwaukee County and the Milwaukee County eviction squad.

General

-  The applicable Wisconsin Statute regarding executing a writ is 799.45, Wis. Stats.

-   Milwaukee County Eviction Squad’s phone number is (414) 278-5030. 

-   A typical eviction move-out takes 1 hour.

-   Approximately 15-20 evictions are performed per day.

-   There is both a 1st and a 2nd shift that performs evictions.  The 1st shift arrives at the office around 7 am.  The 2nd shift works until 8 pm.

-   The landlord should alert the Sheriff if any of the following apply: (1) the tenant has mental health issues, (2) there are dangerous dogs residing in the unit, (3) the tenants are believed to be involved with drug dealing, (4) there are guns on the property, (5) the tenant is elderly and/or disabled and has no place to move to or family to assist him/her.

The reason that the Sheriff wants to be notified of (1) – (4) is for the Sheriff’s own safety.  If there is a mentally unstable tenant, dogs, drugs, guns, or some other factor that might result in the increased risk of injury, the Sheriff wants to be notified of this in advance so that they can have back-up near by.  The execution of a writ can be very dangerous.  Tenants who are being displaced from their homes are often emotional (understandably so).  I have heard of Sheriff’s deputies being injured and even killed while performing an eviction.  If a landlord has any inkling that there could be issues during the eviction this should be communicated to the Sheriff’s Department.

The reason that the Sheriff wants to be notified of (5) (if the tenant is elderly and/or disabled and has no family to assist or place to move to) is because the Sheriff will then contact the Department of Aging or a social service agency prior to the eviction so that someone can be on hand to assist the elderly and/or disabled person in locating a safe place.

The best way to notify the Sheriff of any of the above conditions is to attach a note to the paperwork that you are filing with the Sheriff.  This way the clerk can pass that note along to the eviction squad along with the Writ.

-   After the tenant’s property has been removed, the tenant and any other individuals living in the unit will be escorted out of the unit.  The Sheriff will put a placard on the door.  If the tenant returns and enters the unit after the eviction has occurred the police should be called.  The Sheriff cannot make a tenant leave the apartment complex or neighborhood as the Sheriff only has the authority to remove the tenant from the unit.  

Eviction Route

-   The eviction squad performs all evictions on the south side of Milwaukee first and then they move to the north side.

Notification To Landlord

-   The Sheriff will do its best to notify the landlord of the date and time for the eviction on three different occassions: (1) the night before the eviction is scheduled, (2) at 7:30 a.m. the morning of the scheduled eviction, and (3) as they are driving to the property to perform the eviction.

Moving Companies

-   Certain moving companies are used only on certain days of the week in Milwaukee County.  So a landlord does have some control over what day of the week his/her eviction will occur by choosing who to hire as the moving company.  If Eagle Movers has been retained then the Sheriff will schedule the eviction for Monday, Wednesday, or Friday.  If Aetna Movers are hired then the eviction will occur on a Tuesday.  If Dweyer Movers (owned by Eagle Movers) are used then the eviction will be on a Thursday.  Wednesdays are reserved for JC Triplett.

Appliances

-   If the landlord provides appliances with his/her rental unit then the landlord should notify the Sheriff of this.  The landlord should also provide the Sheriff with information about the type of appliances, manufacturer, color etc.  If the Sheriff is not advised of this information and the tenant tells the moving company that the appliances are his/hers, there is little the Sheriff can do to prevent this type of theft.

Storage Lockers

-   If the tenant has property stored in a storage locker which needs to be removed, the Sheriff needs to be told of this.  If the landlord does not know which storage locker is the tenant’s, the Sheriff will not remove any items from any of the lockers as they could be held responsible if they remove items from the wrong storage locker.

Tenant’s Personal Property

-   The Sheriff has the authority to decide what of the tenant’s belongings are of no value (junk) and what is valuable and should be packed and moved to storage.

-   Neither the Sheriff nor the moving company will remove a tenant’s clothing.  This rule is in place for safety reasons because in the past the Sheriff/movers were stuck by needles that were left in clothing.

-   Only large items will be removed.  Smaller items will be left in the unit for the landlord to remove. 

-   If the tenant’s property is infested with roaches, bed bugs, or some other critter, the items will NOT be moved.  Moldy items will also not be placed into the moving truck.  The moving companies do not want to help spread these infestations throughout the city so the removal of such property will be left to the landlord.

-   Once the Sheriff determines what is junk/garbage, the landlord then has a choice to either leave the junk in the property (which the landlord can then remove later) or have the moving company haul everything to the curve (which the moving company will charge the landlord for doing).

