Posts Tagged Landlord

Landlord Sues the Dish Network For The Costs To Remove Satellite Dishes from His Rental Property — and Wins

Most landlords have at one time been frustrated by a tenant who contacts a satellite television provider to install a satellite dish on the roof of a rental property without first obtaining the landlord’s permission.  In fact this unfortunately happens quite often.

The tenant ignores the lease provision which states that they can make no modifications to the unit, the building or grounds without the landlord’s prior written consent.  The satellite television provider doesn’t bother to notify the landlord to ask if the landlord is OK with them drilling holes into the roof of the rental unit.  If the satellite television provider even bothers to ask the tenant if s/he has obtained permission from their landlord, the tenant responds “yes, of course, go right ahead and install it so I can watch the big game on Sunday.”  The result, the landlord is stuck with an ugly satellite dish on his/her roof that needs to be removed and the strong possibility of future water intrusion problems after the tenant is long gone.

Most landlords have opted to either swallow hard and absorb the cost to remove the dish and/or fix any leak issues or attempt to hold the tenant responsible for the costs.  Even if the landlord succeeds in obtaining a judgment against the tenant – most tenants are not collectible – so it is a Pyrrhic victory.

Well a landlord in a suburb of Los Angeles County decided to pursue a different path.  Christopher Spencer opted to pursue the “deep pockets” — satellite television provider instead.  In what Mark Kellum of the Glendale News Press says is a novel and potentially precedent-setting legal case, Spencer successfully sued the Dish Network for the costs to remove three dishes from his rental property.

Spencer obtained a judgment of $850 to cover the costs to remove three satellite dishes from his apartment building and $110 in court costs.  Spencer filed the small claims lawsuit after the Dish Network refused to reimburse him after months of informal negotiations back and forth.

It would be interesting to see if a court would also order a satellite television provider to reimburse a landlord for any water intrusion damage that was caused by the installation of the satellite dish.

Remember that federal law allows a tenant to install a satellite dish on a rental property but only in an area that is exclusively under the tenant’s control — like a private porch or patio.  A tenant is not allowed to install a satellite dish in or on any common areas or area that is not under the tenant’s exclusive control — such as a roof, side of the building, shared porch etc. — unless the landlord consents.  Here is the FCC’s summary of the rule.

While Spencer’s win does not mean that a Wisconsin court must arrive at the same decision, it does give this landlord food for thought.

 

 

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Two Pro-Landlord Bills Are Proposed

Two new bills have been proposed in Madison and both of them are pro-landlord.

Landlord Pre-Emption Bill

Rep. Robin Voss has proposed what is being referred to as the Landlord Pre-Emption Bill (LRB 1296/3).  This bill prohibits any municipality from enacting an ordinance that does any of the following to a residential landlord:

1.  Prohibits or limits a landlord from obtaining or using various types of information about a tenant or prospective tenant, such as household income, occupation, court records, rental history, and credit information.

2.  Limits how far back in time a prospective tenant’s credit information, conviction record, or previous housing may be considered by the landlord.

3.   Prohibits the landlord from showing a rental property to a prospective tenant, or from entering into a rental agreement for a rental property with a prospective tenant, while the current tenant is living there.

Rep. Voss is currently seeking co-sponsors for this bill.

UPDATE – 6/14/11:  This propsed bill (Senate Bill 107) was referred to the committee on Insurance and Housing on 5/26/11.  A public hearing was held on 6/8/11.  Two amendments were made to the bill and the proposed bill passed committee by a vote of 4-3.  Here is a recent article in the Capital Times on the bill.

Water/Electric Bill (LRB 1393/1)

The second pro-landlord legislation that is out there would help landlords who have had the unfortunate experience of having a tenant’s delinquent utility bill place on their property tax bill.

LRB 1393/1 would prohibit a municipal utility that provides electric or water service to a rental dwelling from using the current arrearage collection procedure , as long as the lwner of the property has provided the utility with written notification of the name and address of the tenant who is responsible for paying for the service.  th eutility service may also request a copy of the rental agreement in which the tenant assumes responsibility for paying for the utility charges.  Once the owner has provided the written notice of the tenant’s name and address, the utility may not use the current arrearage collection procedure.

UPDATE: 6/14/11 – This propsed legislation (AB 182) was referred to the committee on Energy and Utilities on 6/13/11.

