Posts Tagged Landlords

5 Things This Landlords’ Attorney Wants For Christmas

Dec 20

Posted by Tristan R. Pettit, Esq. in AASEW, Fair Housing / Discrimination, Legislation, Milwaukee County, Miscellaneous, Reasonable Accomodations, Small Claims Court | 2 Comments

With the coming of the holidays, comes list of gifts that people want for Christmas.  So I thought I would put together one of my own.  So here is a list of the top 5 things that this landlords’ lawyer would like for Christmas.

 

5.   That Tenants’ Requests For Reasonable Accommodations To Allow for the Keeping of  Companion/Comfort Animals Would Actually Be “Reasonable”

The past few years — and especially this past year — have seen a large rise in requests by tenants for a reasonable accommodation to landlords’ “no pet” or “limited pet” policies specifically to allow for the keeping of a companion/comfort animal.  A companion/comfort animal does not need to be specially trained and therefore can be any type of animal including the family dog, cat, gunea pig, or even a miniature horse.  A tenant can ask for a reasonable accommodation — and it should be provided — as long as the tenant has a disability (i.e. an individual with a physical or mental impairment that substantially limits one or more major life activities) and the accommodation request has a “nexus” to the tenant’s disability and will allow them to more fully enjoy a major life activity.

However, somewhere along the line tenants seem to have forgotten about the word “reasonable” in “reasonable accommodations.”

It is not reasonable in my opinion to need 5 kittens as companion animals (which were recently born to a landlord-approved pet cat) just because the tenant thinks the kittens are cute and does not want to get rid of the litter.

It is not reasonable in my opinion for a tenant to request a pit bull dog as a reasonable accommodation just because the tenant’s relative recently lost their home to foreclosure and can’t find a place for their pet “pitty” to live.

It is not reasonable to have to allow a miniature horse as a companion animal because the tenant does not want to have a dog instead because dogs do not live as long as horses do,  and if the dog should die it would exacerbate the tenant’s mental health issues.  Whereas the miniature horse will outlive the tenant so her mental health will be unaffected.  Who cares what happens to the miniature horse after the tenant passes.

 

4.   That Tenants Who File Bankruptcy Be Required To Disclose To The Bankruptcy Court That They Are Renters and that the Bankruptcy Court Create A More Efficient Process For The Tenant To “Pay and Stay” or Vacate

If a tenant files for bankruptcy something called the “automatic stay” kicks in that prevents any creditors (yes, that includes landlords) from attempting to collect a debt or in the case of landlords – evict a tenant.  Now, tenant/debtors are supposed to disclose in their bankruptcy schedules that they file with the court whether or not they have any “executory contracts or unexpired leases.”  Without fail, tenants and there bankruptcy attorneys always check the box saying that they have no executory contracts or unexpired leases.  I have handled at least 30 of these situations for my landlord clients and not once has the tenant advised the court that they were under an unexpired lease.

A landlord is then required to pay a filing fee, file a motion to lift the automatic stay, wait 14 days for the tenant to object, and if so participate in a hearing before the court, to present evidence that the tenant isn’t paying their rent and the landlord should be allowed to proceed to evict the tenant.  This process can be expensive and time consuming for a landlord whose hands are legally bound from doing anything until the bankruptcy court says he can.

It would be nice if the court or the bankruptcy trustee would confirm whether or not the debtor is a tenant and whether or not they are up to date with rent and if not, determine if the tenant can get caught up so s/he can stay, or advise the tenant/debtor that they must vacate the landlord’s property.

To require a landlord jump through all of these hoops in order to remove a non-paying tenant from his rental property is just another financial drain on landlords.  A landlord will spend at least one month (if not more) trying to lift the stay in bankruptcy court.  Once that is completed, he then needs to serve the tenant with the appropriate notice, and after that time has elapsed, pay more money to file the eviction, and then wait another 2 weeks or so until the initial appearance in eviction court.  As you can see, this process can  delay things at least 2 months.  So I would like to expedite this somehow.  Wishful thinking I know . . .  but hey, this is my wish list : )

 

3.   That Tenants Stop Using Jury Trial Demands To “Buy” More Time In Evictions

In my 17+ years of law practice I have probably encountered somewhere between 10-15 requests for a jury trial by a tenant that I am evicting.  Not one of those cases have ever resulted in an actual jury being selected.  Instead the demand is often made just because it will prolong the case.  In Milwaukee County when a jury trial demand is made, the case is tabbed to a large claims judge who often has a very busy caseload and is unable to even get the case into court for a Scheduling Conference for 2 months.  Oftentimes, a trial isn’t scheduled for months after the Scheduling Conference.  On the other hand if a jury trial is not made, the small claims judge in Milwaukee County can hear the eviction within a week in most cases.