-   If a tenant is present, and his/her property is determiend to be of value, the tenant is given a choice as to what should be done with his/her belongings.  The property can be moved and placed into storage (which the tenant will then be required to pay for if s/he wants the possessions back) or the tenant can opt to have his/her property placed at the curb (for the tenant to remove).

-   If a tenant’s personal property is going to be placed into storage, the moving company must put the property into boxes, which the landlord will pay for.  While it is frustrating for the landlord to have to pay for boxes to house the tenant’s property, the moving company cannot just throw the tenant’s belongings haphazardly into the back of the truck for many reasons (safety and liability are two that come to mind).  The property will also be inventoried.

Liability for Execution of Void Writ

-   The Sheriff will be liable to the tenant for any damages resulting from the execution of a writ that was given to the Sheriff  beyond the 30 day period.  The Sheriff will also be liable for any resulting damages if the Sheriff executes a writ beyond the 10 day period.  Wolfe-Lille v. Kenosha County Sheriff, 699 F. 2d 864 (7th Cir. 1983).

Cancellation of Writ

-   Landlord must have the docket number that was giving at the time that the paperwork was filed with the Sheriff, in order to cancel an eviction.  Only the Sheriff and the landlord are given the docket number.  The tenant should NEVER be given the docket number or else s/he could cancel their own eviction.

-   If a landlord cancels an eviction, the Sheriff discards the paperwork.  As a result, a landlord cannot “un-cancel” an execution of the writ.  A landlord should never cancel the eviction with the Sheriff unless they are certain that the tenant has vacated.

Costs of Execution

-   The Sheriff charges $112.50 per hour for their time in executing a writ.

-   The total cost to execute the writ will be based on the actual hours expended by the Sheriff.  The costs will be taken out of the $130 deposit that was previously posted.  Any remaining monies will be returned to the landlord within 4-8 weeks.  If the total cost exceeds the $130 deposit, the Sheriff will send a bill for the overage.

-   The cost of the Sheriff and the moving company are all chargeable to the landlord.  However these costs will be taxed and added to any money judgment that the landlord pursues against the tenant  – whether or not the judgment is collectible, is a whole different issue.

-   The only costs that are the truly the responsibility of the tenant (aside from if the landlord obtains a judgment against the tenant and actually collects on it) are the costs incurred for the storage of the tenant’s belongings after the delivery of the property to the storage facility.

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EXECUTION OF WRIT: Part 1 – The Basics

Aug 12

Posted by Tristan R. Pettit, Esq. in Evictions, Execution of Writ, Milwaukee County | 19 Comments

I have noticed a trend in the last several months of more and more tenants refusing to leave a landlord’s rental property even after the landlord has obtained a judgment of eviction against the tenant and been issued a Writ of Restitution (“writ”).  As a result of this trend more and more landlords are being forced to go through the process of having the writ executed.  The execution of the writ is the process whereby the Sheriff actually removes the non-vacating tenant and returns possession of the property to the landlord.

Background Information:

Most eviction lawsuits have 3 causes of action or claims.  The first cause of action is for return of the rental property.  This is often referred to as the “eviction” portion and in Milwaukee County it is called the “1st cause of action.”  The 2nd and 3rd causes of action have to do with the money that the tenant might owe the landlord.  The 2nd cause refers to the past due rent that may be owed and the 3rd cause refers to any claims for physical damages to the unit and/or holdover damages.  Together the 2nd and 3rd causes of action are often referred to as the “money claims.”

This post will focus on the 1st cause of action generally, and specifically, on what a landlord must do s/he has been granted a judgment of eviction and received a writ of restitution but the tenant continues to reside in the unit. 

A landlord typically obtains a judgment of eviction (and the ensuing writ) in one of three ways.  First, the tenant fails to show for court and the landlord is granted a default judgment.  Second, the tenant appears in court and contests the eviction thus necessitating an eviction trial before a judge.  Assuming the landlord proves his/her case, the landlord obtains a judgment of eviction and is issued a writ.  Third, the tenant appears in court and admits that they are in breach of the lease and the court commissioner or judge grants a judgment of eviction against the tenant based on his/her admission and issues a writ.

