Posts Tagged Legislation

Act 76 – Wisconsin’s New Landlord-Tenant Law – Part 4: Who May File An Eviction and Who May Appear In Court

Act 76 which will become effective on March 1, 2014 has changed Wisconsin law with regard to who may file an eviction action and who can appear in court to prosecute an eviction.

Current law only allows the person or entity “entitled to the possession of the property” to file an eviction action.  Typically this would be the owner of the rental property.  As such, a management company or another third party cannot currently be named as the plaintiff in an eviction action — only the owner can.

In the past, the Milwaukee County Court Commissioners where monitoring this issue closely, even going so far as to look up the tax bill for the rental property online while the case was in court to insure that the named plaintiff in the eviction lawsuit was the owner named on the tax bill.  If they were not, the case would either be dismissed or adjourned to allow the owner to be substituted as the plaintiff and appear in court.

Act 76 will amend sec. 799.40(1), Wis. Stats., and as of March 1, 2014, an eviction lawsuit may be filed by either:

1.  The person entitled to possession of the property (i.e. owner),  OR

2.  An agent of the person entitiled to possession of the property as long as they are authorized to do so in writing.

So in the very near future, it will be legal for a property management company to file an eviction lawsuit on behalf of one of their clients (the owner) as long as the owner has authorized the property management company to do so in their management contract or a separate writing.

Similarily, Act 76 will also change who may appear in court to represent the named party in an eviction action.

Current law allows a person entitled to possession of the property (which can be a person, business entity, trust etc.) to appear by the person himself or herself, an attorney,  or a full-time employee.  As a result, landlords that had transferred their rental properties into a LLC (limited liability company) for liability protection were required to appear in court by an attorney unless they could prove that they were a full-time employee of the LLC (which was typically not the case).

So under current law, if an LLC was the owner of the rental property — and thus was required to be the named plaintiff — it could only appear in court through a lawyer.  A member of the LLC, even if it were a single member LLC, could not appear in court to represent the LLC.  To those of you who understand the basics of what is referred to as the  “corporate fiction” of a business entity and understand that a business entity (even a sole member LLC) is distinct and separate from the individual person, this made sense.  Nonetheless, from a practical perspective it was frustrating to many smaller landlords that had opted to move their rental real estate into a LLC that they could no longer appear in court to prosecute an eviction.

Act 76 has eliminated the requirement that the person be a full-time employee of the business entity in order to appear in court on its behalf.

As of March 1, 2014, it will be acceptable for a party in any small claims lawsuit to appear in court by himself/herself, by an attorney, by a member (as defined in sec. 183.0102(15), Wis. Stats.), by an agent, by an authorized employee of the person, or by an agent of the member or an authorized employee of the agent.

So pretty much anyone can now appear in court to represent an owner or management company on an eviction as of March 1, 2014.

It is important to remember that this law change applies to all small claims actions, not just evictions.  So this change will affect small claims collections lawsuits, replevins etc.  Additionally, the new law applies to ALL parties – not just landlords.  So a tenant will now also be able to appear in court by an agent or authorized employee.

While I am no Nostradamus, I think it is fair to say that this particular change in the law will result in bit of confusion and congestion in eviction court.  It may also result in some eviction cases being dismissed if the landlord does not have a firm grasp of landlord-tenant law and small claims procedure.   For those of you that are interested in appearing in court yourself, I would reccomend that you educate yourself accordingly.  Attending the AASEW’s Landlord Boot Camp on March 8, 2014, to insure that you know what you are doing would not be a bad idea.

And for those of you that have better things to do than waste an afternoon sitting in eviction court, you still will have the ability to hire an attorney to represet you ; )

 

 

 

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ACT 76 – Wisconsin’s New Landlord-Tenant Law – Part 3: Speeding Up the Eviction Process

Several of the provisions of Wisconsin’s New Landlord-Tenant law, Act 76 (SB 179), were created or amended to speed up the eviction process.  Evictions are supposed to be summary proceedings and per the Wisconsin Supreme Court (Scalzo v. Anderson, 87 Wis. 2d 834 (1979)) there are very limited number of issues permissible in an evictions action.  Nonetheless, tenants were finding ways to delay the process.  Hopefully Act 76 will resolve much of that delay.

