Commentary on the Recent Eviction Case Mentioned in the Media

2023-05-15 4:00 PM | Dawn Anastasi (Administrator)

By Atty Heiner Giese

An eviction case involving Berrada Properties generated a story in the Milwaukee Journal Sentinel on May 14.

Jill Kastner, supervising attorney at Legal Action of Wisconsin, said the order is "going to have big impact on tenants in Milwaukee."

I disagree. This case WILL NOT HAVE A BIG IMPACT.

What happened here is that Berrada filed an eviction complaint without specifying what type of notice had been given to the tenant (it was a 5-day notice) or the day it was given. What Berrada said on the complaint was simply:

"Defendant(s) served with a termination of tenancy notice and failed to vacate the property."

The trial judge allowed the case to proceed but the appellate judge said the case should have been dismissed because the complaint did not sufficiently advise the tenant about the grounds for the eviction. The complaint did not state any dates on which anything happened. However, the appellate judge failed to consider that the tenant had received a notice which was dated and which would tell the tenant what she had to do to avoid an eviction.

Almost all evictions filed by landlords in Milwaukee County do at least state enough basic facts to let the case proceed. In fact, Legal Action admitted in its reply brief that "every other landlord in Milwaukee County" includes sufficient notice in their eviction complaints.

For example: Tenant was served on May 10, 2023 with a 5-day notice to pay delinquent rent or vacate the premises. Tenant has failed to pay the rent owed and has not vacated the premises. The amount of damages are to be determined.

That should be sufficient for the complaint.

Interestingly, the attorneys on both sides and the appeals judge failed to consider the correct solution when a bare-bones, unclear complaint is filed and the defendant is uncertain how to respond. Such a case should not be dismissed. The tenant's attorney should have filed a "motion for more definite statement" under sec. 802.06(5):

(5)  Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired.

This case is by one appellate judge, is unpublished and is not legal precedent.

But Berrada had filed an amended complaint which named a wrong address and a wrong defendant's name. That was a separate ground to dismiss the complaint so the appeals court WAS correct to dismiss the eviction on THAT basis.

Link: Court of Appeals Decision (PDF)

Rental Property Association of Wisconsin (Formerly AASEW)
P.O. Box 4125
Milwaukee, WI 53204-7905
Phone: 414-276-7378

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