One of the biggest pieces of pro-Landlord legislation in quite some time was passed by the Wisconsin Senate and adopted by the Assembly recently and will be signed into law by Governor Walker today. Unfortunately some of the pro-Landlord provisions were amended, diluted, or removed.
I am certainly not denouncing this new law. Many aspects of it will be very helpful to landlords. I just wish that more time had been allowed — the bill was fast-tracked — to allow for more discussion, thought and input and allowing for more notice. For instance, many of us in the rental industry were given one day advance notice before the public hearing on the bill which prevented many of us from attending.
I will attempt to summarize the new law in this post. As this new law plays out in the “real world” I am sure that I will be devoting additional blog posts to each provision in more detail.
The proposed effective date of this new law is March 31, 2012. So many of us will need to make some additions and/or modifications to our rental documents prior to that date.
Bankground of Legislation
The Landlord’s mnibus bill (Senate Bill 466) was put on the “fast track” for reasons unknown to me. It was introduced on February 13, 2012 by Senator Lassee. A Substitute Amendement 1 was offered by Senator Lassee on February 29, 2012. Senator Waangard then offered the first amendment to the Substitute Amendment on March 6th which was passed March 13th. Senator Lassee then offered a second amendment to the Substitute Amendment on March 12th which was passed on March 13th. The bill will be signed into law by Governor Walker today – March 21st. Approximately one month from introduction to passage into law is very fast for the legislative process.
The key provisions of the new law are:
1. Moratorium on Evictions
This provision of the original bill remained untouched by the Substitute Amendment and the two amendments to the Substitute Amendment. The new law prohibits any municipality from imposing a moratorium on eviction actions. If a municipality has a current ordinance that contradicts this new law it cannnot be enforced.
We now must hope that individual counties, courts, and commissioners adhere to this law. While I don’t anticipate courts ignoring this new law, I do anticipate court’s continuing to use the “stay” provisions of sec. 799.44(3) to give tenants additional time to vacate during the holidays. So while municipalities will no longer be allowed to impose moratoriums, courts can still prevent evictions during holidays, creating the same result.
2. Severability of Rental Agreement Provisions
The original bill stated that any provision could be severed from the agreement. So if a landlord inadvertantly included a provision that was found to be improper or retaliatory in nature it could be removed and the remainder of the agreement could be enforced.
The Substitute Amendment diluted the above considerably by adding that if a rental agreement contains one of the “7 Deadly Sins” set forth in ATCP 134.08, the inclusion of any of those provisions cannot be removed and will render the entire rental agreement void and therefore unenforceable.
Amendment 1 to the Substitute Amendment went a step further and added an 8th illegal provision that if included in a rental agreement will cause the rental agreement to be void. The new illegal provision would include any language that allows a landlord to terminate a tenant’s tenancy if a crime is committed in or on the rental property, even if the tenant couldn’t reasonably have prevented the crime.
So in the end, the new law only allows the severability of certain rental provisions. If your rental agreement contains one of the 7 prohibited provisions set forth in ATCP 134.08 or the new prohibited provision created by this new law, your rental agreement will still be be void and unenforceable. Essentially, the new law takes the regulation ATCP 134.08 and codifies it into law.
More tragic is what the “8th Deady Sin” has most likely done to some other pro-Landlord legislation that I had hoped would become law — the “Crime-Free Lease Addendum” bill. If you read my prior post on the Crime-Free Lease Addendum bill you will see that this 8th Deadly Sin language effectively decapitates this proposed bill. This is a major disappointment as I believe that had the Crime-Free Lease Addendum bill been passed it would have been the most significant piece of pro-Landlord legislation in years. Instead the “odds and ends” Landlord Omnibus bill seems to have killed it. Hopefully, I am wrong and it can be resurrected.
3. Dispostion of Tenant’s Abandoned Property
Once again, the original version of this bill was awesome. It stated that any personal property left behind by a tenant could be considered abandoned and disposed of immediately in the landlord’s discretion.
The Substitute Amendment modified the original bill by adding that any medical prescriptions and/or medical equipment left behind by the tenant must be held by the Landlord for 7 days. The Substitute Amendment also added that written notice must be sent to the tenant (and any secured party) prior to disposing of any titled vehicles or mobile homes deemed abandoned. I could live with both of those modifications.