First, Act 76, amends sec. 799.12, Wis. Stats. to allow circuit courts in the various counties to decide via local rule whether or not to allow service of an eviction summons via certified mail. Current law does not allow service of an eviciton by mail and requires that an eviction summons be served personally, or after reasonable diligence has been made, via substituted service or posting and mailing.

If a county allows service via mail, then the clerk shall mail a copy of the eviction summons to each defendant at their last known address.  Service of the summons will be considered completed when mailed, unless the envelope enclosing the summons has been returned unopened to the clerk prior to the court date.

I personally think that service of an eviction summons via mail will cause logistical problems.  I can tell you right now that Milwaukee and Dane counties certainly will not agree to service by mail in eviction actions but possibly it will work in smaller counties.

Second, Act 76 amends sec. 799.05(3)(b), Wis. Stats. and states that the return date (initial appearance) in court can be no less than 5 days and no more than 25 days after service is issued (i.e. the tenant is served with the eviction summons).  Current law requires the return date be held no less than 5 days and no more than 30 days after service.

It will be important that landlords make sure that their process servers are aware of this law change starting March 1, 2014 otherwise it could result in their evictions being dismissed if the return date/initial appearance is scheduled more than 25 days after service is effectuated.

Third, sec. 799.206 and sec. 799.20(4), Wis. Stats,  have been amended to require that all contested hearings in small claims actions (evictions, garnishments, replevins etc.) must be scheduled within 30 days of the return date/initial appearance.

Even more important to landlords is that all residential evictions trials on the first cause of action (i.e. return of the premises) must be held and completed within 30 days of the return date/initial appearance.  This law new law applies to both trials to the court and jury trials.

I personally feel that this change is the most important part of Act 76 in terms of speeding up the eviciton process.  While many evictions are not contested and the landlord obtains a default judgment, those that are contested can take a long time to get to trial.  Many tenants and their advocates have been requesting jury trials on eviction matters.  By doing so – at least in Milwaukee county – these cases are rotated to a large claims judge handling civil matters (as the small claims judge does not handle jury trials) and result in a lengthy delay.  In some of my contested eviction cases, it was taking 2 months to even get before the judge for a Scheduling Conference and the jury trial itself was not being scheduleded until 6 months after the return date.

While tenants are entitled to their day in court – which includes a jury trial if they wish — they should not be given a 6 month reprieve just by requesting a jury trial.  During those 6 months the landlord often is not receiving any rent payments and/or the “good” tenants in the building are stuck putting up with the actions of the breaching tenant.  In my opinion, requesting a jury trial in an eviction action is nothing more than a delay tactic.  Tenants and their advocates have been successful in buying more time and in making the eviction process more expensive for the landlord by driving up his/her costs and fees.  Of all the jury trials requested by tenants in eviction cases that I have been involved in (which number over 20 – most of which occurred this past year) not one of them actually went to trial.  So I am very happy to this new law hopefully put a stop to this abuse of the system.  Tenants will still get their trials but they can no longer stretch it out for months and months.  How the courts will assimilatate these jury trials within the 30 day time limit will be the key issue moving forward.

 

If you missed my prior posts on Wisconsin’s new landlord-tenant law you can click on the links below

Part 1 – Background and Overview

Part 2 – Restrictions on Local Ordinances

 

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ACT 76 – Wisconsin’s New Landlord-Tenant Law – Part 2: Restrictions on Local Ordinances

As I mentioned in Part 1, the soon to be new law contains new provisions as well as some corrective provisions (which will correct unintended consequences from last year’s new law Act 143).  In this blog post I will talk about one of the new provisions of the law which will restrict a local municipality from creating and/or enforcing certain local ordinances.

The new law will creates sec. 66.0104(2)(c) and (d), Wis. Stats., which says that a municipality may not enact or enforce an ordinance that:

a.   Limits a residential tenant’s responsibility, or a residential landlord’s right to recover for damage, waste or neglect of the premises, or for any other costs, expenses, fees payments or damages for which tenant is responsible under law or under the rental agreement.

b.  Requires a landlord to communicate to a tenant any information that is not required to be communicated under federal or state law.

i.e. City of Madison’s ordinance that requires landlords to distribute voter registration information to new tenants will not be enforceable under this new law.

c.  That requires a landlord to communicate to a municipality any information regarding the landlord or tenant unless:

(1) Information is required under federal or state law.

(2) Information is required of all residential real estate owners (not just landlords!)

(3) Information will enable a person to contact the owner, or agent of the owner.

