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  • WisBar News
    August 07, 2015

    Landlords Win on Notice, but City’s Housing Inspection Program Can Continue

    Joe Forward

    Aug. 7, 2015 – The City of La Crosse passed an ordinance requiring landlords to participate in an inspection and registration program, and to give tenants proper notice regarding city inspections. Recently, a state appeals court struck the ordinance’s provisions on notice to tenants, concluding they are preempted by state law.

    Starting in 2014, La Crosse began enforcing a new ordinance that requires landlords to annually register rentals and comply with rules to have those properties inspected. Landlords challenged the entire ordinance, but lost at the circuit court level.

    On appeal, the landlords did not challenge the inspection and registration program itself, just the provision that requires landlords to give tenants proper notice of inspections.

    In Olson v. City of La Crosse, 2015AP 127 (July 16, 2015), a three-judge panel for the District IV Appeals Court ruled that the notice provisions are preempted by state law but are severable, meaning landlords are not responsible for notifying tenants about inspections, but the inspection and registration program in La Crosse can continue.

    The landlords pointed to a law passed in 2013, Wis. Stat. section 66.0104(2)(d)1.a., which prohibits local ordinances that require a landlord to communicate any information to tenants that is not required to be communicated to tenants under federal or state law.

    But the city argued that under section 704.07(2)5, landlords must comply with local housing codes, and the ordinance is part of the housing code. The appeals court panel concluded that section 704.07(2)5. and section 66.0104(2)(d)1.a. “can be harmonized.”

    “We give each its full force and effect by interpreting them as requiring landlords to ‘comply with any local housing code’ … while also prohibiting local governments from including in local housing codes any provision that ‘requires a landlord to communicate to tenants any information that is not required to be communicated to tenants’ under any other federal or state law,” wrote Judge Paul Lundsten for the three-judge panel.

    The panel explained that section 704.07(2)5 does not prohibit municipalities from implementing registration and inspection programs through housing codes. But the municipalities, not the landlords, are responsible for communications to tenants.

    Severability

    The La Crosse ordinance included a “severability clause,” which said that any provision found invalid could be severed from the ordinance, keeping the remainder in force.

    The panel noted that severability clauses are not controlling but are entitled to “great weight.” The landlords, the panel explained, did not succeed in providing “some compelling reason why the ordinance’s severability clause does not control.”

    The landlords had argued that the inspection and registration program “is not capable of being carried out” without the notice provision, so the entire program cannot continue.

    “[E]ven if it were true that the ordinance requires that only landlords provide notice to tenants, it is not apparent why the City could not choose to also provide notice to tenants,” Judge Lundsten wrote. “Accordingly, the landlords fail to persuade us that the notice provision at issue … cannot be severed.”



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