Posts Tagged Wisconsin

Crime-Free Lease Bill On The Horizon

On September 12, 2011, on behalf of the AASEW, I traveled to Madison to meet with the Wisconsin Rental Housing Coalition, several legislators’ aides, and an attorney from the Legislative Reference Bureau to assist in the review of and drafting of a new piece of legislation that will greatly affect residential landlords.

Not yet a bill, this proposed legislation is referred to as LRB-2098/1 or informally as the “Crime-Free Lease bill.”  Initiated by fellow landlord and South Milwaukee Police Officer Brian Fleming, this legislation if passed, will change current Wisconsin law to allow a landlord to terminate the tenancy of any tenant (even those under a lease for term) that engages in criminal activity in their rental unit or on the rental property.  A new type of 5 day notice would be created under this legislation which would not allow the tenant the opportunity to cure the breach and stay.  It would basically be a “1 strike” law similar to what is in place in federal Section 8 site-based housing.

Criminal activity under the proposed legislation would be defined as any act or behavior that is punishable in Wisconsin by a fine or period of imprisonment or that is a violation of a municipal ordinance.

If the tenant fails to vacate the unit after being served with this new 5 day notice, the landlord would still be required to prove the criminal activity in eviction court.

The impetus for this legislation was the National Crime Free Lease Addendum that has been adopted and used in many counties outside of Wisconsin.  Under this initiative, a tenant agrees not to engage in criminal activity on the rental property — or allow any of their guests to do the same — and signs a contract with the landlord to that effect.  If the tenant or the tenant’s guests engage in the prohibited criminal activity, they agree to vacate the property upon notice by the landlord.

Current law in Wisconsin conflicts with the Crime Free Lease Addendum as tenants under a lease for a specific term, must be afforded the opportunity to correct the breach and remain a tenant the first time that they violate their lease — even if that violation is a crime.

Sec 704.17(2)(b) of the Wisconsin Statutes, allows a tenant under a lease who engages in criminal activity, to remain a tenant as long as s/he ceases the criminal activity within 5 days of being served the notice of breach.  Thus, a landlord can be stuck with a tenant that he knows engages in criminal behavior until that tenant commits a second crime and can be served with a 14 day notice (which does not afford the tenant the opportunity to “cure” the breach and remain a tenant).

This puts Wisconsin landlords in a very difficult position and opens them up to liability.  It also prevents a landlord from protecting his/her other tenants from the tenant that is engaging in criminal activity.

Once the bill is officially introduced and has obtained co-sponsors I will let you know so that you can begin calling and writing your state representatives to encourage them to vote in favor of this very important legislation.

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Update on Landlord Pre-Emption Bill

It has been awhile since I updated everyone on the pro-landlord legislation that is being addressed in Madison.  Senate Bill 107 (SB 107) — referred to as the Landlord Pre-Emption Bill —  has been passed by the Wisconsin Senate and is currently being reviewed by the House this term (AB 155).

You may recall that SB 107 prohibits any municipality from enacting any ordinance that 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, or limits how far back in time a prospective tenant’s
credit information, conviction record, or previous housing may be considered.

The bill has received much opposition from local municipalities and their lobbyists, not for the substance of the bill, but rather for the fact that if passed, the law will
restrict a municipality’s ability to draft certain ordinances.  Essentially the municipalities feel this to be a breach of their own sovereignty and an example of the state overstepping its bounds.  Many feel that this is really just a Madison problem — since it is the City of Madison that has enacted many of these restrictions on what information a landlord can consider when making a rental decision – and therefore should be dealt with at the city level.

Another group of critics believe that the bill discriminates against African-Americans.  Four Dane County Board Supervisors, two Madison City Council members and one Madison School Board member, sent a letter to Governor Walker and legislators on September 7, 2011, asking that the provision of the bill that will allow landlords to deny housing to tenants with criminal histories be removed because is discriminates against African Americans.

They argue that allowing a landlord to deny a rental applicant housing based on his/her criminal convictions will unfairly affect African-Americans because while they
only comprise 6% of the state’s population they account for almost 50% of those with arrest and conviction records.  Thus the critics of the bill argue that to allow a landlord to deny a rental applicant based on his/her criminal record is to allow landlords to deny housing based on race.

The critics are relying on the doctrine of “disparate impact.”  The disparate impact doctrine holds that certain laws may be discriminatory and illegal – even if the law is neutral on its face — if they have a disproportionate “adverse impact” on members of a minority group.

This disparate impact argument is ignoring a key ingredient – one’s choice to engage in criminal activity.  One’s race is not something that a person has control over – we are born into a certain race.  On the other hand, individuals do have control over whether or not they engage in criminal activity.  Committing a crime is a volitional act.  Being born African-American is not.  We are dealing with apples and oranges here.

Disparate impact arguments are often raised when a law unintentionally affects a minority group through no fault of their own.  This small group of critics, are trying to apply the disparate impact doctrine to individuals that made a voluntary decision to engage in criminal activity.