Many landlords mistakenly believe that after they obtain a judgment of eviction and a writ that they can then change the locks and toss out the tenants personal property if the tenant fails to leave.  DO NOT DO THIS.  If the tenant fails to vacate the unit, even after there has been a judgment and a writ issued, the only legal way to remove the tenant is to hire the Sheriff and to have the writ executed (sec. 799.45, Wis. Stats.)  If a landlord attempts to illegally evict a tenant (also referred to as a ”self-help” eviction) th elandlord is openeing himself/herself up to either civil or criminal liability, or both.  The tenant can sue the landlord that engaged in a self-help eviction for double damages and attorney fees.  While it may seem “unfair” to require the landlord to expend more time and money after s/he has already obtained a judgment of eviction against a non paying tenant, that is what the law requires.

The Writ of Restitution:

Along with obtaining a judgement of eviction comes the issuance of a Writ of Restitution (writ).  A writ is a document that orders the Sheriff to evict the tenant and anyone else that has occupancy of the rental unit.  The writ also contains additional information that will assist the Sheriff in executing the writ, such as the name and address and phone number of the landlord, the landlord’s attorney, and the defendant/tenant.

In Milwaukee County the court does not give you a writ.  Instead the court gives you an Authorization for Writ.  The landlord must then take that Authorization to the Clerk of Courts and pay $5 in order to obtain the actual writ.  The landlord must then complete the writ and tender it to the Sheriff. 

Each county handles the distribution of the writ differently.  In Waukesha County (at least last time I was there) a landlord is required to return to court the following day to obtain the writ and pay the fee.  The Clerk completes the writ for you in Waukesha.  In Racine County, a landlord should pick up a blank writ from the Clerk of Courts before court, complete all the requested information on the writ, and then present it to the judge when the case is called and the judge will sign the writ.  No fee is required in Racine County.  In Kenosha County, a landlord must go to the Clerk of Courts after court and pay $5 and the Clerk will then complete the writ for you and hand it to you.  It is advisable to talk to the Clerk of Courts in whatever county you own rental property about the process of obtaining the writ before you appear in court.

A writ is only valid for 30 days.  If a landlord does not tender the writ to the Sheriff within the 30 day period the writ will expire and the landlord will need to start the entire eviction process over again in order to remove a tenant that is still residing in the property.  Yep, you heard me correctly.  If the landlord lets the writ expire, the landlord will need to serve the tenant with a new notice, purchase a new summons and have it filed and served on the tenant, appear in court again etc. etc.  Do not let the writ expire!  New landlords (or landlords with no previous eviction experience) should not let a tenant dupe them into not filing the writ with the Sheriff within the 30 day period.  Tenants may tell you that they just need 10 more days, and then another 5 days, and then 3 more days and they will be out, etc. etc.  If all those extra days add up to 30 – the landlord has only himself/herself to blame. 

Executing The Writ:

In Milwaukee County, only the Sheriff can legally execute the writ.  Before the Sheriff will do this however the landlord must hire a moving company.  The landlord must obtain a Letter of Authority from a licensed and bonded moving company and in return the landlord will have to shell out a refundable deposit of approximately $350 to the movers.

Once the landlord has engaged the services of a moving company the landlord should go to the Sheriff’s Department for Milwaukee County and bring along the following items:

1.  The Authorization for Writ

2.  The fully completed Writ of Restitution

3.  $130 deposit to give to the Sheriff

4.  A set of keys to the unit to give to the Sheriff.

By law, once the writ has been delivered to the Sheriff, the Sheriff must execute the writ within the next 10 days (sec. 799.45(5), Wis. Stats.)  Due to the large amount of evictions in Milwaukee, it typically takes the Sheriff the full 10 days.  Oftentimes the Milwaukee County Sheriff will mail the tenant a 24 hour notice the day before the planned eviction to give them one last chance to leave on his/her own.  This notice is not legally required and so it is irrelevant if the Sheriff does not do it for every eviction.  Think of it as a courtesy.

If the tenant still has personal property in the rental unit when the Sheriff arrives to execute the writ ,the Sheriff will then determine what of the tenant’s personal property should be stored by the moving company and what property is considered to have no value and can be disposed of.  After the tenant’s personal property has been dealt with, and if the tenant is still residing in the property, the Sheriff will direct the tenant — and any others residing in the unit — out of the unit and insure that the unit is secure.  If the tenant refuses to leave the unit, s/he will be arrested for Disorderly Conduct.  It should be noted that the Sheriff can make the tenant leave the specific rental unit but cannot make the tenant leave the apartment building or complex.  If the tenant refuses to leave the building then the landlord must call the police.

