I Got a 5-Day Notice, How Long Do I Have to Move?

So far so good in surviving my busiest week of the year. There have been some highs and some lows, but so far everything is falling into place. My trailer is loaded with all of my fireworks equipment, I am in possession of the shells for the Pell Lake, Wisconsin fireworks show, and I have resupplied all of my crew gear. I still need to flush the antifreeze out of the boat’s plumbing system, but that sounds like a good project for tonight after the Dr. Rent Radio Show.


Speaking of the radio show, I have not had the chance to pre-record it, so we are going to have a LIVE version of the show tonight. We had a Wausau Housing Task Force meeting yesterday where the topic of discussion continued to be landlord licensing. We also discussed chronic nuisance ordinances as well as rent abatement proposals. To be brutally honest, it wasn’t a good meeting to be a landlord at. I will share my thoughts of yesterday’s meeting on tonight’s show.


In addition to this topic, carpet cleaning has been a recurring theme lately. I have had at least three different questions come to me in the last week about carpet cleaning, two from landlords and one from a tenant. In addition, I presented my Top Ten class to the Wausau Area Apartment Association this last Tuesday, and a great deal of time was spent on this topic as well.


Our main topic for tonight is also one that seems to be coming up more often. It is a topic that will be affecting some of the tenants in a couple of downtown properties that I manage. I also have received two different calls on this over the last week, and that question is… what are a tenant’s rights when a landlord is being foreclosed on.


Last week we touched on some issues that came up during Attorney Andrew Schmidt’s Rent Smart class that he did for the UW-Extension office here in Wausau. One involved tenants-at-will. This is a situation where the tenant has the right to live in a property, but with no rent being paid. Examples of this is if you have a relative who is going through some problems so you let them stay in your spare room for a while, or the most common instance is when a person lets their boyfriend/girlfriend move in with them. Both of these situations fall under landlord tenant law. Relationships end, and when they do, we have all heard the stories of one half of the couple throwing the other half’s things out on the curb. Believe it or not, that is an unlawful eviction. That boyfriend or girlfriend is very likely a tenant-at-will and has certain rights under Wisconsin’s landlord-tenant law. One of those rights is 28-days notice to vacate (similar to a month-to-month agreement), and another right is that they cannot be forcibly removed except through a court eviction process.


A complicated question involved mold, and when mold makes the unit uninhabitable, what can the tenant do. If the unit truly is uninhabitable, the tenant has the right to either break the lease and move out without penalty, or reduce the amount of rent they pay to account for this diminished use. These options are summarized in WI SS 704.07 (4). However, the first question that needs to be answered is does the mold make the unit uninhabitable? Different people have different reactions to different molds. There is some mold that will cause no issues with you, but could make someone else deathly ill. Allergies and breathing conditions like asthma all play a roll in what a hazard mold really is. Mold is around us every day, it is in the air we breathe. Once we can determine a cause and effect relationship, the next question is what caused the mold. Mold needs two things to survive, food and moisture. Food is everywhere as drywall is everywhere. But, what was the cause of the moisture. Is it an unrepaired window leak, which would arguably be a landlord issue? Or, is it because of tenant living conditions and habits, which could make the presence of mold a tenant-caused problem. The right to vacate or abate rent established in Wisconsin law doesn’t apply if the situation was caused by the tenant. If mold is an issue for you as a landlord or a tenant, you are definitely in a situation where you are going to need expert advice and guidance.


Another similar question that came up was about pipes freezing and breaking, and whether this was the fault of the landlord because the pipes froze because they were located in a badly-insulated exterior wall; or if it was the fault of the tenant because they left the unit at 45 degrees when they went on vacation to Florida, and had the unit been left at 60 degrees, the pipes would not have frozen even with where they are located. Welcome to lawyer land. I don’t even want to speculate who a court might say is at fault because I think I could give some pretty valid points on why it should be the other guys fault no matter which side of this argument I was on.