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Rejecting A Rental Applicant: The Do’s and Dont’s

Let’s face it, most landlords would prefer to never have to reject a rental applicant.  It would be great if every application that we received from a potential tenant passed muster — great credit, no prior evictions, awesome job history etc. etc.  Unfortunately, most of the time that is not the case.  Depending on how tough your screening criteria is, some of you may be rejecting a lot of applicants.  It is not fun rejecting a rental applicant, but it goes with the job of being a landlord – it needs to be done.

I would strongly suggest that if you have not read my prior post on written rental screening criteria that you do so before reading the rest of this post.  Understanding what written screening criteria is and how to use it properly, will be very helpful in getting the most out of this post.

So how does a landlord go about giving an applicant the ol’ rejection?  In most areas of Wisconsin, a landlord is not required to provide a reason for denying a rental applicant.  While this may not seem “fair” – it is legal — in most areas of Wisconsin.

CAVEAT:  Those of you that have read my prior posts know of my fondness for the city of Madison and Dane County — sarcasm intended.  Well you guessed it, Dane County and “Mad-Town” are a little different in that they require landlords to provide a rejected applicant with an explanation for denying them rental — and the explanation must be in writing.  So if you own or manage rental property in either of these liberal bastions, I would suggest that you spend some time reviewing the Dane County ordinances and the city of Madison ordinances . .. . then reconsider owning rental property in these areas : )

All kidding aside, there is not one correct way to deny a rental applicant.  All landlords handle this situation differently.  A  landlord may even deny one applicant one way and another in a completely different way, depending on the specific facts of the situation.  Each of my landlord clients handles the rejection of a rental applicant differently.  For instance, some landlords choose to tell the applicant why they were denied while others refuse to do so.  Both ways are legally acceptable (except in Dane County and City of Madison)

I would encourage any landlord that does want to provide a reason for the denial to the applicant, to insure that the reason they are denying the applicant complies with the landlord’s written screening criteria, that the screening criteria used does not run afoul of any fair housing laws, and that the reason for the denial is not discriminatory.  If you are not sure that your screening criteria is legally valid — or you have never heard of the term screening criteria before now — than you should probably avoid giving a reason for the denial.

I know of several landlords who require the applicant to put their request to receive a reason for their denial in writing.  If they receive the written request, then the landlord will provide a written explanation.  Oftentimes the applicant will not take the time to make the written request and the landlord has avoided the need to provide the explanation.

There is one specific context in which all landlords MUST provide an applicant with a written document — not a written explanation for why they were denied — but a written document referred to as an “adverse action letter.”

If a landlord rejects a rental applicant because of something learned from the applicant’s credit report, the federal Fair Credit Reporting Act requires that the landlord send the applicant an “adverse action notice” advising them that they have been denied rental in part due to information obtained from their credit report.

An adverse action notice must include the following information:

1.  The name, address, and telephone number of the credit reporting agency that supplied the credit report.

2.   A statement that the credit reporting agency that supplied the report did not influence the landlord’s decision to reject the application.

3.   Advise the rejected applicant of his/her right to dispute the correctness or completeness of the information from the credit reporting agency and the applicant’s right to obtain a free copy of their credit report from the agency within 60 days, if requested.

So, actually an adverse action notice does not require a landlord to state the reason that a rental applicant was denied, but it does tell the rejected applicant that the decision to deny their application was, at least in part, based upon something learned from the applicant’s credit report.

Personally, I provide any applicant that I reject with an explanation.  My reasons for doing so are threefold:

1.   If I was being rejected for housing I would like to know why so I could see if the reason is something that could be corrected in the future.  This is NOT a legal reason for providing the applicant with an explanation but rather a personal one —  a variation on the concept of treating others as you would like to be treated.

2.   I believe that if I provide a rental applicant with the truthful (and legally valid) explanation as to why I will not be renting to them, they will be less inclined to incorrectly assume that I denied them based on discriminatory factors.

3.  I’m well-versed in fair housing law and am confident that the basis for my decision to deny a rental applicant is not in violation of federal or state fair housing laws and that my decision can be legally supported.

As mentioned previously, if you do not know if your reason for denial is legally justifiable, then you need to be cautious in what you tell an applicant.  You certainly don’t want to end up providing the applicant with the only evidence that they need to file — and win — a fair housing claim.  If you find yourself in such a situation, I would recommend that you seek legal advice before you make the decision to deny the rental applicant.