 

UPDATE – 10-28-11 — On Wed. Octo 26, 2011, By a vote of 59-34 the Assembly voted to suspend a rulling on AB155.  An amendment was made by Rep Chris Taylor (D-Madison) that would protect some local control within the bill – the amendment was tabled by a vote of 60-33.

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Imagine If Every Tenant Received A Free Lawyer In Eviction Actions . . . It Could Become A Reality

If Legal Action of Wisconsin, Inc, 274 lawyers, 7 judges and 2 court commissioners,have it their way, all indigent persons that are involved in civil lawsuits involving  issues of  “basic human needs” will be given a free lawyer.

According to a recent Milwaukee Journal Sentinel article and ABA Journal article the Wisconsin Supreme Court has been petitioned and asked to require that all indigent persons involved in civil lawsuits that involve issues impacting an individual’s basic human needs, such as sustenance, shelter, clothing, heat, medical care, safety, and child custody and placement, be provided a free lawyer to represent them in th elegal proceedings.

The proposed cost on taxpayers would be anywhere from $50 million to $80 million per year.

If this “civil Gideon rule” is passed you can expect that almost every tenant that wants one will be given a free lawyer to defend them in an eviction action.  This will greatly affect landlords on many fronts.  First, it will result in a delay in the overall process of removing a tenant from a rental unit thus allowing the tenant to remain in the rental unit longer and result in the landlord losing more rent.  Second, it will increase a landlord’s costs by (most likely) increasing the cost to file an eviction action, and then result in higher attorney’s fees should the landlord opt to retain a lawyer; if the landlord handles the eviction himself/herself then s/he will lose more time and money by having to take off work.  Third, assuming that the $50 million – $80 million estimated costs to pay for the “free lawyers” are not entirely covered by an increase in civil filing fees, landlords will most likely see an increase in taxes in some way, shape, or form.

Since the majority of the eviction cases that I encounter involve the tenant not paying rent and has no legal defense, I see this proposed rule as only causing additional court congestion and delay.

In a state such as Wisconsin, which already has very tenant-friendly laws and regulations to begin with, and has courts that often go out of their way to give tenant’s additional time to vacate (in violation of state statutes), and even goes so far as to provide legal advice to tenants (which they should not be doing), this civil Gideon rule, if passed, will make it even more difficult for landlords to continue to survive in the rental industry.

Added October 19, 2010 — Here is a recent blog post by David Ziemer of the Wisconsin Law Journal about the Civil Gideon rule.

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New Carbon Monoxide Detector Notice Form (and Others) Available at Wisconsin Legal Blank

I have recently completed drafting 3 new forms that Wisconsin Legal Blank Co., Inc. now has available for purchase that should assist landlords and property managers with their rental units..

The new forms are:

1.  Carbon Monoxide Detector Notice:

As of April 1, 2010, state law requires that an owner of a residential property must install a carbon monoxide detector  in various locations within the property.   This new notice sets forth the state requirements as to where the detectors must be located.  The notice also alerts owners that state law requires the owner maintain the detector.  The new law, which can be found at Sec. 101.149, Wis. Stats., also requires a tenant to provide an owner with written notice if the carbon monoxide detector is not working.  Once the owner receives this notice s/he has 5 days to repair or replace the carbon monoxide detector.

This new form sets forth all of the pertinent requirements under the new law and acknowledges that the the owner has complied with this law.  A tenant’s signature on the form acknowledges that the detectors in the rental unit are working and that the tenant is aware that they must notify the owner in writing should any detector stop working or not work properly.

2.   Miscellaneous Complaint Form:

This document will provide landlords with a standardized form that s/he can use  and provide to all tenants so that if a tenant has a complaint it can be documented properly in writing. 

As we all know, it is easier for a landlord to monitor and address tenants complaints if they are provided in writing.  Additionally, a tenant will often testify in court that they didn’t  pay rent becasue the landlord failed to remedy some problem in the unit which the landlord was never notified of.  If a landlord has a policy and procedure in place to provide all tenants with blank written complaint forms at the outset of the tenancy and require them to document any complaints in writing,  the fact that a tenant failed to provide written notice of a problem (when a form was provided) should help to avoid those “he said – she said” situations in court.

3.   Rent Promotion/Concession Agreement:

With the recession in full force, I have noticed that many of my clients and other landlords are offerring new tenants some form of concession in order to induce them to move-in.  A common problem that I have noticed with the self-drafted promotion/concession agreements that are being used, is that many of them are not clear and do not accurately set forth the agreement. For example, many of the agreements that I have seen do not clearly state that if the tenant does not perform all obligations under the rental agreement for the term of the lease, that the concession will be forfeited.  Failure to have this clearly stated in any concession agreement will allow the tenant to receive the benefits of the concession (such as first month’s rent free or reduced rent for first month’s rent) and still break or breach the lease.

It is my hope that with this form, landlords will at the very least have the necessary language to use — if they wish to offer a concession or promotion — so that should the tenant vacate prior to the end of the rental term, or be evicted prior to the rental term, or if the tenant’s tenancy is terminated by the landlord for any reason, that the tenant will forfeit ther rent concession.

I have been working on some additional forms for WLB that should be available in the near future — I will let you know when they are ready.

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