May 2, 2018 – The Landlord’s Omnibus Bill (Assembly Bill 771) signed into law by Gov. Scott Walker on April 16, 2018, makes significant changes to landlord-tenant law in Wisconsin, and also includes provisions that fall outside the landlord-tenant law area.
This article explains the major landlord-tenant changes under 2017 Wisconsin Act 317, effective April 18, 2018, including provisions on assistance animals, electronic delivery of certain documentation/information, emergency assistance, waiver and more.
Newly created Wis. Stat. section 106.50(2r)(bg) and (br) sets forth the law for: 1) animals that do work or perform tasks for persons with disabilities; and 2) emotional support animals (ESA), with respect to a tenant’s request to a landlord’s no-pet or limited-pet policy.
com tpettit petriestocking Tristan R. Pettit, Marquette 1995, is a shareholder and executive vice president of the law firm Petrie + Pettit S.C., Milwaukee, and is a past president and current board member of the Apartment Association of Southeastern Wisconsin, Inc. Pettit is co-author of a Wisconsin Landlord-Tenant Manual expected for release this summer by State Bar of Wisconsin PINNACLE Books®. He also publishes landlord-tenant blog. Reach him by phone at (414) 276-2850 or by com tpettit petriestocking email.
The following provisions apply to both ESAs and animals that do work or perform tasks for disabled individuals:
If a rental applicant or tenant has a disability and a disability-related need for either of the above, it is discrimination for a landlord to do any of the following because the tenant requests such an animal: a) refuse to rent; b) cause the eviction of; c) require extra compensation for tenant as a condition of continued residence; or d) engage in the harassment of tenant.
A landlord may request – unless the disability and disability-related need is apparent and known – that the tenant provide: 1) reliable documentation that the tenant has a disability; and 2) reliable documentation of the disability-related need for the animal.
A tenant that keeps such an animal shall accept responsibility for damage to the rental property caused by the animal.
A landlord may deny a tenant the ability to keep such an animal if: 1) the tenant is not disabled, does not have a disability-related need for the animal, or fails to provide the necessary documentation; 2) allowing the animal would impose an undue financial and administrative burden or would fundamentally alter the nature of services provided by the landlord; 3) the specific animal poses a direct threat to a person’s health or safety that cannot be reduced or eliminated by another reasonable accommodation; or 4) the specific animal would cause substantial physical damage to a person’s property that cannot be reduced or eliminated by another reasonable accommodation.
The following provisions apply only to emotional support animals (ESAs):
An ESA is defined as an animal that provides emotional support, well-being, comfort, or companionship to an individual but is not trained to perform tasks for the benefit of a disabled person. A landlord can require reliable documentation from a tenant with an ESA and that documentation must come from a licensed “health care professional,” which is defined as a physician, psychologist, social worker, or other health care professional who is: a) licensed or certified in the state of Wisconsin; and b) acting within the scope of his or her license or certification.
Act 317 includes a provision that says if a tenant or the tenant’s health care professional misrepresents that s/he has a disability or a disability-related need or that his/her patient has a disability or disability-related need for an ESA, that the tenant and the health care professional shall pay a fine of not less than $500.
Charging for a Landlord’s Time
Act 317 clarifies that “reasonable costs” as set forth in Wis. Stat. section 704.07(3) regarding tenant-caused damage to the rental property includes any material or labor provided by the landlord and that the landlord’s time may be charged at a reasonable hourly rate for the purchasing or providing of materials, supervising an agent of the landlord, and the hiring of a contractor.
Act 317 amends Wis. Stat. section 704.07 regarding untenantability and the abatement of rent, adding that a tenant may only abate rent if the untenantability of the rental unit is the result of a condition that materially affects the health or safety of the tenant or substantially affects the use and occupancy of the rental property.
Credit and Background Checks
Act 317 incorporates Wis. Admin Code section ATCP 134.05(4) regarding credit checks on rental applicants and increases the amount that a landlord may charge an applicant by $5, to $25 or the landlord’s actual cost, whichever is less.