Whether you have decided to provide an applicant with an explanation as to why they were denied rental or not, all landlords and property managers should memorialize the reason that they rejected the applicant in writing.  If you are utilizing written screening criteria — which I hope everyone is — then a copy of the criteria is the perfect place to record the reason for denial.  Simply circle the specific criteria that the applicant failed to meet.  You should also attach any supporting documentation — such as a copy of the applicant’s credit report, CCAP printout showing a prior eviction, or notes from your conversation with the applicant’s current or past landlord where s/he told you the applicant was always late with paying the rent etc. etc.  Finally, be sure and notate when you made the decision to deny the applicant and when that was communicated to the applicant.  You should retain this paperwork for at least three years as this is the statute of limitations for the majority of most fair housing claims.

Rejecting a rental applicant can be an uncomfortable situation and even an anxious one if you are not educated about written screening criteria and when you can legally reject an applicant.  If you would like to learn more about these topics you should consider attending the AASEW’s Landlord Boot Camp which will focus on these topics more in depth.

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Landlords Should Periodically Inspect Their Rental Property . . . or Risk $98,465 In Damage

Last night I read an article about a Virginia landlord that had $98,465 in damage to one of his rental units.  Apparently his tenant was a compulsive hoarder and every room in the home was full from floor to ceiling with trash, soiled clothing, old newspaper, rotten food, and other deberis and excrement.  It cost the landlord over $98,000 to get the unit back into rentable condition.  The landlord’s insurance company refused to pay for the damages claiming that damage from compulsive hoarding was not covered under the dwelling policy.

After finishing the article I thought to myself that the landlord really was partly to blame for allowing the situation to get so out of control.  The landlord should have conducted periodic inspections of the interior of his rental property.  If he had done so, most likely, the landlord would have noticed the accumulation of “stuff” months or even years earlier and could have addressed the issue with the tenant before too much damage occurred.

It is good practice for landlords to periodically inspect the interior of their rental units and Wisconsin law allows for these periodic inspections as long as certain requirements are followed.

Background:

The covenant of quiet use and enjoyment is implied in all rental agreements.  This covenent simply means that the landlord guarantees that the tenant may take possession of the rental unit and that the tenant has the right to privacy and exclusive use of and possession of the property and that the landlord will not interfere with that.

The Law:

In Wisconsin there are limited exceptions to the covenant of quiet use and enjoyment.  One of those exceptions is a landlord’s limited right of entry to a tenant’s rental unit.  Specifically, Wisconsin Administrative Code, ATCP 134.09 (2) and sec. 704.05(2) of the Wisconsin Statutes allows a landlord the ability to enter a tenant’s rental unit for the following:

1.   To inspect the premises

2.   To make repairs

3.   To show the property to a prospective tenant or purchasor

ATCP 134.09(2)(c) allows a landlord to enter a tenant’s rental under circumstances other than the three listed above, as long as those circumstances are set forth in a Nonstandard Rental Provisions document (which must be a separate document from the Rental Agreement) that is signed and/or initialed by the tenant.  So if a landlord always conducts inspections of his/her rental units on the first day of spring and fall, or some other date certain that is known in advance, it might be a good idea to list that information in the NSRP.

Wisconsin also requires other conditions to be met prior to allowing a landlord to enter a tenant’s rental unit.  Those requirements include:

-  The giving of advance notice to the tenant (in most situations)

ATCP 134.09(2) requires at least 12 hours advance notice, however some municipalities – such as Madison — have longer notice requirements, so you will need to check the municipal code where your rental is located. 

I reccomend that my clients give this notice in writing to the tenant and slip it under the door of the rental unit (or if time permits mail it to them).  A landlord should keep a copy of this notice for his/her own files in case a dispute should arise as to whether or not the notice was given.  Wisconsin Legal Blank Company, Inc. has a pre-printed form that they sell entitled “12 Hour Notice” that I drafted for this type of situation.

-  Entry must be at reasonable times

I hope it goes without saying that 2 a.m. in the morning is not a “reasonable” time to enter your tenat’s apartment.  While “reasonable times” is not defined in case law, statutes or administrative provisions,  it would be safe to say that entry during normal business hours would most likely be acceptable. 

-  The landlord may not remain in the unit beyond the reasonable amount of time that it takes to inspect the unit, make repairs, or show the unit to a prospective renter or purchasor.

The purpose of entry should be for a specific reason.  Get in.  Do what you need to do.  Get out.

-  A Landlord must announce his or her presence to any person who may be present in the unit and identify himself/herself.

