Winter is Coming, But Can I Move?

Although my Eviction class was fairly small at UWMC last night (four people had signed up and paid for the class, but only three showed up), I think it went fairly well. The only two minor problems were that this class was written as a two hour class and because of a typo, the class runs from 6:30 to 8:00. So, I do need to pick up the tempo a little quicker than I would really like. However, all the material got covered and all the questions that came up in the class were answered.

The other glitch was the remote for the projector. This was my back up projector that I had bought at auction a while back. I decided to use this as my primary because it came with a remote that would not only control the projector, but would also interface with the computer. I could use it to move the Power Point slides both ahead and backwards. It even has a laser pointer built in. However, about halfway through it stopped working and I had to advance the slides by hand with the computer’s touch-pad. Apparently, the battery in it went dead. Which, probably should not have been a surprise to me because it is the same battery that was in it when I bought it (so who knows how long it has been in there), and after I discovered it had a laser pointer Tuesday evening, I spent over a half hour using it to mess with two of the cats, as they chased the little red light all over the basement – a good time truly was had by all.

It is Thursday, and of course the most important thing about this Thursday is that Grey’s Anatomy is back on the air with new episodes. However, before that, Dr Rent is back on the radio (WNRB-LP, 93.3 FM, 5-6 PM) with a new episode as well. Last week was a shortened version of the show where I talked about my concerns with Weston’s proposed chronic nuisance ordinance. I cut the show off a little early so I could attend their public safety meeting at 6:00 PM. No action was taken, instead the committee decided to create an ad hoc committee to look at and draft the new ordinance. I have been asked (and have agreed) to serve on this committee.

The week before last we startied talking about the new Lead Based Paint remodeling rules that will take effect in April of next year. Last week’s show was pretty much just some general background information on what some of the largest hazards are when it comes to Lead Based Paint; and thus why this new rule is coming about. We will continue this week by getting more into the specifics of what the rule is and how to comply with it.

After the Public Service Announcements the station asks me to do, we will continue on with that topic as I really don’t have any significant questions that have come up in the last week or two. However, we did have three really good questions that I covered on that radio show week before last.

The first was about getting out of a rental agreement that had some kind of “winter clause.” Depending on the type of agreement it was, it may actually be pretty easy.

Landlords put “winter clauses” (or a condition in the lease that a tenant cannot terminate the rental agreement during the winter months) because they don’t want the property to come vacant during the winter. There is less risk of damage to a property if it is occupied. If the heat goes out, a tenant will call. If the property is vacant and the heat goes out, the landlord may not find out about it until pipes have frozen. Also, in duplexes and homes, often the tenants are responsible for snow removal when the properties are occupied (or at least under lease).

Now, if there is a lease for a term of one year, say from January 1st to December 31st, however there is ALSO a provision about the tenant not being able to vacate during the winter (often this means November through February), there is a conflict. Because, when a lease ends, the lease ends. Period. Forcing a tenant to stay a few months past the lease end date is basically an automatic renewal and both WI SS 704 and ATCP Rule 134 do not allow automatic renewals in residential leases unless the landlord takes certain specific steps. If this is the situation, I would definitely consult with an attorney familiar with landlord-tenant law because there is a very very good chance that winter clause is not enforceable by the landlord.

If the agreement is periodic in nature (for example, a month-to-month that limits the ability to move out in the winter), the situation becomes more complicated and the law is up for interpretation. A good friend of mine is an attorney who does specialize in landlord-tenant law, and we disagree on this issue. We truly won’t know who is “right” until a precedent-setting court case makes the final decision, but to be fair, I should give you both my opinion on the matter as well as his.

In his opinion, this falls under the same automatic renewal law. A month-to-month agreement basically renews itself each month. However, a winter clause means that during the winter, the lease renews itself for 3 to 5 months automatically. And, under the law, if it is going to automatically renew, the landlord has certain notice requirements to the tenant. If the landlord did not comply with those notice requirements, the “winter clause” is not enforceable by the landlord against the tenant. I disagree. The law in question refers specifically to “leases” that automatically renew. And, the law goes further to define what a lease is. A periodic rental agreement (such as a month-to-month) is not actually a “lease” as defined by statute. Because a month-to-month agreement is not a “lease”, the law that pertains to automatic renewals of “leases” should not pertain to periodic rental agreements. It comes down to an issue of letter of the law vs. intent of the law. The final decision will some day be made in court with case law. But until then, the answer of whether you can get out of a winter clause really depends on who has the better attorney.

