I have had three different people run into me and indicate their disappointment that my blog entries have not been as frequent as they used to be. I do apologize for that. Between year end tax preparation, frequent snowfalls, and some personal things going on, time has been at a premium. Since I am down in number, I am going to make up for it in length.
Last Thursday, I promised to do a recap of the Dr Rent Radio show topics covered two shows ago over this past weekend, and I never did get around to that. So, let’s do that now.
If you have taken some of my classes, you have learned that if there is a non-rent breach on a month-to-month rental agreement, the only valid notice is the 14-Day notice, which does not allow the tenant the right to fix the problem. The tenant must vacate. However, often landlords don’t want the tenant to leave, they would be perfectly happy if they stayed if they just fixed whatever the lease agreement breach was. Unfortunately, issuing a 14-Day notice and then allowing the tenant to fix the problem and stay can have the effect of making future 14-Day notices ineffective. So, to landlords who would prefer to issue a 5-Day notice with right to cure on a month-to-month agreement, I tell them that is exactly what I do. Often, just that 5-Day notice will get the tenant to comply. After all, I don’t want the tenant gone, I just want them to follow the rules. However, if the tenant doesn’t comply (or knows the 5-Day notice is not a proper notice), before an actual eviction notice can be filed, the proper notice (a 14-Day) must be issued.
I have both landlords and tenants talk about landlords who will charge for minor wear and tear items on a security deposit and what the repercussions for that are. The most recent question came from a landlord whose full time job is owning a professional cleaning company. When their son vacated the apartment, they did the cleaning. However, the landlord still found things to charge for. Basically, the landlord can only take money from the security deposit for damage, waste or neglect. Normal wear and tear items cannot come out of a deposit. Now, I will openly admit that often, that line between neglect and normal & wear and tear may be fairly thin and up to interpretation. However, if a tenant feels that the deposit was withheld improperly and they have spoken to the landlord about it and not come up with an agreeable solution. The tenant has the right to take the landlord to small claims court. And, although this is not cheap (nearly $100 in filing and service fees if in the same county), if the tenant thinks they have a really good case, they should do this. If they win in court, they will be entitled to double the amount that was wrongfully withheld, plus court costs, plus reasonable attorney’s fees.
I received a question from a landlord who had an applicant who was worried about identity theft and therefore refused to give out their social security number, which was requested on the application. This does happen from time to time. Most of the time it is someone worried about giving this personal information out. But, there are times when someone is trying to hide who they are or their credit history. This applicant pointed out that per law, the landlord cannot require the applicant to give them their social security number. And, that statement is 100% true. However, WITH THE EXCEPTION OF MADISON/DANE COUNTY, the landlord has no obligation to accept an applicant when the application has not been completely and honestly filled out. If a landlord is going to run a credit report, they will need a social security number and date of birth. The applicant has every right to refuse to give this information, and in most of the state, the landlord has every right to deny the applicant for that reason.
We then had a question about what will void a lease. Although there are some lease provisions that could potentially void a lease, only a few things have been determined to make a rental agreement void. First, if a residential lease automatically renewed because of a renewal provision in that lease, and proper notice of that renewal was not given to the tenant, the tenant has the right to void the lease (WI SS 704.15 and ATCP 134.09 (3)). If a provision of a lease restricts a tenant’s right to call for law enforcement, health or safety services, that lease is void (WI SS 704.44). If a landlord is going through a foreclosure action and enters into a new lease with a tenant without notifying them in writing, as a separate part of the lease, that a foreclosure action is in progress, the tenant may void the lease (WI SS 704.35). Finally, the Wisconsin Supreme Court decided that having the lease provision requiring tenants to pay landlord’s legal fees, which is prohibited per ATCP 134.08 (3), will void the lease. I have heard many people say that any lease provision that is prohibited per ATCP 134.08 (there are seven of them) will void the lease. That is not technically true. The court decided specifically on just item number 3 of those 7. However, it would not surprise me that if a different item was in the lease, if a lower court would use the Supreme Court ruling on item 3 to set a precedent for any item under 134.08.
The main topic two shows ago was about some of the tenant protections when a landlord finds themselves in foreclosure. This would make a good stand alone blog entry at a later date. Our Dr. Rent Radio Show from last week was also all questions.