I usually reccomend ringing the doorbell and knocking on the door several times before entering and then announcing loudly that it is “the landlord” and that “I’m here to conduct my bi-annual inspection” or “I’m here to repair your refrigerator” or whatever the reason for my entry might be.  The last thing a landlord wants to do is open the door to his/her tenant’s apartment and find a half-clothed tenant laying on the couch.

The need for providing advance notice and entering at a reasonable time may be disregarded, according to Wisconsin law, if one of the following applies:

1.  A tenant who is aware of the planned time that the landlord intends to enter the unit, requests or consents in advance, to the entry by the landlord

An example of this would be when you tell your tenant that you will be entering his/her unit to change the batteries in the smoke detector on Friday at 3 pm and the tenant tells you to go ahead and enter the night before if you can, as they will be having guests over on Friday at 3 pm.

2.   A health or safety emergency exists

This exception includes many situations, such as if a tenant falls and is injured in their unit and requires emergency aid, when a tree limb falls through the roof, when an infestation of rodents or bedbugs are discovered, during or after a grease fire, etc. etc.

3.  The tenant is absent from the rental unit and the landlord reasonably believes that entry is needed in order to protect the property from damage

This could include situations where a tenant left the water running causing the tub to overflow which is now damaging the bathroom floor and ceiling of the tenant who lived in the unit below.

The Penalties:

Because the above information is contained in ATCP 134, if a landlord violates any of the above provisions, a landlord may be subject to paying the tenant double his/her damages and the tenant’s actual attorney’s fees.  I am also aware of situations where a tenant has claimed that a landlord entered the rental unit without advance notice and stole the tenant’s personal property — this has resulted in the police being called, trespass citations being issued (not properly in my opinion but they were nonetheless issued) and on one occassion a physical altercation between landlord and tenant which resulted in a temporary restraining order being filed and lengthy litigation.

Tenant’s often mistakenly believe that a landlord cannot enter their unit unless they are present.  A tenant’s presence is not required under the Wisconsin Statutes or ATCP 134.  A landlord is allowed to enter a tenant’s rental unit in the tenant’s absence if the above provisions are otherwise followed (and assuming there is no contrary provision in any applicable municipal code).

What should a landlord do if a tenant denies the landlord entry to the apartment?  This happens more frequently then one would think and I am amazed when landlords call me and ask me if they should force their way into the unit.  Technically, a landlord has the right to enter the unit since a tenant is not allowed to deny entry to a landlord who has complied with the proper notice provisions — but step back and take a deep breath — just because you can legally enter does not mean that you should enter.  Why risk a possible altercation?  Who knows what state of mind (or intoxication) an tenant may be in?  Why risk possible injury?  Why risk the police becoming involved.  Wait a couple of days until tempers have subsided and then explain to the tenant why you need to enter the unit and that legally you have a right to do so.  If the tenant still denies you entry, and there is a valid reason for you to enter the unit, then you may want to consider contacting the local police to see if they would be willing to accompany you during the visit.  You should also consider alternate remedies, like eviction. 

While it is important to remember that a tenant has the right to privacy and sole possession of the rental unit, that does not mean that a landlord should ignore his/her investment.  A landlord should conduct regular and periodic inspections of all rental properties.  I personally inspect my rentals twice per year.  I conduct one inspection in early January when I am making my annual change of the batteries in the smoke detector and carbon monoxide detector.  I conduct my second inspection about 6 months thereafter during the month of June.

Had the Virginia landlord referenced in the article I mentioned earlier conducted periodic inspections of his tenant’s rental unit, he would have discovered his tenant’s hoarding problem and possibly been able to prevent $98,000 in damages that resulted.  Don’t end up in the same or similar situation — make sure that you make periodic inspections of your rental properties.

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AASEW Landlord Tradeshow – This Wednesday – Sept. 22nd

Annual Landlord Tradeshow!  
 
Bring 2 non perishable food items that we will donate to the Hunger Task Force for free admission, free seminars, free entrance to the exhibit hall, a chance to win some great raffle prizes and free appetizers 
 
September 22nd, 2010
Serb Hall, 5101 W. Oklahoma Avenue, Milwaukee
 
Seminars 12:00 p.m.-6:00 p.m. (doors will open at 11:40 p.m. for first seminar)
Exhibit hall open from 12:00 p.m. until 5:00 p.m.
  
Be sure to visit our exhibit hall to talk with vendors that offer products and services for the rental property industry and graciously support our tradeshow!
 
 

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

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

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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