We also had a question about getting a money judgment against the spouse of someone serving on active duty in the military. The person asked the question because you cannot get a judgment against someone in the military. I did correct them on that statement, as there is some misunderstanding there. Yes, you can get a judgment against someone even if they are on active duty, however the court cannot award a default judgment against them for not showing up in court. Defending those things that our country stands for is a pretty good excuse to not show up for a small claims hearing. Just because the court cannot award a judgment by default does not mean that you can’t get a judgment if money is owed. There are just additional steps that need to be followed and the process can take a number of months.

The rule that protects the service member (the SCRA) does NOT necessarily protect the spouse or dependant. So, yes you can still pursue a money judgment against them (a judgment for eviction is different, and again has more steps). Now, with Wisconsin’s marital property laws, if you get a judgment against the spouse, do you now have a judgment against both? No. Yes, both parties are liable for the debt, however a judgment allows for certain collection actions, such as wage garnishment. You can only go after the wages of whomever you were awarded the judgment on.

Finally, can you discriminate against illegal aliens or are they somehow a protected class? Yes, you can discriminate against them (at least as of right now you can). Remember, country of origin is a federal (and state) protected class. You cannot take into consideration whether or not someone was born here. But their legal status is in no way protected. As a matter of fact, there are many cities all over the country passing rules that would make it a criminal offense to rent to someone who is here illegally.

There is a summary of what we covered two weeks ago. Again, last week we talked about the Weston chronic nuisance ordinance and as that progresses, I will keep you, my readers, informed. Tonight, we talk about the new lead-based paint renovation rules. Until then, HAPPY RENTING!

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About drrent

Wausau, Wisconsin Landlord, past president of the Wisconsin Apartment Association, Host of the Dr Rent Radio Show on WNRB-LP, 93.3 FM, Wausau, WI
This entry was posted in Illegal Aliens, Questions, SCRA, Winter Clause, WNRB and tagged , , , , . Bookmark the permalink.

One Response to Winter is Coming, But Can I Move?

  1. Brittancus says:

    There should be emphasis on E-Verify being adopted by every business in America, mandatory or not? Now that it’s locked into the US workers psyche, it should be evident to the pro-illegal immigrant groups that–THE PEOPLE–are not letting go of this computer illegal immigrant enforcement application without a fight. It has been ridiculed and ostracized by the US Chamber of Commerce and subjected to federal lawsuits by the anti-sovereignty groups as the ACLU. I’m not one for conspiracy theories, but when the Council of Foreign Relation intolerable globalist and internationalists get involved with America’s immigration face-off, you really wonder what their true agenda is? GOOGLE– across the Internet and understand their plan for the free flow of low income labor in every available industry including Agricultural jobs.

    This quasi agency was the machine involved with the inception of NAFTA. Coincidentally, I recall that President Obama and his administration addressed the general public that he would renegotiate the treaties of NAFTA and CAFTA? So far this has not materialized, nor has his promise to implement an open transparent government? He is following the same illusory lines as the Bush presidency, other than National security–remaining secretive?

    E-Verify is a very powerful immigration tool that is a composite of the SAVE ACT. Around the country it’s building in momentum as more and more companies are intending to use it? It could additionally have multiple future uses, including detecting illegal aliens applying for driver’s licenses. It could also be adapted to apprehend any foreign nationals who apply in any health care reform or any other government benefit. By overturning the 1986 Immigration legislation and enacting a new AMNESTY the American population lose culturally and financially. Another possibility is checking the status of individuals admitted to higher education or schools. Its availability is a free service on the web, by accessing both Homeland Security and the Social Security databases. On an ongoing basis it is seemingly the principle tool to detour anybody who is stealing jobs from the legal population.

    It almost succumbed to Democratic leadership, because both Sen Reid and Pelosi had an ulterior motive to kill E-Verify and other immigration enforcement weapons. Having massive illegal immigrant occupation in both Nevada and California and an escalating need to financially support the millions already thriving in all Border States. YOU CAN HELP AMERICAN WORKERS IN THIS JOBLESS SETTINGS AND HALT ANY NEW AMNESTY BY CONTACTING YOUR POLITICIANS AT 202-224-3121. NUMBERSUSA, JUDICIAL WATCH & CAPSWEB have many of the true answers for you to decide.

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