I have had jury trial demands filed in failure to pay rent cases where the tenant has no legal defense.  Tenant didn’t pay rent, notice was properly served, tenant didn’t pay past due rent within cure period, and an eviction lawsuit was field.  Tenant doesn’t deny any of it but wants a jury trial.  Now my client gets to sit for months with a non-paying tenant before obtaining a judgement of eviction.  And no, landlords rarely ever see those rent amounts from the tenant even if they obtain a money judgment against them later because many tenants are not collectible.

I have had jury trial demands filed in cases where the tenant is being evicted for engaging in criminal activity that is scaring (and at times injuring) fellow tenants and neighbors.  Yet, with the jury demand having been made, the landlord, along with the law-abiding tenants and neighbors, have to deal with the scofflaw tenant for months, unless they by chance would get arrested.

The law needs to be changed in this regard.  While jury trials are an important part of the judicial system this practice that I am seeing more and more of is clearly an abuse of the system.  Perhaps requiring that all jury trials must be held within so many days of the initial appearance or in failure to pay rent cases requiring that all past due rent must be paid up and future rent continue to be paid or the tenant loses his/her right to the jury trial.  Something needs to happen to stop this frivolous practice.

 

2.   That All Courts Follow the Law with Regard To Granting “Stays” in Eviction Actions

Sec. 799.44(3), Wis. Stats., is very clear that before a court is allowed to “stay” a writ that the tenant must pay all rent and other charges due as well as any rent that will become due during the period of the “stay.”  This law is often ignored by the courts to landlords’ detriment.

I understand that it is difficult to tell a tenant that you are ordering them to immediately vacate the rental property even when the cause of their non-payment of rent is due to no fault of their own – such as losing a job due to downsizing or health issues — but that is what the law says.  If it is a bad law (and I am not saying that it is) then it can and should be changed through the legislative process.

Let me put this in another context.  A tenant that has lost their job or that has encountered a serious medical issue may also not have money to buy food for their family, but that doesn’t mean that they are allowed to shoplift food from the grocery store.  If they did that they would be arrested.

So why is a landlord required to provide housing for a tenant who’s tenancy has been properly terminated and after all proper legal channels have been followed?  What makes a landlord so special that s/he gets this special treatment that places them in a different category than any other creditor.  Why is a landlord required to house the non-paying tenant to the landlord’s financial detriment and risk their ability to continue to provide housing for their paying tenants.  Again, for those non-landlords that may be reading this post, most tenants are not collectible, so saying that the landlord will be made whole when they obtain a money judgment against the tenant is not realistic.

 

1.   That All Landlords Join a Landlord Association (such as the Apartment Association of Southeastern Wisconsin – AASEW) 

There are more private landlords in Wisconsin than there are teachers but landlords’ voices are not anywhere near as powerful as are teachers.  The reason for this is that landlords are not organized.  Landlords tend to be an independent type that enjoy being their own bosses.  That is well and good but landlords need to set that independent spirit aside on occasion for the betterment of themselves and all landlords.  Only when landlords unit can positive change occur for them as there is strength in numbers.  It is very difficult to survive financially as a landlord these days.  But by joining a landlord association,  a landlord’s life can become a little easier.  First, through landlord associations, landlords can create a united voice to challenge bad legislation or champion new legislation.  Secondly, landlord associations provide educational opportunities for their members on changes in the law so landlords can stay out of legal trouble.  Third, there is camaraderie in joining a landlord association which allows members to rub elbows with other landlords may be facing, or have previously faced, the same struggles that you are having.

If all landlords joined a landlord association and became active in them, we have the money and the numbers to create change that would assist our industry.

____

Oh by the way Santa – if you cant give me any of my wishes on this list, I will settle for a new toy bike with red and white streamers dangling from the handlebars : )

Happy Holidays everyone!