Note: This subsection does not apply to an ordinance that has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

So what will the net effect of this new provision of the law curtailing local municipalities from enacting and enforcing certain ordinances?  According to one tenant advocate SB 179 will eliminate over 20 Madison ordinances.  SB 179 should also eliminate Milwaukee’s Residential Rental Inspection (RRI) pilot project in the UW-M and Lindsay Heights neighborhoods.

It should be noted however that the new law will not eliminate “rental recording” in various municipalities as earlier versions of SB 179 had.  Under the final version of the law, landlords will still have to provide their ownership and contact information to the municiaplity since doing so would fall under the above exception since the information will enable a person to contact the owner or agent of the owner.

To learn more on the background and overview of Wisconsin’s new Landlord-Tenant Law read my prior post.

 

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ACT 76 – Wisconsin’s New Landlord-Tenant Law – Part 1: Background and Overview

Senate Bill 179, which is commonly referred to as the “Landlord-Tenant Law Bill,” is on its way to becoming law in the near future.  For many of us it has been a long wait.

After initially being introduced in the Wisconsin Senante on May 8, 2013, the Senante concurred to some changes made to SB 179 by the Assembly on October 16, 2013.  It is expected that Governor Walker will sign this bill into law prior to the end of the year.

The new law is 8 pages long and will make sweeping changes to Wisconsin’s landlord-tenant laws as we currently know them.  This new law will benefit landlords and “good” tenants.  “Bad” tenants (i.e. those that don’t pay rent on time, cause damage to the rental property, ignore the rights of their neighbors and fellow tenants etc. etc.) will not like this new law.

This new law was initially created to fix many of the unintended consequences from last year’s Landlord’s Omnibus law – Act 143.  Act 143 was unfortunately rushed through the legislative process in a little over a month.  Rushed legislation is never good.  As a result of the speed with which Act 143 was created, coupled with the fact that those of us that spend most of our days dealing with landlord-tenant issues were not consulted, there were some serious flaws in Act 143.  SB 179 will repair those flaws.

Fortunately, SB 179 was not rushed like its predecessor.  Work on SB 179 began even prior to Act 143 becoming law – once the problems were recognized.  Many of us involved in the process worked on SB 179 since April of 2013.  SB 179 was officially introduced in the Senate on May 8, 2013, and as mentioned previosly, it was finalized in mid-October.  So from start to finish it took approximately 6 months not including the time for the Governor to sign it.

I have been asked by many over the past few weeks, when will this new law become effective.  Well, the answer to that depends in part on when the Governor signs it.  SB 179 states that most componants of the new law will become effective on the 1st day of the 3rd month following its publication.  So it would become effective February 1, 2014 or March 1, 2014 depending on when it is signed into law.

By my count, the new law repaired/corrected 6 sections of Act 143 and introduced or amended an additional 13 other sections that will affectlandlord-tenant law in Wisconsin.

In future blog posts during I will summarize and discuss all 19 componants of the new law.

 

 

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Why I Am So Excited About This Saturday’s AASEW Landlord Boot Camp

I am really excited about this Saturday’s AASEW Landlord Boot Camp.  Why you ask?  Well let me tell you.

Just last week the Senate in Madison passed SB 179 which is a very large and sweeping revision to much of landlord-tenant law in Wisconsin.  This bill not only cleans up the unintended consequences of last years Act 143, it also makes some major changes such as:

 

- Applies the new streamlined abandoned property law to evictions

- Allows the towing of vehicles on private property without the need for a citation to be issued first

- Prevents municipalities from requiring landlords to distribute information or report information to the government that is not required by state or federal law

- Allows non-lawyers to appear in court to represent their LLC’s in eviction and other small claims actions

- It speeds up the eviction process – requiring the court to hear and complete an eviction trial within 20 days of the return date

- Allows property management companies or another agent of the owner to file evictions on behalf of their clients/owners

- Clears up the confusion regarding evicting a tenant that was involved in criminal activity

 

This bill has not yet been signed into law, but barring a veto from Governor Walker — which is not anticipated — it will become law very soon.  SB 179 will help landlords and good law-abiding tenants alike.

So the reason I am so excited about this Saturday’s Boot Camp is because it will be the 1st opportunity I have to teach landlords and property managers about the new changes.

SB 179 is a very comprehensive law.   I just completed my outline this past weekend and boy there is a lot of information to cover.

