June 5, 2013 – A proposed bill pending in the Wisconsin Legislature allows landlords to serve eviction actions by postal mail, fast-track eviction trials, and gives landlords more options to deal with the personal property of evicted tenants.
The bill, AB 183, also exempts landlords from liability for providing negative rent history to prospective landlords, negates inconsistent local laws, and makes it easier for property owners to remove vehicles that are parked on property without permission.
Heidi Wegleitner, who represents tenants through Legal Action of Wisconsin in Madison, says the bill is an attack on local control, as well as substantive and procedural protections for tenants.
“People will be showing up in our offices saying, ‘I just lost my home, my car, and all my personal property, and I didn’t even know I had a court date,” said Wegleitner, who testified before the Assembly Committee on Housing and Real Estate in early May.
But Tristan Pettit, a Milwaukee lawyer who represents landlords and serves as president of the Apartment Association of Southeastern Wisconsin, says the bill plugs holes left by landlord-tenant legislation passed last year (Act 143) and creates more consistency for landlords.
“It does not take away a tenant’s right to defend eviction actions,” Pettit said. “It does create consistency for landlords who own property in multiple counties, and it relieves a landlord from the costs of storing personal property that is often never claimed.”
Potential Unauthorized Practice of Law Issue
Under current law, a person may commence and prosecute or defend an eviction action pro se or through an attorney. If the “person” is a corporation or other legal entity, a “full time authorized employee” of the entity may appear. Wis. Stat. § 799.06.
A nonlawyer employee can represent a corporation in eviction actions, a state appeals court has ruled, because evictions are commenced in small claims court. See Holz v. Busy Bees Contracting Inc., 223 Wis.2d 598, 589 N.W.2d 633 (Ct. App. 1998).
However, proposed AB 183 allows a “member” or authorized employee of a legal entity to represent the corporation in eviction actions, even if they are not a full-time employee. In addition, a “person” in eviction actions may be represented by “an agent of the member or an authorized employee of the agent.”
This provision would seem to allow an employee of a property management company, which is the agent of a corporate landlord, to represent the landlord in eviction proceedings. Thus, the provision potentially extends the “employee” representation that was allowed in Holz under § 799.06.
In addition, the Wisconsin Supreme Court’s unauthorized practice of law rules (SCR 23.01 & 23.02) do not specifically authorize nonlawyer agents of corporate entities to represent the entity in small claims court.
Abandoned Property of Evicted Tenants
Under current law, landlords may presume that a tenant has abandoned his or her personal property on the premises, only if the tenant voluntarily “removes from” the premises and leaves property behind, absent a written agreement to the contrary.1
Thus, landlords can immediately dispose of abandoned personal property in any way the landlord deems appropriate, if the landlord has provided written notice in the lease or lease renewal that abandoned personal property will not be stored by the landlord.2
Without notice in the lease or lease renewal, the landlord cannot dispose of abandoned personal property without first sending notice to the tenant and waiting 30 days.3
However, landlords must treat personal property differently when a tenant is evicted. In those cases, personal property (of value) must be placed in storage.4 Landlords must also provide information about how the tenant can reclaim the property.
Under the proposed bill, the personal property of evicted tenants could be treated the same as the abandoned property of tenants who left the premises voluntarily.
That is, landlords may presume that a tenant has abandoned personal property – and dispose of it immediately – even if the tenant is evicted, so long as the landlord has previously notified the tenant that the landlord does not intend to store the property.
The proposed law would require “no storage” notice in the lease, lease renewal agreement, “or at any other time before the tenant removes from or is evicted from the premises.” Current law requires that “no storage” notices be in the lease agreement.
Wegleitner says the proposed law could trigger a downward spiral. “In evictions, tenants have lost their home, without fault in some cases, and now this bill says the landlord can just toss their personal property. This does not protect Wisconsin’s citizens.”
But Pettit says a low percentage of evicted tenants actually claim stored property, and landlords rarely recoup the costs of removing and storing it.
Under current law, landlords must move the property or pay movers, insure the move, and pay $10 per hour for deputy supervision and inventory of personal property.5
If landlords elect to have law enforcement agents remove and store property, which is required in Milwaukee County, they pay the estimated costs upfront.6
Landlords can obtain money judgments to recoup the costs from evicted tenants, but Pettit says many of his clients have judgments that are “uncollectible.”
“This bill just lets landlords dispose of personal property an evicted tenant has left there, without paying largely unrecoverable costs for removing and storing it,” Pettit said.
Under the bill, landlords who don’t give an evicted tenant “no storage” notice are still subject to the removal and storage requirements under current law. But supervision by law enforcement is optional; the landlord may request supervision, but it’s not required.
Eviction Procedure Would Change
Currently, landlords must personally serve tenants with eviction actions through summons and complaint. The bill allows courts to authorize mail service, and requires a “return date” – the date of first appearance – within 5 to 14 days of the service date. Currently, the return date must occur between 5 and 30 days from the date of service.7
Wegleitner says mail service is not sufficient to protect someone who is potentially losing their home. And the proposed change is especially concerning for persons with disabilities, says Jodi Hanna, an attorney in with Disability Rights Wisconsin.