 

 

 

Tags: , , , ,

CCAP Committee’s Recomendation To Change Wisconsin’s Expungment Laws Shot Down

Feb 14

Posted by Tristan R. Pettit, Esq. in CCAP, Legislation, Screening Tenants | 5 Comments

Last year Wisconsin’s Joint Legislative Council created a Special Committee On The Review of Records Access of Circuit Court Documents – what I affectionately referred
to as the CCAP Committee.  Landlords were very fortunate that in the end the committee made no recommendations to change or alter information on CCAP or limit its access by landlords or any other group.  The committee’s sole recommendation was to call for the liberalization of Wisconsin’s criminal expungement statute.

The proposed bill, if passed would have done the following:

1.  Defined what is meant for a court to expunge a court record (and yes, this did include removing any reference to the conviction from CCAP)

2.  Clarified that an expunged record may not be considered for employment or housing matters.

3.  Stated that a person may petition the circuit court at any time to expunge the following:

-  any court record of a person who was under the age of 25 at the time the crime was committed and who was found guilty of a forfeiture, misdemeanor, and certain (lessor) felonies, that are punishable by up to 6 years in prison.

- any court record of a person charged with an offense punishable by a forfeiture, misdemeanor, or felony in which all charges were dismissed or for which the defendant was acquitted AND the court determines that the person will benefit by the expungement and that society will not be harmed by the expungement.

So as you can see, the proposed bill would have negatively affected landlords in the screening process and if passed would mean that a landlord would find no record of the applicant having ever been charged and convicted of crime x, y or z (or charged and acquitted or charged and the later dismissal of the case), if the applicant had applied for and received an expungement.

It also would have meant that even if the landlord somehow learned of the conviction (or acquittal or dismissal) and the later expungement, that the landlord could not use that information when making a decision on whether or not to rent to that individual.

Furthermore, it would have meant that a landlord would be precluded from inquiring as to the existence of any expunged record from a rental applicant whether that question
be on the rental application itself or verbally when talking to the applicant.

Thankfully we do not have to worry about this proposed bill being passed as it never even got introduced.  In a notice dated January 20, 2012, the Director of the committee wrote to the members of the committee to inform them that their recommended bill was not approved for introduction by the Joint Legislative Council by a vote of 13 to 6.  While a petition can be circulated to have the matter reconsidered, I have not heard of that happening.

Tags: , , , , ,

Landlords & Wisconsin’s New CCW Law

Jan 30

Posted by Tristan R. Pettit, Esq. in CCW, Landlord Liability | 1 Comment

As I’m sure many of you are aware, Wisconsin has a new Carrying Concealed Weapon (CCW) law.  Wisconsin Act 35 was signed into law on July 8, 2011 and took effect on November 1, 2011.

Since the new law was published, I have received several calls from landlords and property management companies asking me how this new law will affect them.  Since the question has come up repeatedly I thought I would do a post on it.

If you have any questions about the CCW law generally the best resource I can direct you is a document that was published by the Wisconsin Department of Justice in August 1, 2011 entitled “Wisconsin’s New Carrying Concealed Weapon Law: Questions and Answers“   If you are interested in learning how the new law applies to employers generally (not just landlords) you should read Petrie & Stocking’s Talking Workplace Law Blog posts on the subject here and here.

The Basics:

1.   The law allows individuals to carry a concealed weapon upon their person in most locations as long as they have applied for and received a permit to do so.

2.  The types of weapon that can be carried include: handguns, an electric weapon as defined in Wis. Stat. § 941.295(1c)(a), a billy club, and a knife other than a switchblade.  See Wis. Stats. § 175.60(1)(j). A handgun does NOT include a machine gun, short barreled rifle or short barreled shotgun.  See Wis. Stat. § 175.60(1)(bm)

2.   The law provides immunity to owners of property who do not prohibit the carrying of concealed weapons on their property.  So if you allow concealed carry on your property by others you will not be held liable for any consequences arising from that decision.  Wis. Stat. § 175.60(21)(b).

