Posts Tagged Evictions

State’s Budget Bill Amends Tenant Protection Act

Jul 22

Posted by Tristan R. Pettit, Esq. in Evictions, Foreclosures, Legislation | No Comments

On June 29, 2009 Governor Jim Doyle signed the 2009-11 state biennial budget bill into law.  This law in part made modifications to the Tenant Protection Act (starts on page 108) which offers tenants certain protections during the foreclosure process.  My earlier post on the Tenant Protection Act can be read here.

Specifically, the state budget bill modified the current law related to tenant protections in foreclosure actions as follows:

1.      ADDED – If  an eviction action seeks to remove a tenant whose tenancy was terminated as a result of a foreclosure judgment and sale, the complaint must identify that the lawsuit is an eviction that is being brought as a result of a foreclosure action.

2.     ADDED – A tenant cannot be named as a party in a foreclosure action unless s/he  has a lien or ownership interest in the property.  The fact that a tenant lives in the rental property that is being foreclosed upon is not enough to name them as a party in a foreclosure action.

3.     ADDED – If a tenant is improperly named as a party in a foreclosure action the court shall award the tenant $250 in damages plus his/hers reasonable attorney’s fees.

4.     DELETED – The portion of the Tenant Protection Act that required the exclusion of any tenant information related to foreclosure actions from appearing on CCAP.   That section was replaced with #2 above.

Tags: , ,

Milwaukee County to Post Notice on Who Can File and Appear in Court on Eviction Actions

Jul 21

Posted by Tristan R. Pettit, Esq. in Evictions, LLC's | 3 Comments

A friend of mine who is an employee at the courthouse and does much work in small claims court, and more specifically eviction court, forwarded to my attention earlier today a copy of a notice that will soon be posted in Room 400 (Eviction Court) and Room 104 (Clerk of Courts) of the Milwaukee County Courthouse.

The notice addresses the issues of who may sign an eviction summons and complaint and who may appear in court on an eviction lawsuit.

The notice that will be posted reads as follows:

_____________________

PLEASE NOTE

 In Small Claims Eviction cases, you may only sign complaints and appear in court on behalf of a property owner if you are one of the following:

  • The property owner (if the property is not owned by a corporation/limited liability corporation)
  • A full time employee of the property owner
  • An attorney

Employees of management companies or other outside service providers may not sign complaints or appear on behalf of property owners 

__________________

If this notice is going to be posted then it appears as if the clerks, court commissioners and judges will be dismissing eviction lawsuits that violate the above notice.

To read my earlier posts on these topics just click here and here.

Tags: , ,

MILWAUKEE CO. TO REQUIRE LLCs TO BE REPRESENTED BY AN ATTORNEY

May 15

Posted by Tristan R. Pettit, Esq. in Evictions, LLC's | No Comments

It has recently come to my attention that Milwaukee County small claims court will in the very near future prohibit any individual other than a lawyer to represent a LLC’s in court. This would mean that a landlord that owns his rental property in an LLC would no longer be able to appear in court to pursue his/her eviction case against a tenant. This is a change from how things have operated in the past and also different from what the law says in my opinion.

For those crafty landlords reading this who think that they will be able to circumvent this roadblock by merely filing the lawsuit in their individual names rather than in the name of the LLC that actually owns the property – you may want to read my earlier post entitled WHO MAY BRING AN EVICTION LAWSUIT.

As background, Wisconsin corporations have been required to appear in court through an attorney in large claims court since 1997 (Jadair Inc. v. U.S. Fire Insurance Co., 209 Wis.2d 187, 562 N.W.2d 401 (1997)). To date there is no case or statute that specifically requires an LLC to be represented by an attorney in large claims court although the reasoning for why only an attorney can appear in court on behalf of a corporation can quite easily be applied to an LLC as well.

