Posts Tagged Landlord

SECURITY DEPOSIT TRANSMITTAL LETTERS: How To Draft A Legal 21-Day Letter

Mar 4

Posted by Tristan R. Pettit, Esq. in ATCP 134, Security Deposit | 3 Comments

Security deposit withholding issues are the second most litigated area in landlord tenant law after evictions.  If a landlord makes improper deduction from a tenant’s security deposit, pursuant to ATCP 134 and §100.20, Wis. Stats., the tenant may sue the landlord for double damages and attorney’s fees.  There are numerous published Court of Appeals decisions in Wisconsin dealing with this exact issue.  I would like to offer a few suggestions to landlords which will hopefully keep you from making any improper security deposit deductions.

 

First, we need to address some basics . . .

A security deposit is defined as “any payment that is given to a landlord as security for the performance of the tenants obligations under the rental agreement.” ATCP 134.01(11).

ATCP 134.06(2), states that “within 21 days after a tenant surrenders the rental property, the landlord shall deliver or mail to the tenant the full amount of any security deposit held by the landlord, less any amounts properly withheld by the landlord.”

If you would like to know what a landlord may legally deduct from a tenant’s security deposit you will want to read my Jan. 17th post.

ATCP 134.06(4), states “If any portion of a security deposit is withheld by the landlord, the landlord shall, within the time period and manner prescribed in sub.(2) – 21 days — deliver or mail to the tenant a written statement accounting for all amounts withheld.  The statement shall describe each item of physical damages or other claim made against the security deposit, and the amount withheld as reasonable compensation for each item or claim.”

I will refer to this written statement interchangeably as either the “security deposit transmittal letter” or the “21-day letter.”

According to ATCP 134 all prepaid rent in excess of one month is legally considered to be a security deposit.  So if you require a new tenant to pay first and last months rent plus a security deposit, legally the security deposit will also include the last month’s rent

Essentially a landlord must either return a tenant’s security deposit or send the tenant an itemization of how the tenant’s security deposit was applied within 21 days after the tenant surrenders the premises.  This is mandatory.  No matter what the situation – even if you are legally entitled to keep all of the tenant’s security deposit – you must still send the tenant a letter explaining to them why you can legally keep it and how it was applied.  There is no situation in which you should not be sending the 21-day letter to a vacating residential tenant in Wisconsin.  Even if common sense tells you it is not necessary (i.e. the tenant told me to use his/her security deposit to pay for the last month’s rent) you should still send out the letter.  If you are wrong the ramification may be expensive.  Be safe – send the letter each and every time. Read the rest of this entry »

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LANDLORD BOOT CAMP: Only 4 Open Seats Remain

Feb 16

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

UPDATE 2/17/10 – WE ARE AT FULL CAPACITY FOR LANDLORD BOOT CAMP ON 2/27/10.  If you are interested in attending please contact Paulette at (414) 276-7378 or paulette@apartmentassoc.org and she will put your name on a “waiting list” and contact you should a seat become available.
 
Thank You
 
T
 
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We had a great AASEW monthly membership meeting last night — close to 90 people.  That was the largest crowd that I have seen at a meeting in my many years as a member.  Many of the attendees at the meeting also signed up for the AASEW’s Landlord Bootcamp that I will be teaching in about 10 days.  If you are interested in attending I would encourage you to do so immediately as I am told that there are only 4 seats left.  Looks like we will have a full house!
 
Below is my earlier blog post about the Boot Camp and the topics that I will address on Feb. 27th:
 
 
I will be presenting an all-day seminar on residential landlord tenant law in Wisconsin for the Apartment Association of Southeastern Wisconsin, Inc. (AASEW).  The seminar is entitled “Landlord Boot Camp” and will take place on Saturday, February 27, 2010 from approx. 8:30 am – 5 pm at the Clarion Hotel located at 5311 S. Howell Avenue in Milwaukee.
 
The cost will be $159 for AASEW members and $259 for non-members.  You will receive a 100 page plus manual.  I have given a similar seminar to lawyers, landlords, and property managers over 25 times during the past few years and the organizations that have sponsored these seminars typically charge between $300-$400.  This is your opportunity to learn all of the same information at a much discounted price.
 
I will cover pretty much anything and everything that you need to know about residential Landlord Tenant law in Wisconsin, including:
 
1.   How to properly screen prospective tenants
 
2.   How to draft written screening criteria to assist you in the selection process
 
3.   How to comply with both federal and state Fair Housing laws including how to comply with “reasonable modifications”  and “reasonable accomodations” requests
 
4.   How to legally reject an applicant
 
5.   What rental documents you should be using and why
 
6.   When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant
 
7.   Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134
 
8.   When you are legally allowed to enter your tenant’s apartment
 
9.   How to properly draft an eviction summons and complaint
 
10.   What to do to keep the commissioner from dismissing your eviction suit
 
11.   What you can legally deduct from a security deposit
 
12.   How to properly draft a security deposit transmittal / 21 day letter
 
13.   How to handle pet damage
 
14.   What to do with a tenant’s abandoned property and how this may affect whether or not you file an eviction suit
 
15.   How to pursue your ex-tenant for damages to your rental property and past due rent (and whether it is even worth it to do so)
 
. . .  and much more.
 
