Another week has come and gone and time for another installment of the Dr. Rent Radio Show. This is the second week of pre-recorded shows and I am starting to get used to the process. It took me nearly 3 hours to record my first 1 hour show, but on Tuesday evening, I was able to get tonight’s show recorded in about an hour and a half, not including the time it took to convert the file to MP3 format and burn it onto a CD.
The main topic of tonight’s show is a recent decision by the Wisconsin Court of Appeals as to whether or not a lease provision that requires tenants to pay the fees of a collection agent used by the landlord violates the attorney’s fees provision of the “Ag Rules”, specifically ATCP 134.08 (3).
Before hitting that topic, we cover a number of questions that came up in the last week. I had a question from someone who had heard about an occupancy rule of 2 per bedroom in Marathon County, and was wondering if the same standard was true in Portage County. The person also asked how many cats someone could legally have. I had an email inquiry asking where a good place was to get landlord-tenant forms. A question that had nothing to do with landlord-tenant law was now that I am pre-recording shows, when will they be available for download (or podcast)? One tenant wanting to break their lease that was longer than a year heard from an attorney that leases of that length were not legal or enforceable, is that true? Also, does a lease for a set term actually have to have a written set start date and/or end date listed on the form? Finally, a question came up from someone I met in court Tuesday afternoon. A tenant claimed they had no heat and therefore withheld their rent in full, and then the landlord evicted them – can they do that?
It seams like the number of questions are increasing, which is something I really enjoy. I am spending over half of my shows covering questions. My favorite shows are the ones where the entire show is spent answering questions, that way I know I am covering topics and issues that you want to know about. Questions can be left in the comment section of this blog, or can be emailed to me at email@example.com.
Last week’s show was also question intensive. We had a question about not accepting applicants who are not from Wisconsin (basically because CCAP becomes useless as an underwriting tool). Although there is no outright law that would make this illegal, there would be adverse impact problems. Adverse impact is when you take actions that are not discriminatory in nature, and the intent was not illegal discrimination, but the end result was illegal discrimination. Here, the intent was to be able to use CCAP to screen all applicants for criminal background. However, by excluding people not from Wisconsin, you are also by default excluding people not from the U.S. And, national origin is a protected class. Therefore, in my opinion, you would not be legally allowed to require Wisconsin residency of all applicants.
Following up with screening, we had questions about if you could hold someone’s criminal record on CCAP against someone if those charges had not resulted in a conviction. The short answer is no. If someone was acquitted or found not guilty; or if the charges were dismissed, then those charges cannot be used to deny someone. This also applies to civil actions like evictions. You can not establish screening criteria to deny anyone who had an eviction case filed against them regardless of outcome. You could only establish a policy for evictions where the judgment was awarded to the landlord.
In looking for a screening tool “silver bullet”, there is none. Personally, we do housing reference checks, CCAP checks, and source of income verification. A credit report is very important to us, because it does allow us to verify information on the application, as it will list addresses and other names used. It will also tell us if the social security number provided is legitimate. As explained during my visit to the CWAA last week, the only way to be 100% sure that a tenant is a good risk is to not rent the property out in the first place. You can minimize risk, but you can never eliminate it.
A different person was looking at adding common area laundry machines to a rental unit and wanted to know if this would be allowed by code. Probably. Depending on where the property is located, you may be required to get a building permit for the plumbing and electrical changes needed for the machines. Also, if the machines are in a common area, they can’t block or limit the use of a fire exit. They also wanted to know if this door to the unit was now locked, would the fire department need some type of master key. You can check with your local fire department, some (but not all) municipalities require something called a Knox Box. The fire department doesn’t need a key to your property per se. Instead, this Knox Box is basically a lock box that gets installed on the exterior of the building and a key to the building is put inside. Fire Departments then have a master key that open up these boxes if they need to gain entry. However, even with a Knox Box, depending on the emergency, they may still force entry to protect the property.