3.   The law also permits owners to prohibit persons from carrying concealed weapons on their property.

4.   Prohibiting concealed carry on your property strips you of the immunity mentioned above.

5.   If you wish to prohibit concealed carry on your property you must post signs that are (a) at least 5 inches by 7 inches, (b) state that concealed weapons are not allowed in the building or on the premises, (c) specify the area where the prohibition applies if the prohibition only applies to a portion of the property, (d) place the signs on or near all entrances to the building.

So How Does The New Law Affect Landlords?:

An owner of rental property must decide whether or not they wish to prohibit the carrying of concealed weapons in their rental property and on the property grounds.  Second, if they do wish to prohibit concealed carry they must determine if the prohibition will apply to the entire building or just certain portions of the building.  Third, they must post the required signage.

If you prohibit concealed carry in your rental property, and proper notice has been posted, then it is against the law for anyone to enter, or remain in the common areas of the building or on the grounds of the building after being asked to leave, while carrying a concealed weapon.

IT IS IMPORTANT TO NOTE that Wisconsin’s new CCW law does not address a tenant’s right to keep a weapon in his/her rental unit.  The CCW law only deals with carrying a concealed weapon in public places such as the common areas of the apartment building.  So even if the landlord posts signs preventing concealed carry in the apartment building, that does not prevent a tenant from keeping a weapon in his/her unit.  A tenant has the right to keep a weapon in his/her rental unit just the same as a homeowner has the right to keep a weapon in his/her single family home.  So if a landlord does not want a tenant to be able to keep a weapon in their rental unit than such language must be included in the tenant’s rental agreement.

Also, even if a landlord prohibits concealed carry in the rental property, that prohibition does not apply to the apartment’s parking lots.  A tenant is  allowed to keep a weapon in his/her vehicle if parked in the apartment complex’s parking lot.

Many Unanswered Questions:

Wisconsin’s new CCW law leaves many questions unanswered.

One question that immediately came to my mind is what will happen in those situations in which a landlord prohibits concealed carry in the apartment complex but has failed to include a lease provision prohibiting a tenant from keeping a weapon in the tenant’s rental unit?  The tenant has a right to keep a gun in his rental unit but how can he get the gun to and from his unit without violating the CCW prohibition since, depending on the layout of the apartment complex, the tenant will have to walk through a common area such as a hallway or lobby?  Which “right” trumps in this situation?

Taking a more broad perspective of the law, there are even more important questions that remain unanswered, such as:

-   How broad will the immunity provided under the new law extend?

-  If a landlord decides to prohibit concealed carry in his rental property is he opening himself up to increased liability exposure?

-  If a landlord prohibits concealed carry in his rental properties, does s/he now have a broader duty to protect his tenants or their visitors from someone that may enter the rental property with a weapon and ignores the CCW prohibitied posting?  Does the landlord have an obligation to actively attempt to enforce his no CCW policy?  If so, how should he enforce it?  Does he have to post an employee at every entrance to ask people who enter if they are “packing heat”?  Does he have to frisk people upon entering the apartment building?  If a tenant is injured by another person who ignores the CCW prohibited sign will the landlord be liable to the tenant?

We will not learn the answers to these questions until the DOJ provides additional guidance or until lawsuits are filed, trial court and juries make decisions, and appellate courts either affirm the trial court’s decision or not.

For additional factual scenarios and unanswered questions raised by Wisconsin’s new CCW law I reccomend a magazine article entitled “Concealed Weapons Questions and Answers” written by Attorney Josh Johanningmeier published in the Wisconsin Independant Agent magazine.

 

Tags: , ,

Governor Walker Signs 2 Pro-Landlord Bills Into Law

Dec 9

Posted by Tristan R. Pettit, Esq. in Attorney's Fees, Legislation | No Comments

Just wanted to let everone know that in the last few days Governor Walker has signed into law two bills that will positively affect landlords.

-  On December 7th, Governor Walker signed SB 107 (2011 Wisconsin Act 108) which relates to prohibiting municipalities from creating ordinances that put limits on landlords.  If you would like more detail on this law please see my prior blog post on the topic.  Here is a link to the legislative history of the bill.

- On December 7th Governor Walker also signed into law SB 12 (2011 Wisconsin Act 92) which creates a presumption that a tenant’s attorney’s fees should be capped at 3 times the amount of damages at issue when a tenant sues a landlord for an alleged violation of ATCP 134.  If you would like more information on this see my prior blog post.  Here is a link to the legislative history of the bill.