If you are interested in learning about this new bill as well as the 7 other large topics that I will be teaching (including: the judicial eviction process, causes for eviction, security deposit issues, screening applicants, rental documents and much much more) at this Fall’s Boot Camp — please go to www.landlordbootcamp2013.com and sign up as there are still a few spots left!

I hope to see many of you there.

T

 

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SB 179 (“Landlord-Tenant Bill”) Is On It’s Way To Governor Walker To Be Signed Into Law

At about 6:40 pm on October 16, 2013, SB 179 (commonly referred to as the Landlord-Tenant Bill) was concurred by the state Senate after a minor amendment was made in the state Assembly earlier.  The bill passed 18-15 despite attempts to delay the bill via a motion to non-concur.  The bill now goes to the Governor who has 30 days to “call” for the bill and sign it.

If you would like to watch the hearing you can do so by clicking here.  The portion of the hearing dealing with SB 179 starts at approximately 2:58.

This bill which will hopefully become law — absent a veto by the Governor — will makes some major changes to Wisconsin Landlord Tenant law and the small claims eviction procedure.  It also cleans up several of the unintended consequences of Act 143, which also dealt with landlord-tenant law, which became law back on March 31, 2012.

I will be devoting a segment of the AASEW’s upcoming Landlord Boot Camp on October 26, 2013, to discussing SB 179 and its effect on the landlord-tenant landscape.  For more information on the upcoming Boot Camp, including a summary of other topics that will be covered, prior attendees’ testimonials, and how to register to attend, please go to www.LandlordBootCamp2013.com.

Assuming the Governor signs SB 179 into law, I will most likley be posting on this topic again in the near future and offerring my own analysis of the law, but for now I have reproduced for the Wisconsin Legislative Council’s October 14, 2013 memo which summarizes current law in Wisconsin and then summarizes how SB 179 will affect/change current law.

 

This memorandum describes Senate Substitute Amendment 1 to 2013 Senate Bill 179, as amended by Senate Amendments 17 and 18, relating to landlord-tenant law, small claims actions, and towing of vehicles.  In addition, this Memo describes Assembly Amendment 1 to 2013 Senate Bill 179, as passed by the Senate.  The section numbers in brackets refer to the sections of Senate Bill 179 that are described under each heading, below. 

 

RESTRICTIONS ON LOCAL ORDINANCES [Sections 1-4]

Under current law, a city, village, town, or county (municipality) is prohibited from enacting or enforcing certain ordinances relating to landlords and tenants, such as an ordinance imposing a moratorium on eviction actions or an ordinance that places certain limitations on what information a landlord may obtain and use concerning a prospective tenant.  [ss. 66.0104 and 66.1010, Stats.]

Senate Bill 179 additionally prohibits a municipality from enacting or enforcing an ordinance that does any of the following:

  • Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.
  • Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.
  • Requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.
  • Requires a landlord to communicate to the municipality any information concerning the landlord unless the information is required under federal or state law or is required of all residential real property owners.

Senate Substitute Amendment 1 authorizes a municipality to enact or enforce an ordinance that requires a landlord to communicate to the municipality any information concerning the landlord ifthe information is solely information that will enable a person to contact the owner or, at the option of the owner, an agent of the owner.

Senate Amendment 17 to Senate Substitute Amendment 1 authorizes a municipality to enact or create an ordinance that requires a landlord to communicate information to tenants that is not required to be communicated to tenants under federal or state law if the ordinance has a reasonable and clearly defined objective of regulating the manufacture of illegal narcotics.

Assembly Amendment 1 to Senate Bill 179, as passed by the Senate (i.e., as amended by Senate Substitute Amendment 1 and Senate Amendments 17 and 18) modifies the provision described above that generally prohibits a municipality from enacting or enforcing an ordinance requiring a landlord to communicate to the municipality any information concerning the landlord, unless an exception applies.  Assembly Amendment 1 provides that the general prohibition relates to communication to the municipality of any information concerning the landlord or a tenant, unless an exception applies.

 

NOTIFICATION TO A PROSPECTIVE TENANT OF BUILDING CODE OR HOUSING CODE VIOLATIONS [Section 11]

Under current law, if a landlord has actual knowledgeof any uncorrected building code or housing code violation in the dwelling unit or a common area that presents a significant threat to the prospective tenant’s health or safety, the landlord must disclose the violation to a prospective tenant before entering into a rental agreement or accepting any earnest money or security deposit.  [s. 704.07 (2) (bm), Stats.]

