21 Days for the Deposit… but… 21 Days from When?

I did it again, an entire week went by without a blog entry. But, as always, I have really good excuses. This weekend I was out of town with meetings in Baraboo on Saturday and Waukesha on Sunday. My work week so far has gone late into the night. Monday after work, it was off to Wausau City Hall to attend the Public Health and Safety Committee meeting. I was there for the dog issue, but had to leave before they got to the issue about defining blight as I had to be to the Channel 9 TV studio by 7 PM as our focus group was meeting to come up with the questions that we were going to ask the candidates for US Senate on 10/15, and the candidates for governor on 10/22.

On Tuesday, it was back to City Hall again after work. The Plan Commission was looking at whether or not the conditional use for the indoor skateboard park on Wausau’s East Side should continue, or if it should end. That is a property I manage and since the property owner was not able to attend, I went in his place. The Commission had a few questions for the operators of the skatepark, and based off of his responses combined with almost no neighbor complaints, the “sunset provision” of the conditional use was removed. I left the meeting right after that because my class offerings I talked about last week started on Tuesday. I had a pretty full classroom for my “Top Ten” class. This coming Tuesday, the class is going to be collection strategies, and it is not to late to contact the UWMC Continuing Education office to sign up.

Yesterday I was out of the office for most of the day. One of Milwaukee’s apartment associations, the AASEW (Apartment Association of South East Wisconsin) had their annual trade show and educational conference. Their president, Attorney Tristan Pettit, is someone whose blog I follow closely (and have recommended in a number of my blog posts). It was great to finally meet him in person, plus there was a lot of great information given out to their attendees. Even I learned something.

Actually, attending that conference in Milwaukee is going to benefit the listeners to the Dr. Rent Radio Show (broadcast Thursdays from 5 to 6 PM on WNRB-LP, 93.3 FM in the Wausau area) because we are going to do another show with no main topic, only questions… and the majority of those questions came from attendees at yesterday’s conference.

We will start off with the question we didn’t get to last week, discussing the legality of re-renting fees (flat charges a landlord charges a tenant who wants to break the lease.) The next question will tie into last week’s question about when you have to get that security deposit back. The landlord ended a month-to-month agreement for part of the area rented by the tenant, but not the entire area. How does the security deposit get handled? Another question that came up was the situation where the tenant vacates at the end of the term, but they had some guest living there who was not on the lease, and they haven’t moved. Finally, there was a discussion about the effectiveness and legality of “bribing” a tenant to move instead of going through the eviction process.

This is the second week in a row that the show is entirely questions, and as you know, those are my favorite shows. Last week we talked about a situation where the landlord has a couple of non-related people on the lease, and one of them is a problem. Everyone wants that person out, the landlord and the other roommates. They have discussed evicting everyone then doing a new lease with the remaining roommates, the only problem is, that eviction will show up on the CCAP record of everyone. Does the landlord have any other options? Yes they do. Leases such as these fall under a legal term known as “joint and several liability”. That basically means that the landlord can hold all of the tenants jointly liable for all amounts owed. If tenant A didn’t pay “their share” of the rent, that is irrelevant and there is no “shares” as far as the landlord is concerned, either the entire rent is paid or it is not, and if it is not, ALL PARTIES ON THE LEASE can be held liable. However, it is not only joint liability, but also joint and SEVERAL… which means that the landlord can choose to “severe” those responsibilities. The landlord can choose to file an eviction action and only name the single tenant they want to evict. The landlord can hold everyone responsible, but is not obligated to. The landlord could negotiate a settlement with the other parties on the lease without taking them to court, and then only file an action against the problem tenant.

I have gotten three calls in the last two weeks asking the same question. Can a landlord charge a tenant for carpet cleaning? My favorite answer applies… maybe.

ATCP 134.06 specifically prohibits taking charges for ROUTINE carpet cleaning out of the SECURITY DEPOSIT. So, does that say that a landlord cannot charge for carpet cleaning? Technically no. This is a two part question; first, can a landlord take carpet cleaning charges out of a security deposit? That answer is no if the cleaning is routine in nature because of normal wear and tear; however that answer is yes if the cleaning is required because of excessive wear or some type of damage or neglect. Where is that line between “normal wear and tear” and “damage or neglect”? THAT is the question… as there is no firm line. That is a judgment call.

But, what about charging for carpet cleaning separate of the security deposit. The law doesn’t address this directly. ATCP 134.06 only addresses charges that can and cannot come out of a security deposit. Once you take the security deposit out of the equation, you take this rule out of the equation as well. The issue of charging tenants for cleaning (which includes carpet cleaning) separate from the deposit is not directly allowed or disallowed in the statues or the ATCP rules. Therefore, if you talk with attorneys who tend to represent landlords, they will say that charges for items like this are allowed, as long as they are in no way tied to the security deposit. On the other hand, if you talk to an attorney who tends to represent tenants, they will give the opposite answer. Until a case like this goes high enough in the court system to set a precident, my personal answer as to whether or not you can bill for carpet cleaning separate from the deposit depends on your comfort level on convincing a judge that nothing in the laws prohibits it.

Finally, we talked about returning the deposit. Most people know you have 21 days to get the deposit back. But, when do you start counting those 21 days. I could spend a blog post or two just on the definition of “surrender”… and to be brutally honest, just because the law defines surrender and when to start that 21-day clock ticking, that does not mean that the court will agree with the law, they may use their judgment on when that 21 day clock should have started. However, in preparing a class I will be presenting at WAA’s educational conference this year, I wanted some clarifications as to when you start counting. When is Day 1? Is it the day of surrender (which would be the last day of the term in most cases)? If this is the case, then the 20th of the following month would be day 21. However the day AFTER surrender is day 1. So, if the term ends September 30th (and assuming that is also the date of “surrender”), Day 1 is October 1st and the deadline date for the deposit would be October 21st.

Tied in with that is knowing exactly what must happen by Day 21. Is that the day you have to have the deposit (or the letter with itemized charges as applicable) in the mail? Or, is that the day when the tenant needs to receive it? Day 21 is the day the landlord needs to have it in the mail. There is no legal obligation to get a certificate of mailing or mailing it certified; however if you want to do one of those things to help prove you met the deadline, they are inexpensive alternatives to defend against a lawsuit that would result in double damages AND the court ordering you to pay the attorney’s fees of the tenant.

Well, I was out of the office yesterday, so time to dig through my in box and see if I can get caught up. Hope everyone has had a good week so far and until the show hits the air later today… 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 AASEW, Carpet Cleaning, Evictions, Questions, Security Deposit, UWMC, WNRB and tagged , , , , , , , . Bookmark the permalink.

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