I had received a call from a tenant who is being billed for carpet replacement by their landlord. The landlord did a walk through with the tenant prior to the carpet cleaning arriving and the tenant was told that everything “looks okay” and the few minor stains should come out. Twenty days later, the next thing they here from the landlord is that carpet needed to be replaced and the cost of replacement ate up the security deposit, and in addition more money is still owed the landlord. Can a landlord do this?


I had to of course ask more questions. My first question was whether the landlord notified the tenant in writing at the time of the walk through that there were no damages. The answer was no. Both the landlord and the carpet cleaner THOUGHT that the carpet would come clean. But neither said it WOULD come clean. Next, I asked whether the tenant was being billed for replacement of carpet in the entire unit or just certain rooms. The tenant indicated it was just two rooms and the tenant admitted that the carpet in those two rooms were stained, but as stated before, the carpet cleaner thought they would come out. I next asked if they were charged the total cost of the carpet replacement. They said no, they were being charged half the cost. The landlord said something in the written notice about a 5-year life of the carpet, and the carpet was 2 ½ years old.


My answer to the tenant was it sounded like this landlord knew what they were doing. They didn’t charge for all the carpet, only the damaged carpet. They didn’t charge the full cost, but pro-rated the cost for the life of the carpet (they were very generous with this pro-ration as I personally calculate a 10-year life, and if my tenants damage 2 ½ year old carpeting, they are picking up 75% of the bill instead of half). The tenant was concerned about not learning about this until 20 days later, however the landlord does have 21 days to get those charges that are going against the deposit put together, so 20 days is just in time.


The only question I could not answer had to do with whether the carpet really NEEDED to be replaced. There is some amount of staining that yes, you need to be replace the carpet. But, it is unreasonable to charge for carpet replacement if there are one or two small stains that are hard to notice. That is a judgment call and one that I couldn’t make. If the landlord took the tenant to court to recover the cost of the carpet replacement, they would have to prove in court that replacement was needed and repair or a simple damage charge were not possible or reasonable.


Our main topic came from a question that was asked by someone who works at the United Way with their 211 line. They will get people calling saying they got a 5-Day notice from the landlord, how long do they have to get out? If they are not out in 6 days, will they come home to find their stuff gone or on the curb? If they pay what is owed, can they stay?


There are three types of 5 day notices. Assuming the notice was not for gang or drug activity, or not for domestic violence, then yes, if what ever the problem indicated in the notice is fixed, then the tenant need not move. However, if a 14 day notice was received, the tenant has no right to cure the breach (or fix the problem).


Legally, the landlord cannot physically remove you from the property. Only the Sheriff can do that, and only with a court order. Once those five days end, the landlord has to file and eviction lawsuit, there is a court date, possibly a hearing, and only then will the court give the sheriff permission to proceed. This takes time, anywhere from 3 to 5 weeks here in Marathon County.


So, how much time do you REALLY have to be out if you are tenant and got a 5-Day Notice? About a month. However, if you wait that full month, there will be issues. If you do force the landlord to file the eviction action, that eviction will show up on CCAP and will make finding a quality rental property in the future much more difficult. In addition, the landlord can sue for double rent for every day you are there from the end of the 5-Day until you are out. You may think that you are uncollectible, but that judgment will be good for 20 years. A lot can change in 20 years. 15 years later, you might find your paycheck 25% lower because the landlord garnished your wages. It happens, I have done it.


If the notice you got was not from the landlord but from the Sheriff. If the Sheriff had a form called a writ, and the sheriff said you need to be out by tomorrow, then you truly only have until tomorrow.


Well, off to get bills entered and other Thursday work done. Until tonight’s radio show… HAPPY RENTING!


The Dr. Rent Radio Show can be heard Thursdays from 5 PM to 6 PM on WNRB-LP Radio in Wausau, 93.3 FM. It is also broadcast online. The live-stream feed can be found by clicking the “Hmong Radio” link at http://www.wausauhmong.org.

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, Carpet Cleaning, CCAP, Double Damages, Fireworks, Foreclosure, Housing Task Force, Questions, Small Claims, United Way, WAAA, WNRB and tagged , , , . Bookmark the permalink.

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