Under Senate Bill 179, the landlord must disclose the types of violations described above only if he or she has received written notice of the violation from a local housing code enforcement agency.

Senate Substitute Amendment 1 deletes this provision from the bill. 

 

COMMISSION OF CRIMES ON RENTAL PROPERTY [Section 18]

Under current law, if a lease contains any of a list of prohibited provisions, the lease is void and unenforceable.  Among the prohibited provisions is a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.  [s. 704.44 (9), Stats.]

Senate Bill 179 repeals the provision of current law describe above.

Senate Substitute Amendment 1 replaces the current law provision described above with a provision that states that the lease is void and unenforceable if it contains a provision that allows the landlord to terminate a tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime.  Victim is defined by reference to s. 950.02 (4), which generally provides that “victim” means a person against whom a crime has been committed, unless he or she is the person charged with or alleged to have committed the crime.

In addition, the substitute amendment requires a lease to include a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats.  The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking.  The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premises. 

The substitute amendment also provides that a lease is void and unenforceable if it allows the landlord to terminate the tenancy of a tenant for criminal activity in relation to the property and the lease does not include the notice regarding domestic abuse protections described above. 

Senate Amendment 18 to Senate Substitute Amendment 1 modifies the language required under the notice of domestic abuse protections.  Under Senate Amendment 18, the notice provides that a tenant has a defense to an eviction action under the circumstances provided in s. 106.50 (5m) (dm), Stats., instead of providing that a tenant may be able to stop an eviction action under such circumstances.

 

TERMINATION OF TENANCY IN MOBILE OR MANUFACTURED HOME COMMUNITIES FOR THREAT OF SERIOUS HARM [No provision in Bill]

Under current law, a landlord may terminate the tenancy of a tenant if the tenant commits one or more acts, including verbal threats, that cause another tenant, or a child of that other tenant, who occupies a dwelling unit in the same single-family rental unit, multi-unit dwelling, or apartment complex as the offending tenant, to face an imminent threat of serious physical harm from the offending tenant if the offending tenant remains on the premises.  [s. 704.16 (3), Stats.]

Senate Substitute Amendment 1 authorizes a landlord to terminate the tenancy of the tenant of a mobile or manufactured home community who threatens another tenant, or child of another tenant, of the mobile or manufactured home community under the same circumstances, described above. 

 

TIMING OF RETURN OF SECURITY DEPOSIT [Section 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.  [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, if a tenant is evicted, the landlord must return the security deposit to the tenant within 21 days after the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

Senate Substitute Amendment 1 provides that the timing of the return of the security deposit depends on whether the tenant is evicted before or after the termination date of the lease.  If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins.  If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction. 

 

SERVICE OF SUMMONS IN EVICTION ACTION [Section 22]

Under current law, under most circumstances, the summons in an eviction action must be personally served upon the defendant (the tenant), unless this cannot be achieved with “reasonable diligence.”  In this case, the summons may be served by leaving a copy of the summons at the defendant’s usual place of abode in the presence of either:  (1) a competent member of the family who is at least 14 years old; or (2) a competent adult who resides in the abode of the defendant. The person serving the summons must inform the family member or other person of the contents of the summons.  [s. 801.11 (1) (b), Stats.]

Under Senate Bill 179, a court may, by rule, authorize the summons in an eviction to be served by regular mail.

Senate Substitute Amendment 1 provides that use of certified mail shall be required for all eviction cases for which service by mail is authorized by a court. 

 

TIMING OF APPEARANCE AND TRIAL IN EVICTION ACTIONS [Sections 20, 23 and 24]

Under current law, the summons in an eviction action specifies the date that the defendant must appear in court.  That appearance date must be set at not less than five days or more than 30 days after the summons is issued.  [s. 799.05 (3) (b), Stats.]  Also, the court generally sets the matter for a trial or hearing when the tenant makes the initial appearance.  Current law does not specify the required timing of the trial or hearing.  [s. 799.20 (4) and 799.206 (3), Stats.]

Senate Bill 179 changes the appearance date to not less than five days or more than 14 days after the summons is issued.  The bill also specifies that the trial or hearing must be scheduled within 20 days after the date of appearance.