However, the amendments to the Substitute Amendment added language that will require landlords to jump through a few hoops. The new law requires that a landlord provide written notice to the tenant at the time of entering into the rental agreement, and at each renewal of the rental agreement, informing the tenant that the landlord will not hold any property left by the tenant and that such property will be deemed abandoned and will be disposed of. Failure to provide this written notice to the tenant requires a landlord hold the abandoned property fpr a period of time as set forth in sec. 704.05 (5), Wis. Stats.
Essentially landlords will now be required to add a new language to their rental agreements — and any renewal agreements — advising tenants that any property left behind will be considered abandoned and can be disposed of. Looks like there will be a revised Rental Agreement being sold at Wisconsin Legal Blank Co., in the near future : )
4. Information Check-In Form
This is one of the provisions of the original bill that I didn’t care for. A landlord will now be required to provide a standardized information check in sheet to each tenant that contains an itemized description of the premises. The Substitute Amendment merely added that this form must be given to the tenant at the time of occupancy rather than at the time of signing of the rental agreement.
As I understand this law, this does not just mean that the landlord can give his new tenant a blank Information Check-In form to fill in — which many landlords are already doing. Rather it means that the landlord must completely and thoroughly fill out the Information Check-In form to adequately describe the condition of the rental unit and give it to the tenant. So if you are not thorough in your description of the renal unit this document could be used against you by the tenant, after the tenancy has ended. This new provision of the law will clearly cause additional work for landlords and I fear could harm the less detail-oriented landlords out there when pursuing a tenant for damages to the unit or withholding portions of the tenant’s security deposit for damages.
5. Holdover Damages Are Mandated
The new law requires that landlords be awarded holdover damages. If a tenant stays in the rental unit beyond his tenancy, the landlord is now legally entitled to — at a minimum — double the daily rent for the time period after the tenancy ended (i.e. the notice expired) until the tenant actually vacates the unit.
This is a positive change because current law (sec. 704.27) only states that a landlord “may” be awarded holdover damages — and some courts would not award landlords these damages. The new law says that a court “shall” award a landlord holdover damages, at a minimum.
6. Withholding From A Tenant’s Security Deposit
The new law has merely codified the provision of ATCP 134.06(3), which states that a landlord is allowed to withhold the following from a tenant’s security deposit: (a) Tenant damage, waste or neglect of the premises, (b) Unpaid rent for which the tenant is legally responsible, (c) Payment which the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent, (d) Payment which the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant’s nonpayment, (e) Unpaid mobile home parking fees which a local unit of government has assessed against the tenant to the extent that the landlord becomes liable for the tenant’s nonpayment, (f) Other reasons authorized in the Nonstandard Rental Provisions.
The new law also adopts the portions of ATCP 134.06 which state that a landlord cannot withhold from a tenant’s security deposit for normal “wear and tear” or other losses which the tenant cannot reasonably be held responsible.
7. Timing For Return of Security Deposit
The original bill indicated that in situations where the tenant broke the lease prior to the end of the term that the landlord need not return the security deposit or provide an accounting of how the security deposit was applied until 21 days after the lease term ended or within 21 days of a new tenant taking occupancy. This langauge is a substantial improvement over current law as it allows a landlord to hold the security deposit until he is able to determine if any future rent will owed by the breaching tenant if the landlord cannot locate a new tenant to re-rent the property to. I explain this issue in more detail in my earlier post on the Landlord’s Omnibus Bill.
The Substitute Amendment waters this down a bit. The new law will now codifies ATCP 134.06(2)(a) and states that a landlord shall deliver or mail to a tenant the security deposit or itemization of how the security deposit was applied within 21 days after any of the following: (a) if the tenant vacates on the last day of the rental agreement, the date on which the rental agreement terminates, (b) if the tenant vacates before the end of the rental agreement, then the date on which the rental agreement terminates or, if the unit is re-rented before the end of the rental agreement, then the date on which the new tenancy begins, (c) if the tenant vacates after the last day of the rental agreement, the date on which the landlord learns that the tenant vacated, (d) if the tenant was evicted, the date on which the writ was executed or the date that the landlord learns that the tenant vacated.