“Personal service ensures that someone with a disability receives the proper notification,” Hanna said. “Someone who is hospitalized or otherwise temporarily incapacitated may not have the ability to check the mail for an eviction notice.”
Joe Forward is the legal writer for the State Bar of Wisconsin. He can be reached by email or by phone at (608) 250-6161.
In addition, the proposed bill would require the court to schedule an eviction trial “within 20 days of the return date of the summons.” Current law allows the court to schedule eviction trials “as soon as possible,” but Pettit says this allows cases to languish.
“Currently, when a tenant files a request for jury trial, the case is essentially stalled for months,” said Pettit. “Eviction actions involve limited issues to determine a right to possession. The bill just ensures these trials are completed within a reasonable time.”
However, Wegleitner says 20 days is not reasonable. “People won’t have time to prepare for trial, or gather evidence,” she said. “In addition, parties won’t have time to work out a deal that might allow the parties settle the case without a trial.”
Code Violations: Landlord Disclosures to Tenant
Under current law, the landlord has a duty to disclose to a prospective tenant any building code or housing code violation if the landlord has “actual knowledge of the violation.”8 Under the proposed bill, the landlord must only disclose building or housing code violations if the landlord has “received written notice of the violation from a local housing code enforcement agency.”
Check-in Sheets, Condition of the Premises
Currently, landlords must provide new tenants with a standardized information check-in sheet “that contains an itemized description of the condition of the premises.”9 The proposed law would not require standardized check-in sheets containing itemized descriptions; instead, landlords would be required to provide a check-in sheet “that the tenant may use to make comments, if any, about the condition of the premises.”
Discussion of Nonstandard Provisions
Current law allows landlords to withhold from the tenant security deposit amounts reasonably necessary to pay for damage, waste, neglect, unpaid rent, utility payments, and municipal fees.10 To legally withhold security deposit funds for any other reason, the rental agreement must include a separate written document entitled “Nonstandard Rental Provisions,” and the landlord must “identify and discuss” each nonstandard provision with the tenant.11
The proposed bill only requires the landlord to “identify” each nonstandard rental provision; the landlord need not “discuss” those provisions with prospective tenants.
Removal of Vehicles from Parking Lots
Current law prohibits the removal of vehicles from private parking areas unless a formal complaint and citation for illegal parking is issued by a traffic or police officer.12
Under the proposed bill, private property owners can have vehicles removed immediately, regardless of whether a citation is issued for illegal parking, so long as the private property is clearly marked with a sign that the property is private and unauthorized vehicles may be towed.
If a private property sign is not posted, property owners can still have cars towed immediately, but an illegal parking citation must be issued first. Consistent with current law, the proposed bill requires vehicle owners to pay the cost of removal and storage.
Tenant Responsibility for Bug Infestations
Current law requires tenants to “repair the damage and restore the appearance of the premises,” if the tenant’s negligence or improper use caused the damage.13
The proposed bill requires a tenant to “remediate or repair” damage that is “due to the acts or inaction of the tenant,” including damage that occurs from an infestation of insects or other pests. Landlords can elect to get reimbursed for remediation or repairs.
Local Ordinances Preempted
The proposed bill would prohibit enactment of local ordinances, or invalidate existing ones, that require landlords to communicate to the tenant or to the municipality information that is not required to be communicated by state or federal law.
Liability for Negative References
The proposed law exempts from civil liability landlords who provide negative information about a tenant to prospective landlords, adding a presumption that the landlord provided information in good faith. The presumption is overcome by clear and convincing evidence that a landlord knowingly communicated false information.
Unfair Trade Practices
Current law provides that practices in violation of landlord-tenant laws, Wis. Stat. ch. 704, may also constitute unfair trade practices or unfair methods of competition under Wis. Stat. section 100.20, allowing a tenant to sue for double damages.
The proposed bill clarifies that only violations of Wis. Stat. section 704.28 (withholding from a return of security deposits) and 704.44 (defining certain provisions that void a residential rental agreement) may also constitute violations under section 100.20.
1 Wis. Stat. § 704.05(5)(a).
2 Wis. Stat. § 704.05(5)(bf). There’s an exception for medical items, which the landlord must hold for seven days.
4 See Wis. Stat. § 799.45.
5 Wis. Stat. § 799.45(3m) and § 814.70(8).
6 Wis. Stat. § 799.45(3)(am).
7 Wis. Stat. § 799.05(3)(b).
8 Wis. Stat. § 704.07(2)(bm).
9 Wis. Stat. § 704.08.
10 Wis. Stat. § 704.28(1).
11 Wis. Stat. § 704.28(2).
12 Wis. Stat. § 349.13(3m).
13 Wis. Stat. § 704.07(3)(a).