 

Tags: ,

New Case Further Solidifies That A Landlord Is Not Liable For Injuries Caused By A Tenant’s Dog

Jun 27

Posted by Tristan R. Pettit, Esq. in Dog Bites, Landlord Liability | No Comments

A recent Wisconsin Court of Appeals decision has been recommended for publication that will assist landlords in defending against any claims filed by a third party that was bitten by a tenant’s dog.

The case of Ladewig v. Tremmel, (2010AP1925) involved a claim for negligence against two landlords by a neighborhood boy that was bitten by the landlords’ tenant’s pit bull.

The Court of Appeals was reviewing the trial court decision to dismiss the plaintiffs’ claims against the landlords on a motion for summary judgment.  A motion for summary judgment is filed when a party believes that the court is able to make a decision as a matter of law (without the need for a trial) because no material facts are in dispute by the parties, so the court must merely apply the law to the undisputed facts.

The general liability rule in Wisconsin, is based on public policy grounds, and states that a landlord is not liable for injuries caused by a tenant’s dog, unless the landlord is an owner or a keeper of that dog.  This general rule was established in the seminal case of Smaxwell v. Bayard, 2004 WI 101, 274 Wis.2d 278, 682 N.W.2d 923.

The plaintiff in this case argued that the general liability rule should not apply to these landlords because these landlords voluntarily assumed a duty to his client, because their lease included a provision which prohibited a tenant from keeping “vicious” dogs on the leased property.

Plaintiffs argued that the landlords in this case assumed a duty which they otherwise did not have, by including a lease provision prohibiting a tenant from keeping any vicious dogs on the premises, and as such they were negligent when they did not enforce this provision against the tenants, thus resulting in the plaintiff’s injuries.

It should be noted that in the case of Malone v. Fons, 217 Wis. 2d 746, 580 N.W.2d 697 (Ct. App. 1998) the Wisconsin Court of Appeals had previously held that a landlord’s alleged knowledge that a tenant was keeping a dog with a history of bad behavior was not sufficient to create liability on the landlord even though the landlord had a “no pets” provision In his lease.

Essentially, the plaintiffs were arguing that this case was an exception to the general rule of non-liability by a landlord set forth in Smaxwell, and since Smaxwell does not apply, the landlords should be found liable for the plaintiff’s injuries.

The Wisconsin Court of Appeals disagreed with the plaintiffs’ argument and said that there was no need to even determine whether or not the landlords assumed a duty of care to the plaintiff which they otherwise did not have, because such a determination was irrelevant under Smaxwell.

It was determined that the holding in Smaxwell applied to the facts in this case as well, and since there was no evidence that the landlords were owners or keepers of the dog that injured the visiting child, that the landlords were not liable, regardless.

The Court explained that the Smaxwell case “explicitly forecloses landlord liability on a broad basis, regardless of a plaintiff’s theory of a landlord’s duty of care, unless the landlord has a role, separate from that of a landlord, which involves exercising control or custody over the dog so as to qualify as an owner or keeper of the dog.”

Here, the Court of Appeals held that there was nothing about the landlords’ alleged non-enforcement of the “no vicious dogs” lease provision that “logically transformed the landlords into ‘owners and keepers’ of the dog.

This is a sound decision and in keeping with prior Wisconsin law.  A landlord will not be held liable for the injuries of a tenant’s dog to a third party, unless the injured party can demonstrate that the landlord “acted in the additional role of owner or keeper of the dog and exercised dominion and control over the dog.”

The Court of Appeals also echoed the Smaxwell decision by adding that recovery against a landlord would not place liability where it belongs, because it is the tenant, not the landlord, who has direct control over the dog and that it is sound policy to ensure that liability is placed upon the person with whom it belongs – the owner of the dog – rather than promoting the practice of seeking out the defendant with the most affluence – which often happens to be the landlord.

 

 

 

Tags: , , ,

The Consequences of A Landlord Violating Wisconsin’s Residential Rental Practices (ATCP 134)

Apr 28

Posted by Admin in ATCP 134 | 3 Comments

The Residential Landlord Tenant relationship is controlled by two main areas of law: (1) Chapter 704 of the Wisconsin Statutes, and (2) the Wisconsin Administrative Code, Chapter ATCP 134 entitled “Residential Rental Practices.”