Hope to see you there. 
 
Call Paulette at (414) 276-7378 or email her at paulette@apartmentassoc.org to reserve your seat.

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Wisc. Legal Blank Co.’s New & Improved Residential Rental Agreement Is Now Available.

Feb 7

Posted by Tristan R. Pettit, Esq. in Landlording, Rental Agreements, Rental Documents | No Comments

I wanted to alert anyone that is currently using the Residential Rental Agreement that is sold at Wisconsin Legal Blank Co, Inc. (and even those of you who don’t : ) that the new and improved version is now available ans is being sold at WLB.

I completed the revisions to the updated Agreement last week.  The new version indicates a revision date of 1/4/10 whereas the prior version had a revision date of 1/31/07.

Some of the changes include:

1.   I retitled the document “Residential Rental Agreement” — believe it or not I have seen this document improperly used for commercial properties (Note: I will be drafting a form Commercial Lease in the ensuing months for WLB).

2.   I attempted (and think that I succeeded) in removing all legalese from the Agreement in order to make it more understandable for everyone.  So you no longer need to read “heretofore” “therein” “hereof” and wonder to yourself “what the heck does that mean?”

3.   I eliminated some of the “fill in the blank” sections that were causing confusion for some landlords and property managers.  The eliminated sections were not really necessary anyways – so they’re outta there.

4.   I retitled the “Guarantee” section to “Co-Signer / Guarantor” is an attempt to make it more clear that landlords/managers do not need to have the resident/tenant sign this section.  This section need only be signed by individuals (other than the tenant) that are guaranteeing that the tenant will meet all of the conditions in  the Agreement.  For example:  a parent would sign as a co-signer/gurantor for a student tenant that is not employed and/or does not have sufficient credit.

5.  I added a sentence that states that if the Landlord provides the Tenant with an Inspection Checklist (a.k.a. “Check-In/Check-Out” form) and the Tenant fails to return it to the Landlord within seven days after the start of the tenancy, that the Tenant will be considered to have accepted the Premises without any exceptions.”

6.   I deleted the fill in the blank lines relating to “Special Provisions” relating to pets.  The purpose for doing this is to alert landlords that there is a separate docuement entitled “Pet Agreement” that they should be using if they are allowing tenants to keep pets  — rather then trying to cram all of that info into 2 lines on the Rental Agreement.”  By being forced — “forced” may be too strong of a word — to use the Pet Agreement a landlord will also notice (on the Pet Agreement form) that s/he may charge the tenant a refundable pet fee and/or a non-refundable pet fee and it will also make the landlord clearly define the specific pet that is being allowed to reside at the Premises.

7.   I clarified the section that dealt with the type of notice that a tenant must provide the Landlord prior to vacting.  The goal was to make this notice process more understandable for the tenant (and therefore less of a headache for landlords).  This revised section will also serve as a default provision should the landlord fail to include another (i.e. longer) notice provision for the tenant.  The section includes both a notice provision for month to month tenants and tenants that are under a lease for term.

8.   I added a section regarding abandoned personal property.  The section states that any personal property that is left at the Premises after the Tenant has vacated will be considered to have no value and to have been abandoned by the Tenant and therefore it may be disposed of by the Landlord, unless the Tenant notifies the Landlord otherwise – in writing – prior to vacating.

9.    I added a new provision regarding a tenant’s responsibility for maintaining and paying for utilities through the end of theiir tenancy or until the last day that the tenant is responsible for paying rent.

10.   I included a new section that defines late fees, security deposits, utility charges and any other penalty or fee set forth in the Agreement as “rent” – much like is done in commercial leases.

11.   I added a provision stating tha the landlord/manager represents that there are no code violations or other conditions affecting the habitability of the Premises unless indicated otherwise in writing.

12.   I added a new section that clarifies who will be responsible for any extermination costs of the Tenant’s unit and under what circumstances.

13.   I included a provision recommending that all Tenants purchase renter’s insurance and explaining why this is reccomended.

14.   I removed the Consent to Assignment or Sub-Lease section.  I removed this section to reinforce the fact that landlords of residential rental properties would be better protected by entering into a new Rental Agreement (and other rental documents) with a new individual that moves into the Premises after a prior tenant was evicted or vacated the unit, rather then to just assigning or sub-leasing the Premises and continuing to use the old tenant’s rental documents.  While this will result in more paperwork for the landlord, the protections that it will provide more than outweigh the additional paper.  A Landlord in this situation should have the new tenant sign all new rental documents especially a new Lead-Based Paint Disclosure statement (and provide the new tenant with a new EPA pamphlet) and have the new tenant sign and/or initial a new Nonstandard Rental Provisions document rather then just relying on the old documents that the prior tenant signed.  Trust me, if you end up in a court battle (i.e. eviction lawsuit or defending a claim that you violated ATCP 134) or facing the wrath of the EPA, you will be thankful that you used the extra paper.

15.   Finally, I cleaned up all of the mispellings, improper grammar, and other typos  — at least I think I did.

I would reccomend that you toss out any old versions of the Rental Agreement that you may have in your possession and the next time that you renew or rent out a rental unit that you use this new and improved Residential Rental Agreement form.

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