We had an issue where the tenant sublet the apartment, the sublessors paid the tenant, but the tenant did not pay the landlord. Who does the landlord go after? Basically, your agreement is with your tenant; that is who you have to pursue for collection (and possible eviction). However, it would not be a bad idea to talk with the sublessors and maybe have them apply for the unit. You might be able to make everyone happy by accepting an early surrender of the lease from your original tenant and entering into a new agreement with the sublessors. Keep in mind though, if you sign a new lease with the sublessors without getting some kind of release from your original tenant, you now have two valid leases for that unit which could be a problem if the original tenant would ever want to move back in.
A question came from a landlord who took my class about something that happened to them in court. They had a tenant who mid-way through the lease wanted a pet, and the landlord changed their normal no-pet policy to allow them to have one. However, the pet ended up doing a great deal of damage. When they went to court, the judge said that because the landlord changed the rules, they are not entitled to any damages because by allowing a pet, they allow the damages that come with pets. That is not entirely true. A landlord is always allowed damages from neglect, but is never allowed damages from normal wear and tear, and we have already said that can sometimes be a blurry distinction. The judge was correct that the level of “normal wear and tear” with a pet is justifiably different than without one. However, if the damage was caused by neglect (cat urine soaked carpet would probably be the most common example), that should still be allowed. Cats don’t, as a rule, do their business on the carpet. They are clean critters and prefer to do their business in a litter box. However, if the litter box is not maintained and cleaned regularly, they won’t go potty in a dirty potty. Just because a landlord allows cats, that does not now mean that they must accept urine stained carpet as “normal wear and tear.” As a household with 4 cats, I can tell you that with proper care, cats won’t wee outside their box.
It appears that covering two weeks worth of questions will take up a very long blog entry, well bear with me, we just have two more to go.
This month, I have been in court with three different eviction actions. On two of them, we were working out payment plans with the tenants. And, I would rather work something out than evict. In one case, I adjourned (pushed back) the case for a month. In the other case, we did a settlement agreement (known as a Stipulated Dismissal). What is the difference? With an adjournment, you are simply delaying the case to give the tenant time. If the tenant gets the payment in, you can then simply dismiss the case. The downside is that if the tenant doesn’t do anything with the extra time they are given, you still have to show up in court and go through the entire process. With a stipulated dismissal, the case is basically dismissed based on whatever payment agreement was set up in writing. However, if the tenant doesn’t meet the agreement, instead of going back to court for a trial, an affidavit needs to be filed indicating that the agreement hasn’t been met and the eviction will be awarded without a trial.
Finally, I still run into both many tenants AND landlords who are surprised that when a tenant is evicted, it does not end their responsibilities under the lease, including paying rent. There are two parts to a rental contract. Part one is known as the “tenancy”, which is the tenant’s right to occupy the property. Part two is the contractual obligation of the tenant under the lease, such as the requirement to pay the landlord rent. During an eviction action, only the “tenancy” is terminated. Unless the landlord agreed to it, the tenant is responsible for the remainder of the contract term. The landlord does have a requirement to make a reasonable effort to find a new tenant. So, just because a tenant vacates early and turns in the keys… or is evicted… unless the landlord agrees, the tenant is still on the hook for rent and any other contractual charges and responsibilities (such as utilities).
If you remember from last week’s post, I had a bunch of questions I was going to cover on the air and I only got about half way through that list. We will pick up where we left off, so this week we will cover…
Carbon Monoxide Detectors… who provides them, who maintains them, when are they not required?
You have a month-to-month rental agreement with a 60-Day notice provision, does that mean that the agreement ends at the end of the month (like a normal month to month), or 60-Day after giving the notice?
The tenant is in breach of the lease, but the lease is longer than one year. Now what?
The 5-Day Notice expired, can’t the landlord just go and change the locks? When did that rule change?
Another question just came up this week. A tenant vacated owing some money, but left some things behind in the apartment. The landlord is telling the tenant that they need to pay what is owed on the account to get their items back.. is this legal?
The Dr. Rent Radio show can be heard most Thursdays from 5 to 6 PM on WNRB-LP, 93.3 FM. We can also now be heard online, at http://22.214.171.124:88/listen.pls.
Just a quick reminder, there will be no Dr. Rent Show on February 17th (I will be out of state) or on February 24th (I will be attending an important Wausau Housing Task Force meeting). I will be back on the air after that. Try not to miss me too much.
Until then… HAPPY RENTING!!!