It is helpful if the landlord or his agent can be present during the eviction to answer any questions that the Sheriff or moving company may have.  I have heard of one instance where a tenant told the Sheriff that the refirgerator and stove in the unit were purchased by the tenant and were his.  This was not the truth.  The landlord was not present during the eviction however to refute the tenant (or to produce the rental agreement to the Sheriff which would have shown that the landord supplied a refrigerator and stove along with the rental) and the appliances were taken off to storage.  The landlord had a difficult time retrieving his property and had to pay a storage fee to get the appliances back.

In smaller counties — those with a population of less than 500,000 – a landlord is allowed to remove, store, and dispose of a tenant’s property himself/herself and the only role that the Sheriff performs is to supervise the landlord.  I have not had any experience with this type of eviction, so I can not provide yu with any more information other than this option is legally available to landlords who own rental property outside of Milwaukee County.

Next week I will blog on some of the smaller details involved with executing a writ that will assist you in the process.

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UPCOMING SEMINAR – How Evictions Work: Rules for Landlords and Property Managers

Jun 10

Posted by Tristan R. Pettit, Esq. in Seminars | No Comments

I will be presenting a seminar for the Institute of Real Estate Management (IREM Milwaukee Chapter #13) on several landlord – tenant law related topics in the near future

Topics to be covered:

1.   Causes for Eviction

2.   Notices To Terminate Tenancy

3.   The Judicial Eviction Process

This seminar will be held on Thursday, June 17, 2010 from 9am – 10:30 am.  Registration will start at 8:30 am.

The seminar will be held at The Wisconsin Club which is located at 900 W. Wisconsin Avenue in Milwaukee (right across from the Milwaukee County Courthouse – how appropriate : )

There will be handouts including a comprehensive outline on the topics covered and forms.

The cost will be $10 for ARM members, $25 for other IREM members and $45 for non-IREM members.  If you are interested in attending please contact Jennie Macaluso-Ruditys at (414) 476-4736.  Call Jennie ASAP as she will need to get a head count to the Wisconsin Club.

Hope to see you there.

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Finally, Some Legislation That Actually Assists Landlords – Senate Bill 607

Mar 11

Posted by Tristan R. Pettit, Esq. in Evictions, Legislation, Notices | 4 Comments

Senators Plale, Hansen, and Lasee introduced Senante Bill (SB) 607 yesterday.  What a breath of fresh air it is to read this bill.  Rather then making landlords jump through more and more hoops to protect our tenants and rental property, this bill actually assists us in doing our jobs.  I am so used to blogging about proposed legislation that hurts (or at the very least hinders) landlords that this is a nice change.

If passed, this bill will allow a landlord to terminate a tenant’s tenancy, regardless if they are a month-to-month tenant, tenant under a lease for 1 year or less, or a tenant with a lease for more than 1 year, if the tenant or the tenant’s guest, commits certain crimes, in property or near the property.

Currently if you have a tenant under a lease for one year or less or more than one year (as opposed to a periodic tenancy like a month-to-month) and if that tenant commits a crime you are legally prevented for terminating that tenant’s tenancy and evicting them.  The current law states that if a tenant under a lease commits a breach (including criminal activity) that they landlord MUST serve them with a 5 day notice that allows the tenant the opportunity to cure the breach. 

Currently the only two exceptions to the above, are the very limited situations in which the tenant has created a gang or drug nuisance at the property AND the landlord has received a written notice of drug or gang nuisance from a law enforecement agency.  Only in these two limited circumstances can a landlord serve a 5 day notice on the tenant that does not afford the tenant the right to cure the breach.

To better illustrate the current status of the law, here is an example: 

Tenant A gets drunk and runs around the apartment complex brandishing a gun and threatening to shoot anyone that he passes.  Assuming that Tenant A is not arrested and hauled off to jail,  Tenant A’s landlord is not legally allowed to terminate Tenant A’s tenancy and file an eviction action as a result of this criminal behavior if Tenant A is under a lease for one year or less or a lease for more than one year.  The only legal recourse that the landlord has is to serve Tenant A with a 5 day notice which affords Tenant A with the opportunity to cure the breach (the criminal activity) or vacate.  How does Tenant A cure the breach?  By not running around the apartment complex within the next 5 days brandishing a gun and threatening to shoot people.  Ridiculous I know, but that is all Tenant A must do to cure his breach and if he does that, the landlord is legally required to keep him as a tenant as long as the tenant is under a lease. Read the rest of this entry »

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

Aug 25

Posted by Tristan R. Pettit, Esq. in Evictions, Notices | 32 Comments

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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