Senate Substitute Amendment 1 changes the appearance date to not less than five days or more than 25 days after the summons is issued.  The substitute amendment also specifies that a trial or hearing on the issue of possession of the premises involved in the action must be held and completed within 30 days after the date of appearance, and provides that this provision applies only to residential tenancies. 

 

WHO MAY APPEAR IN SMALL CLAIMS ACTIONS [Section 21]

Under current law, in any small claims action, a person may commence and prosecute or defend an action or proceeding himself or herself, or by an attorney or a full-time authorized employee of the person.  [s. 799.06 (2), Stats.]

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent.  This provision applies to all small claims actions, not only evictions.

Senate Substitute Amendment 1 clarifies that “member”means a member as defined in s. 183.0102 (15), Stats.:

“Member” means a person who has been admitted to membership in a limited liability company as provided in s. 183.0801 and who has not dissociated from the limited liability company. 

 

DISPOSITION OF PROPERTY LEFT ON RENTAL PREMISES AFTER EVICTION [Sections 9, 10 and 29-46]

Under current law, if a tenant leaves property of value on the rental premises after he or she has been evicted, the property must be removed and stored.  The evicted tenant is notified of the location of the property and provided with the receipt needed to obtain possession of the property.  The evicted tenant is responsible for the costs of storage.  In Milwaukee County, the sheriff must remove and store the property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property.  If the landlord does not choose to remove and store the property, the sheriff must do so.  [s. 799.45 (3), Stats.]

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise.  If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement, or at any other time before the tenant is evicted from the premises.  If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Senate Substitute Amendment 1 deletes the bill provision that authorizes a landlord to provide the notice described “at any time before the tenant is evicted,” and provides that any notice that is provided must be provided either when the tenant enters into or renews the rental agreement. 

 

TOWING OF VEHICLES [Sections 5-8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued.  If the vehicle is taken by a towing service to any location other than a public highway within one mile from the location in which the vehicle was improperly parked, the municipality or the traffic or police officer must, within 24 hours, provide the towing service with the name and last-known address of the registered owner and all lienholders of record.  [s. 349.19 (3m) and (5) (c), Stats.]

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued.  “Properly posted” means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately removed.  The vehicle may be removed by a towing service at the request of the property owner or property owner’s agent, a traffic officer, or a parking enforcer.  A parking enforcer is a person who enforces nonmoving traffic violations and who is employed by a municipality, a county, or the state.  Also, the bill requires the Department of Transportation (DOT) to promulgate rules establishing reasonable charges for removal and storage of vehicles under the provisions described above.

Under Senate Substitute Amendment 1, if a property owner has a vehicle towed under the provisions described above, the towing service must notify a local law enforcement agency of the make, model, and license plate of the vehicle and the location to which the vehicle will be towed.  The law enforcement agency is required to maintain a record of the notice as well as the identification of the towing service.  Also, the substitute amendment prohibits a towing service from removing a vehicle that has been reported to a law enforcement agency as stolen.  

In addition, under the substitute amendment, if requested by the municipality in which the vehicle was illegally parked, the towing service must charge the vehicle owner a service fee not to exceed $35.  The towing service must then remit the service fee to the municipality according to procedures specified in the statute. 

The substitute amendment provides that the rules promulgated by DOT must establish the form, and manner of display, of the notice necessary to qualify as “properly posted” under the provisions described above, as well as guidelines for towing services to notify law enforcement of the removal of a vehicle. 

 

 

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CCAP Is Under Attack Again

When Senator Marlin Schneider lost re-election a few years ago, I thought that the attacks against Wisconsin’s Consolidated Court Automation Programs (CCAP) would disappear.  Well they did — for a while.  But Senator Lena Taylor along with Representatives Goyke, Sargent, Kessler, Hebl and Pope haven taken up the torch and are trying to prevent the public from accessing CCAP once again via Senate Bill 234/Assembly Bill 253.

These two bills were introduced on July 31, 2013, and if passed will negatively affect access to “open records” in the following ways:

1.  Two separate CCAP databases would be created.  One for a privileged few and another with less information for the general public.  The current CCAP database would only be available for judges, court commissioners, other court, state, local, agency employees, law enforcement and law enforcement employees, lawyers, journalists, licensed debt collectors, employees for financial institutions, and realtors — and landlords (see below correction note).  A second more restrictive database would be available for everyone else.