So the new law kept the good part of the original bill but by codifying ATCP 134.06(2)(a) the landlord must return a tenant’s security deposit or send out the itemization of how the security deposit was applied earlier than when the original bill stated in situations where the tenant was evicted.
8. Disclosure of Code Violations
The original bill required that a landlord disclose to any prospective tenant any uncorrected building code or housing code violations prior to the signing of a rental agreement, accepting of a security deposit or accepting of earnest money.
The second Amendment to the Substitute Amendment modified the original bill and as a result the new law requires a landlord to disclose to a new tenant any uncorrected building code or housing code violations if the landlord has actual knowledge of the violation (rather than if the landlord had received notice of the violation from a housing code enforcement agency as under the original bill).
Specifically the new law requires the disclosure to the new tenant if the following four conditions are met: (a) landlord has actual knowledge of the violation, (b) the violation affects the rental unit or a common area, (c) the violation presents a significant threat to the tenant’s health or safety, (d) the violation has not been corrected.
9. Request for Repairs
The orginal bill required that a tenant first notify a landlord in writing of any repair or maintenance issue, and then allow adequate time for the landlord to address the issue, before reporting the problem to the building inspector, elected official, or housing code enforement agency. The Substitute Amendment removed this provision in its entirety so the law has not changed — tenants are allowed to call whomever they want to complain about maintenance issues without any requirement that they first notify the landlord of the problem.
10. Acceptance of Past Due Rent
The new law states that if a landlord has filed an eviction against a tenant and the landlord accepts past due rent from the tenant during the course of the eviction, that the court cannot dismiss the eviction solely based on the landlord’s acceptance of past due rent from the tenant.
I really like this provision of the new law becasue currently, many tenants and their attorneys argue that if an eviction is pending and a landlord accepts past due rent from a tenant, that the landlord’s acceptance of that rent has effectively “waived” the landlord’s right to proceed with the eviction.
11. Tenant Remedies
The Substitute Amendment added that any violation of chapter 704, including the provisions of the new bill, may constitute an unfair trade practice which may allow the tenant to sue a landlord for double damages and attorney’s fees.
I don’t like this new provision of the law for one simple reason. I believe it will be used by tenants and tenant’s attorneys to seek double damages and attorney’s fees whenever a landlord allegedly violates any provision of chapter 704, whether the violation is a true unfair trade practice violation or not. Only the provisions of ATCP 134, which will be codified in ch. 704 under this new law, deal with unfair trade practices. Nonetheless, I anticipate that we will see some very creative arguments by tenant’s and their attorneys as to why a tenant should be awarded double damages and attorney’s fees for violations of chapter 704 that are not unfair trade practice violations.
Now we will have to wait and see how this new law “plays out” in the real world of landlording. Some of the key things everyone will need to address before March 31, 2012, when the law takes effect are:
1. Make sure any rental agreement you enter into with a tenant after March 31, 2012, does not contain any language that would be in violation of the “8th Deadly Sin” which essentially means eliminating or modifying any language similar to that found in the Crime-Free Lease Addendum.
2. Make sure to add language in your rental agreement, and any renewal documents, stating that any property left behind by the tenant will be considered to be abandoned and will be disposed of by the landlord without any further notice to tenant (except for medical prescriptions and medical devices, mobile homes and titled vehicles).
3. Rename your Check-In / Check Out Sheet as “Information Check-In Sheet” and insure that you provide any new tenants with a completed copy of the form thoroughly documenting the condition of the rental unit.
4. Disclose any code violations that you have actual knowledge of that may present a significant threat to the tenant’s health or safety before entering into a rental agreement or accepting a security deposit or earnest money.
Good Luck Everyone
ADDITION: 3/21/12 – Make sure you read my 3/21/12 post about why I now think this new law will actually hurt landlords more than help them
ADDED 4/11/12 — Here is the link to the new law.
ADDED 4/11/12 – Here is a link to an article I recently authored on the new law.
ADDED 4/11/12 – Here is a link to the newly revised Wisconsin Statutes Chapter 704 re: Landlord and Tenant