April 6, 2016 – Think your tenant is engaging in criminal activity? Under recently enacted changes to Wisconsin’s landlord-tenant laws, landlords may be able to evict tenants through a “crime-free notice,” and take other actions to protect property.
2015 Wisconsin Act 176, effective March 2, 2016, passed on party line votes in both the Assembly and the Senate, with Republicans supporting and Democrats opposing.
This article highlights Act 176’s major changes to Wis. Stat. Chapter 704, the state’s landlord-tenant law, including amendments that encourage “crime-free” tenancies, changes to notice and trespasser provisions, and controls on local government.
Perhaps the most influential revisions of Act 176 are found in the “crime-free” additions. These provisions provide methods to protect a landlord’s property and other tenants from a tenant who commits a crime or is involved in a drug-related criminal activity.
Prior to Act 176, a landlord could terminate a tenancy due to an action of this nature by using a “right-to-cure” notice. However, prior to the landlord serving the notice, the tenant often cured the breach, rendering the notice insufficient.
With the new change, the tenant will not have a right to cure the breach, and the tenancy can be terminated at the discretion of the landlord.1
Furthermore, the termination of tenancy, under the new provision, is not limited to the tenant or a member of the tenant’s household but also relates to the tenant’s guests or invitees.2 Thus, a landlord can terminate a tenancy based on the conduct of a person other than the tenant, for example, if a guest is selling drugs from the property.
Referred to herein as the “crime-free notice,” this unique requirement mandates more specific allegations describing the tenant’s violation. These provisions were not previously required in a notice of similar purpose. The new crime-free notice must include the following:
A statement notifying the tenant that he or she must vacate the property at least five days after notice is served;
A description of the basis of the violation, including a description of the activity, the date on which the activity took place, and the identity or description of the individuals engaging in the activity;
A statement advising the tenant that he or she may seek the assistance of legal counsel, a volunteer legal clinic, or tenant resource center; and
A statement indicating that the tenant has a right to contest the allegation in the notice before a court commissioner or judge if an eviction action is filed.3
Although deemed a crime-free notice, there is a limited number of crimes to which this type of notice is relevant. Practitioners should note that many violations of the law are not “crimes” under the statute, but instead are forfeiture actions by local government.
Only the following actions qualify as “crimes” that fall under this crime-free notice:
Crimes that threaten the health or safety of, or right to peaceful enjoyment of the premises by other tenants, persons residing in the immediate vicinity of the premises;
Crimes that threaten the health or safety of the landlord, agent, or employee of the landlord; and
Drug-related criminal activity on or near the premises.4
The legislature specifically defines the above “drug-related criminal activity” as a “criminal activity that involves the manufacture or distribution of a controlled substance.”5 Therefore, the use or possession of a controlled substance does not fall under this category.
No matter how a lease is written, any termination of a lease under the crime-free provision must comply with the new landlord procedures.6
Even though landlords will not need to wait for an arrest or conviction to proceed with an eviction, attorneys should review their landlord-clients’ leases to ensure any crime termination language conforms to the new provisions.7
However, only leases created or renewed after the effective date of the 2015 Wisconsin Act 176 shall be subject to scrutiny.8
Changes to the Timing of Notices
Under Wis. Stat. section 704.17(2)(b), if a tenant commits waste, breaches the lease (except payment of rent), or causes damage to the premises through negligence or improper use, the landlord can give a five-day notice to remedy or vacate the property.
Brian A. Schuk (Marquette 2001) is a partner at Wassel, Harvey & Schuk LLP in Delavan. In both commercial and residential real estate matters, he represents clients in lease negotiations and drafting, breaches and evictions. He also practices probate, estate planning, and municipal law. Reach him by email or by phone at (608) 728-0700.
Prior to Act 176, if the tenant remedied and it happened again within one year of the landlord giving the five-day notice to the tenant, “the tenant's tenancy [was] terminated if the landlord, prior to the tenant's remedying the waste or breach, gave the tenant notice to vacate on or before a date at least 14 days after the giving of the notice.”
Landlords had to give the 14-day notice “prior to” the tenant remedying the violation.9 Now, they can terminate a tenancy with a 14-day notice “after” the breach is cured.10
For example, previously the landlord needed to provide the notice during a game of beer pong at a homecoming party while the noise violation was occurring.
With the changes under Act 176, the new notice can now be provided the next morning. Attorneys should be careful when advising landlords in the use of this type of notice.
In some courts, judges may balance staleness of the breach with the timing of the notice. Although this change is significant and substantial, the legislature did not change the prerequisite of a five-day right-to-cure notice.
Act 176 made additional changes to month-to-month tenancies. The landlord may now provide the tenant(s) with a five-day notice to remedy or vacate when they commit waste, a material violation of section 704.07(3), or breach any covenant of the lease.11
Dealing with Trespassers
In an attempt to distinguish “tenants at will” from unwanted guests, the legislature redefined the unwanted guests as trespassers, broadening it to include those individuals “remaining” on the property after consent is withdrawn.12 Law enforcement is now required to create a policy to arrest trespassers when probable cause exists.13
In the event of an unwanted guest, the landlord must only hold the trespasser’s personal property for seven days before disposing of the property in any manner deemed appropriate by the landlord.14 If the unwanted guest, another third-party owner, or a party who has a secured interest in the personal property requests said property back, the landlord shall promptly return the property back to the requester.15
However, the property shall only be returned after the requester pays for any expense incurred by the landlord for disposing of the property.16
Controls on Local Government
In what appears to be an attempt to create a compromise between free enterprise and the concerns of local municipalities, the legislature has expanded Wis. Stat. section 66.0104 (prohibiting ordinances that place certain limits or requirements on a landlord), further restricting inspections, fees, and registration.
Local municipalities will continue to be able to require certification, licensing, or registration of residential rental properties (RRP) if the process is limited to requesting the address, the phone number, and the name of the landlord/authorized agent.17
The local municipalities may charge a fee if the fee is charged to all RRPs, including owner-occupied RRPs.18 The fee shall only be charged at the time the inspection is performed.19 If subsequent inspections are necessary, the fee cannot exceed twice the original fee. Tenant transfer fees are prohibited.20
Municipalities may require inspections; however, the inspections are limited to:
Responses to complaints by individuals;
Regularly scheduled inspection programs conducted in compliance with the Special Inspection Warrant requirements under Wis. Stat. section 66.0119; and
Compliance with any other state or federal law.21
While Act 176 gives landlords more tools to remove the overzealous partier or local drug dealer who has found his or her way onto their rental properties, these changes must be carefully applied so as to not complicate the eviction process. With all legislation comes judicial interpretation. Only time will tell whether the Wisconsin courts will interpret the law the way the legislature intends.
1 Wis. Stat. § 704.17(3m)(b)1. (2013-2014).
5 § 704.17(3m)(a)2. (2013-2014).
6 § 704.17(5)(b) (2013-2014).
7 § 704.17(3m)(b)2. (2013-2014).
8 2015 Wisconsin Act 176, sec. 44.
9 Id. at sec. 24.
10 § 704.17(2)(b) (2013-2014).
11 § 704.17(1)(b)1. (2013-2014).
12 § 943.14(2) (2013-2014).
13 § 175.403(2) (2013-2014).
14 § 704.055(2)(a) (2013-2014).
15 § 704.055(3) (2013-2014).
17 § 66.0104 (2013-2014).