Should It Be My Fine – If It is Not My Violation???

An article covered by WAOW (TV Channel 9) on Friday, December 3rd demonstrates the need for some changes in ordinances in Wausau. One of the most common things heard during the three hearings the Wausau Housing Task Force had was that the responsibilities of landlords and tenants need to be better defined. Landlords should not be held liable for things outside of their control, and the same holds true for tenants. After those hearings, the constitution of the Task Force was changed to include stakeholders, including a landlord (me), a tenant advocate, and a single family home owner. The task force has started the discussion of landlord-tenant responsibilities under the law, but has not had the chance to finalize the discussion.

However, the need to finalized the details of landlord-tenant responsibilities under Wausau’s city codes is evidenced by Friday’s new article.

A local Wausau landlord was fined for a housing code violation and taken to court. The violation was a couch outside of a rental home.

In the interest of full disclosure, I want to make it clear that I have not talked to this landlord about this situation and gotten his side of the story. I have also not talked to the city to get their side of the story. I just want to describe the general situation as it was reported and the fatal flaw in the process.

The way I understand it, the tenants had an old couch and an old TV sitting outside of their rental property. Few would dispute that this is the type of situation that shows lack of pride in a neighborhood and is a contributing factor to blight. It is my understanding that the landlord was notified of the housing code violation, who in turn notified the tenant. The tenant removed one item, but the other remained. The City then contacted the landlord again, and after what I presume is the City’s assumption that the landlord didn’t do anything about the problem, fined the landlord and is taking them to court. (Again, having not talked to either party – I am making some assumptions.)

The landlord is fighting this citation claiming that it was out of their control to do anything about the problem. And, with only the facts given in the news article, I would tend to agree – and here is why.

When a tenant is in violation of a rental agreement (and per state law, being out of compliance with housing codes is a violation of the rental agreement), the landlord really only has one tool in the tool box. Eviction. Wisconsin State Law doesn’t really allow any tools that allow the landlord to use a little finesse in enforcing a lease. The only thing in there… an 8-pound hammer.

So… the tenant has some furniture outside and you (the landlord) get a letter from the inspections department. I can honestly say that this has happened to me. What does a landlord do? Well… I contacted the tenant letting them know about the letter I received and told them that if they didn’t do something about it… I would file for eviction and pass any fines I got onto them. That did the trick. And it normally does the trick. However, what if the tenant’s had not complied?

Well, then I would have had to have gone through with my threat.

But… let’s be practical for a second. I have been hovering at about 25-30% vacant for the last 24 months or so. If I have a tenant who is paying the rent and the only problem that I have with them is one couch that the inspections department doesn’t like… is that something worth making someone homeless over?

True, different people take you seriously at different stages of the game. However, if I do the 5-Day notice and they don’t take me seriously, I have to file for the eviction. Yes, maybe once the Sheriff serves the summons they will decide to move the couch rather than end up homeless… but is that an option?

Very often, these rental agreements have a month-to-month term. And, according to WI SS 704.17 (2)(b), in the case of a non-rent breach in a month-to-month agreement, a 5-Day notice can’t legally be used. Again, the landlord has one tool in the toolbox, a 14-Day notice.

What is the difference? The 5-Day carries with it a right to cure. The 5-Day notice says please fix the problem within 5 days or I will be forced to file an eviction action in court. The 14-Day notice basically says you have two weeks to leave, if you don’t leave I will file an eviction action. Note, there is nothing in the language that allows a right to cure. As a matter of fact, allowing a tenant to cure a breach after a 14-Day notice has been issued can result in not being able to enforce future 14-Day notices.

So… on a month-to-month agreement if the tenant doesn’t do something about the couch, the landlord has two choices. The landlord can do something about the couch, but run the risk of being charged with theft (the landlord has NO RIGHT that I am aware of to move tenant property while the tenant is in possession of the premises); or the landlord can evict the tenant… issue a 14-Day notice. And if the tenant doesn’t leave after those 14 days, file and eviction action – EVEN IF THE TENANT MOVED THE COUCH IN THE MEANTIME.

Now… imagine going to court, and telling the judge the reason you are evicting the tenant. Not because of rent, not because of criminal behavior or a serious breach, but because of a couch outside. The judge can use their discretion to decide if the tenant’s breach of the agreement was significant enough to be a material breach. The judge can say that the couch alone is not a good enough reason and dismiss the case. Don’t think that couldn’t happen…. There are counties here in Wisconsin where judges have decided that being 1 month behind in rent is not sufficient to grant an eviction and the tenant needs to be two or more months behind before the judge is willing to evict.

So.. now the landlord gets hauled into court to pay fines because they did not fix a problem that under the law, they have really no legal ability to fix.

In this specific case, it is the tenant who is causing the problem. So therefore, it should be the tenant who the City should be pursuing for compliance.

The City says they want to do something about the blight problem. Sending more City money at creating essentially market rate apartments downtown will only make the problem worse. Fining a landlord for things that are completely out of their control also does nothing to help the blight problem.

When landlords have properties that do not comply with codes AND have the means and resources to bring them into compliance and choose not to.. that is where the City needs to get involved. When a landlord wants to bring the property into compliance but doesn’t have the resources, that is where the City needs to get involved. When landlords are putting in bad tenants because they don’t know what they are doing, that is where the City can get involved with education and training. When the landlord is doing what they can but the occupants of the property are causing the problem, that is where the City can help by exercising the rights the City has that the landlord does not have.

The City can work together with good property owners to address this problem… not just create new rules… but come up with programs that actually attack the vicious cycle that causes blight… or the City can just say they are doing things and keep following those paths that don’t get to the heart of the problem.

I will be interested to see how this current case plays itself out… and am interested to learn if there are missing pertinent facts in this case that were not part of the new article that play a role as to why the landlord should be liable for a tenant’s couch.

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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 14-Day Notice, 5-Day Notice, Blight, Education, Evictions, Housing Codes, Month-to-Month, Tenants, Wausau, WI SS 704 and tagged , . Bookmark the permalink.

One Response to Should It Be My Fine – If It is Not My Violation???

  1. Great post John. Lots of important issues addressed. In Milwaukee Co. It’s tough to get an eviction for some criminal activity, yet alone a couch outside.

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