Small claims court has been much different then large claims court however. In small claims court landlords have been able to appear in court themselves on behalf of their LLC because of §799.06(2), Wis. Stats. In essence the law says that as long as you are a full time employee of the LLC, or a member of the LLC yourself, you to represent the LLC in small claims court. While the statute prohibited most management companies from appearing in court for an LLC (since most management company employees are not full-time members of the LLC that owns the property but rather a full time employee of the management company that has been hired to manage many properties owned by various LLCs) at least the smaller landlord that owned and operated his/her own rental property could appear in court.

Apparently this will no longer be allowed as a friend of mine informed me that just this week he was warned by a Milwaukee County court commissioner that Milwaukee is preparing to require LLCs to appear in small claims court by attorneys only. Obviously this is going to put a financial strain on many smaller landlords that do not have the financial resources to retain a lawyer to represent their LLC every time they need to evict a tenant.

Tags:

WHO MAY BRING AN EVICTION LAWSUIT

May 8

Posted by Tristan R. Pettit, Esq. in Evictions | 2 Comments

§799.40 of the Wisconsin Statutes states that an eviction action may be commenced by a “person entitled to possession of the property.” This law has often been ignored and many eviction lawsuits have been brought in the name of someone other than the owner of the property. Oftentimes a management company is named as the plaintiff rather than the actual owner of the property.

Milwaukee County is paying close attention to this issue lately. At one of my pre-trials with the court commissioner on an eviction action this week I was specifically asked by the commissioner if the plaintiff whom I was representing was the owner of the real estate. The court commissioner then proceeded to go to his computer and search the internet to confirm that my client was indeed the person who’s name was on the deed to the property.

I have heard of several eviction actions being dismissed lately because the name of the plaintiff did not match the name of the person on the deed.

While many management companies have written agreements with the owners who’s property they manage that allows the management company to bring an eviction lawsuit on behalf of the owner, I am not aware as to whether or not that argument will prevail. It might or it might not but why take the chance.

Be safe and make sure that the named plaintiff in the eviction action is the person or entity that owns the property at issue – it is the law.

Tags: ,

TENANT PROTECTION ACT PASSED

May 1

Posted by Tristan R. Pettit, Esq. in Evictions, Foreclosures, Legislation | 2 Comments

A new law has recently been passed that will affect rental property owners that may be in the unfortunate position of having their properties foreclosed upon as well as those individuals that may be purchasing a property that has been foreclosed.  Sen. Lena Taylor’s bill referred to as the “Tenant Protection Act” (SB 78) was incorporated into the budget repair bill that was recently passed. 

The new law requires that the property owner notify any prospective tenant in writing that (a) a foreclosure action has been commenced, and (b) if a judgment for foreclosure has already been entered, the date when the redemption period expires.  Further any rental agreement that is entered into while a foreclosure action is pending must include a separate written statement, signed by the tenant, stating that the owner has provided the above notice to the new tenant.  The rental agreement will be voidable at the option of the tenant if it does not include the written statement.

With regard to current tenants, the new law requires that the plaintiff in the foreclosure action (typically a financial institution) give the tenants several notices advising them as to the status of the foreclosure action.  Failure to provide the notices will allow the tenant to be awarded $250 in damages plus reasonable attorney’s fees.

Also under the new law, if a tenancy is terminated as a result of a foreclosure judgment the tenant may retain possession of the unit for up to 2 months after the end of the month in which the sale of the property is confirmed (but the tenant must pay rent during this period at the same rate that was applicable prior to the confirmation).  Also the tenant may withhold rent in an amount equal to the security deposit during the last month of possession.  Furthermore, no eviction judgment for the removal of the tenant whose tenancy was terminated as a result of a foreclosure judgment, may be executed before the end of the second month after the foreclosure sale was confirmed.

Finally, if an eviction action was commenced against a tenant and their removal from the rental property was due to a mortgage foreclosure then no information regarding that eviction can be included on CCAP.

The newly enacted law can be viewed here (it starts on page 108)

Tags: , ,