ATCP 134 sets forth 21 regulations that a landlord must follow in a residential landlord tenant context.   ATCP 134, under its orginal name “Agriculture 134,” was first introduced in May of 1980.  “Ag 134″ was then renamed ATCP (Agriculture, Trade and Consumer Protection) 134 in 1993.  In 1999 there was a complete overhaul of ATCP 134 which resulted in the 21 regulations that we have today.

If you are a landlord and are not familiar with ATCP 134 please take the time to read the chapter — it is only 5 pages long and is relatively easy to understand — it must have been drafted by someone other than a lawyer or government employee  : )

The main remedy available to a tenant that is damaged by a landlord violating ATCP is what is referred to as the “private attorney general” provision.  Essentially, the Wisconsin Statutes allow a party who is injured by a violation of ATCP 134 to “step into the shoes” of the State Attorney General to privately prosecute such violations.

This private attorney general provision, specifically sec. 100.20(5), allows an injured tenant to recover double damages and reimbursement of their actual attorney’s fees against a landlord that has violated ATCP 134.

The State has enumerated several public policy reasons for allowing the private attorney general provision in the residential landlord tenant context, such as:

 1.   It encourages an injured tenant to enforce his/her rights even if the amount of damage is small and the aggrieved tenant does not have the “means” to pay for their own attorney.

2.   A tenant who sues for a violation of ATCP, while clearly enforcing his/her rights, will also be enforcing the public’s rights.

3.   By allowing a tenant the ability to more easily pursue such claims against his/her landlord, it will deter impermissable conduct by landlords and thus strengthen the bargaining power of tenants.

4.   It provides a necessary backup to the State, as the State does not have the time or resources to pursue lawsuits against all landlords who violate the regulations of ATCP 134.

Whatever your thoughts are about the above-reasoning, it is imperative that you become knowledgable about the 21 regulations contained in ATCP 134.  During the course of consulting with landlords and property managers in my job as an attorney, I am always surprised by the number of landlords that have never heard of ATCP 134.

Tags: , , ,

Repeal of Expanded 1099 Requirements Signed Into Law

Apr 18

Posted by Tristan R. Pettit, Esq. in 1099's, Legislation | 7 Comments

President Obama has officially signed H.R. 4, the “Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011” into law.   This new law retroactively repeals  prior 1099 reporting rules for landlords that were added by 2010 legislation (i.e. the Small Business Jobs Act of 2010 and the Patient Protection and Affordable Care Act – better known as Obamacare).

Prior to the 2010 legislation, it was generally required that if you were a landlord that was engaged in the trade or business of landlording, that you were then required to report to the IRS via a 1099 form any payments totalling at least $600 to a single person. Typically, this involved paymetns for services.  It should be noted that there were a number of exemptions from the law’s reporting requirements notably including payments to corporations. 

This essentailly meant that unless you were a full-time landlord, you did not need to comply with the reporting requirements as you were not in the trade or business of landlording.

Then in 201, two pieces of legislation were passed.

Under Obamacare, as of 2012, it was added that payments for goods more than $600 in a 12 month period needed to be reported as well as services. Obamacare further provided that, beginning in 2012, payments to non-tax-exempt corporations—which had previously been exempt from the reporting requirement—would be subject to information reporting.

Additionally, the Small Business Jobs Act of 2010 provided that, subject to limited exceptions, a person receiving rental income from real estate would be treated as engaged in the trade or business of renting property for information reporting purposes.  In particular, rental income recipients making payments of $600 or more to a service provider  in the course of earning rental income would have to provide an information return to the service provider and the IRS.  This would included all landlords, even if they worked full-time doing something other than landlording, and just rented out a duplex on the side.

After much backlash, the House introduced, H.R. 4, which repeals the provisions of Obamacare and the Small Business Jobs Act  referenced above.

Essentially, with President Obama, signing into law H.R. 4, the reporting rules now revert back to what they were before the 2010 legislation (Obamacare and Small Business Jobs Act) was passed.  We are now back to where we were before the government started monkeying around with things in the first place.

I guess if nothing else it gave me some topics to blog about : )

 

Tags: , ,