Finally, we had a brief discussion on the difference between the new CO detector laws regarding multi-family buildings (3-plex or more) and the law affecting single family homes and duplexes. Basically, the multi-family law is very specific and detailed about where the detectors are to be located. Depending on the floor plan and location of the fuel-burning appliances, you could have 2-3 per level. On the other hand, in single family homes and duplex properties, the requirement is one per level. Another key difference is that there are some pretty severe financial penalties for non-compliance in multi-family housing. However, there was no enforcement provision or penalty provision written into the duplex and single-family code.
Last week’s main topic was a summary of the latest project that Wausau’s Housing Task Force tackled. During the three hearings that the task force had last year, a common issue that came up was that landlords thought it was unfair for them to be held responsible for issues that were caused by the tenants. So, the Task Force looked at changes to Wausau’s housing codes and policies of who to go after for violations. At times this was a pretty interesting discussion, as not only am I a member of this task force, we also have a tenant whose job is an attorney and who is a fairly strong tenant-rights advocate. After a few hours of discussion (and no blood shed – LOL), here is what we recommended:
Personal Property Issues – If a property is occupied, these are actions where the City should pursue enforcement against the tenant. Once a property is vacant, the City will pursue enforcement against the landlord. (How a landlord handles these personal property issues after a tenant has vacated is covered under WI SS 704.05 (5).)
Vehicle Issues – The enforcement action will go against whomever is the titled owner of the vehicle. However, it would be the responsibility of the property owner to contact the police department and follow up with them about vehicle issues.
Lawn Mowing and Sidewalk Snow Removal – These will go against whoever is responsible. By default, this is a landlord problem. However, if the landlord can demonstrate that this was actually the responsibility of the tenant (for example, a provision in the written rental agreement making this the tenant’s responsibility), then prosecution and enforcement would transfer to the tenant.
Garbage and Recycling – City ordinance already requires that landlords provide garbage receptacles, so that is an enforcement action that would go after the landlord. This would include things like tenants not having garbage cans to put the garbage in. Other issues such as actually using the provided receptacles, or putting the garbage out on the wrong day or not bringing the empty cans back in, or not storing the cans out of the public view per current City ordinance would all be tenant issues.
Structural Issues – Whether they be outside or inside, structural/mechanical issues will be the responsibility of the landlord. Even if the tenant caused the damage, the City will pursue enforcement against the property owner. (If the tenant caused the problem, law does allow for the property owner to recoup those costs through a civil action. Depending on the extent of the damage, criminal charges may also be an option.)
Pet Issues – Everything from number of pets to barking dogs to pet waste outside, these are all tenant issues.
These recommendations went to the City Attorney’s office to get drafted into ordinance form. From there, they will come back to us for final thoughts before being sent on to the Public Health and Safety Committee. They will then have a public hearing on them. Depending on the public hearing, they will either be tweaked or go on to the City Council for approval. I am sorry, but I do not have a time frame for this.
Some of these policies are already starting to take place. When the inspections department is handling a violation that they feel is more a tenant problem than a landlord problem, they have a new form that they send to the landlord asking for the contact information of the tenant. The landlord has no obligation to return this information. However, if they don’t, then the landlord is ultimately responsible for compliance. The important thing is that the inspections department is willing to work with landlords on having the tenant held responsible for their actions. To do this though, the City will need to know who that tenant is and how to contact them. As with anything in life, the key to solving any of these problems is communication and working together. (That is a key that our leaders in Madison, and Washington DC as well would do well to pay more attention to.)
As always, thank you for stopping by and checking out my blog and thank you for tuning in, especially now that the radio shows are “Dr. Rent in a Can.”
The Dr. Rent Radio Show is broadcast (most) Thursdays from 5 PM to 6 PM on 93.3 FM, WNRB-LP in the greater Wausau area, and can also be heard online at http://126.96.36.199:88/listen.pls.