2.   The more restrictive database accessible by the general public would only provide case information after a court has done one of the following:  (1) made a finding that a person is guilty of a criminal charge, (2) made a finding that a person is liable in a civil matter, (3) ordered a judgement of eviction, or (4) issued a restraining order or injunction.  If one of those 4 things did not yet happen — the general public will not even be able to access that information.

3.   All information related to a criminal or civil case in which a finding or order related to the case or charge is reopened, vacated, set aside, or overturned on appeal, would be removed from the more restrictive CCAP database.

4.   If a user searches for a person’s name on CCAP and then denies that person employment, housing, or another public accommodation, the user must inform the person that a CCAP search was performed on them.  Failure to tell the person could result in a $1,000 fine.

5.   Upon receipt of a written request, the Director of State Courts must remove from the general public database, any information relating to a case if there was no finding of criminal guilt or civil liability, order of eviction, or issuance of a restraining order, or if the finding or order was subsequently reopened, vacated, set aside, or overturned.

What does this mean to landlords and property managers? ————— See correction note at end of post.

Short Answer:  You will have a much more difficult time screening any prospective tenants.  And as a result of being able to review only select information you may end up renting to someone that you otherwise would not have, resulting in increased costs to you such as eviction costs, damage to your property, lost rent.

Long Answer:

You will be unable to learn about any pending criminal cases, eviction cases, money judgment cases, restraining orders, that an applicant might have pending until the case is concluded and has resulted in a judgment or conviction.

So if the person that has applied to live in your rental property is currently charged with a drug crime, you will have no way of knowing that — lucky you.  Nor would you be aware that the reason an applicant is applying to rent your unit is because their current landlord is currently evicting them.  You would also be unable to learn that an applicant is currently being sued by their landlord for damaging the rental property they just left.  You also would be unable to learn that the applicant is being sued for not paying other bills.  Essentially, you would lose access to information that would be very helpful in determining if this applicant would be a successful tenant with you.

If the applicant that wants to rent your property has been evicted in the past and a motion to reopen the judgment of eviction has been filed when you are evaluating the applicant’s application — that information would be off limits to you.  If the applicant ever had an eviction judgment or money judgment case reopened and vacated  — regardless of the reason — you also would not be able to learn that information.  Believe it or not, some courts have been known to grant a motion to reopen/reconsider and vacate a judgment of eviction, solely because the tenant already vacated the unit at the time they filed to motion to reopen/reconsider.  If this bill were to be signed into law, and that was to occur, you the landlord, would never even have the chance to learn that there was an eviction judgment against the applicant you are screening.

If you use CCAP as part of your screening process (is there any landlord in Wisconsin who doesn’t?) you must advise the tenant (in writing to CYA) that you performed a CCAP search on them if you end up not renting to them.  Failing to so so could end up costing you $1,000.

A person could write the Director of State Courts and ask them to remove any information on CCAP regarding any criminal case ever filed against them if it did not result in a conviction.  So the individual that I represented 17 years ago when I was a young lawyer trying to decide is I wanted to be a criminal defense lawyer, who had been charged with 8 domestic violence -battery misdemeanor counts over the course of 3 years for beating his girlfriend — never to be convicted of any of them because the victim was too scared to appear in court to testify — would be able to remove any mention of  being charged with those crimes.  Do you think he would be a good tenant?

In the case of a civil matter — such as an eviction or money judgment — if there was no finding of liability or an eviction judgment entered than any reference to that case would be removed from CCAP, upon receipt of a request to do so by the person.  So if the person applying to rent your unit has had prior evictions filed against them in which the landlord decided to not proceed because the tenant moved out before the court date, that information could be removed.  Remember all those stipulated dismissals that you entered into with a tenant to vacate, so that you could avoid a trial?  If this bill passes, none of those would show up in the general population CCAP database because they were dismissals.

I guess “public records” are really not so “public” after all.  Hopefully this bill will not see the light of day and will die a quick death.

CORRECTION 08/05/13 —- I received a t/c from Rep. Evan Goyke, one of the authors of the bill, and he pointed out that under his bill “landlords” would be able to access the full version of CCAP as they would be included in the group of “chosen few” who would still be able to access CCAP as we currently know it.  See proposed sec. 758.20(3)(a)(8).   I appreciate him calling me to point that out and I apologize for inadvertantly posting incorrect information about the bill

 

 

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