A landlord may now also require an applicant who is not a resident of Wisconsin to pay for a background check up to $25 or the landlord’s actual cost, whichever is less. A landlord is required to notify the applicant of the charge prior to ordering the report and must provide a copy of any report to the applicant.
Electronic Delivery of Certain Documents and Information to Tenant
A landlord may now provide the following documentation and information to a tenant electronically if the rental agreement includes such a provision that the tenant agrees: 1) a copy of the rental agreement and any related document; 2) a security deposit and any documents related to the accounting or disposition of the security deposit and refund; and 3) any promise made by the landlord prior to entering into the rental agreement, to clean, repair, or otherwise improve the rental unit; and 4) a notice to enter the rental unit pursuant to Wis. Stat. section 704.05(2).
'Rent' Includes Late Fees
Act 317 created Wis. Stat. section 704.17(1g) and defines “rent” as including any rent that is past due and any late fees owed for the past due rent.
Incorrect Amount in Notice for Failure to Pay Rent or Other Amounts Owed
A notice for failure to pay rent or any other amount due under the rental agreement that includes the incorrect amount due will still be valid unless any of the following apply: 1) the landlord’s statement of the amount owed is intentionally incorrect; or 2) the tenant paid or tendered payment of the amount that the tenant believes to be due.
Consolidated Court Automation Program (CCAP)
Act 317 states that the Director of State Courts may not remove any case management information from CCAP for any civil case that is not closed, confidential, or sealed for the following time periods: 1) if a writ of restitution has been granted in an eviction, 10 years; and 2) if an eviction action has been dismissed and no money judgment has been docketed, 2 years.
Notarization of Summons and Complaint
A court may not require that a person filing a summons and complaint under Wis. Stat. ch. 799 have the summons and complaint notarized.
Under Act 317 an eviction, garnishment, or replevin action shall be scheduled for a hearing before the judge if any party “raises valid legal grounds for a contest” as opposed to prior law, which just required that a party “claim a contest exists” to obtain a hearing.
Service of Notice via Certified Mail
If a landlord serves a notice terminating tenancy via certified mail, proof of the certified mail from the U.S. Post Office is sufficient to establish that proper service was provided and a court may no longer request a completed affidavit of service.
Act 317 creates Wis. Stat. section 799.40(1s) entitled “No waiver by landlord or tenant” which indicates that it shall not be a defense to an eviction action or a claim for damages that the landlord or tenant has previously waived any violation or breach of any terms of the rental agreement including, but not limited to, the acceptance of rent, or that a custom or practice occurred or developed between the parties in connection with the rental agreement so as to waive or lessen the right of the landlord or tenant to insist upon strict performance of the terms of the rental agreement.
Emergency Assistance (EA)
Prior law required a court to stay an eviction if the tenant applies for EA. The Wisconsin Court of Appeals expounded that the stay may be in effect for only a “reasonable period of time.” McQuestion v. Crawford, 2009 WI App. 35.
Act 317 amends Wis. Stat. section 799.40(a) such that no EA stay may be granted after a writ of restitution has been issued and if a stay is granted it may not apply for more than 10 working days.
Representations to Court as to Preparation of Pleadings or Other Documents by Attorney for Pro-se Litigant
Act 317 amends Wis. Stat. section 802.05(2m) to state that if an attorney drafts or assists in drafting a pleading, motion, or other document for a self-represented person, the documents must contain a statement immediately adjacent to the person’s signature that “This document was prepared with the assistance of a lawyer, followed by the name of the attorney and the attorney’s state bar number.”
The following sections of Act 317 first apply to rental agreements entered into or renewed as of the effective date, April 18, 2018: 1) Credit and Background Checks; 2) “Rent” includes late fees; 3) Incorrect amount in Notice; and (4) Electronic Delivery of Certain Documentation and Information.