This FAQ has been prepared by Atty Heiner Giese on behalf of the Rental Property Association of Wisconsin, Inc. (formerly AASEW) and other interested rental property owners and associations.
The Wisconsin Supreme Court held an open administrative conference on October 9, 2023 to consider a petition (No. 22-03) filed by Legal Action of Wisconsin (LAW) concerning the retention of court records in eviction cases.
Evictions are heard in small claims courts throughout the state. LAW’s petition asked the court to shorten court record retention rules so that cases where no money judgment was entered against a tenant would be deleted from the state CCAP filing system after one year.
LAW’s petition did not seek to change the current rule that eviction cases with a money judgment remain public for 20 years.
1. So what exactly did the seven justices decide at their October 9 conference?
Exactly what they decided is not yet certain. While they took a 4-3 vote in favor of changing the record retention rules this has to be put in writing and formally issued as an order by the court. There may then be separate opinions by justices supporting or opposing the changes.
Contrary to the impression from some media coverage, any eviction where a landlord gets a judgment for back rent or even just a judgment for court costs if the tenant moves out WILL NOT “go away” after two years. Those eviction cases remain public for 20 YEARS.
2. Reporting by the media says the court “sided with tenant advocates.” Is that what happened?
The media might be interpreting the 4-3 vote as the majority siding with tenant advocates and the minority siding with landlord advocates. But while we don’t yet have a written order the majority vote clearly rejected LAW’s request for a one year record retention and declared that dismissed evictions would remain public for two years.
Numerous tenant advocates and social agencies had filed comments in support of the one year rule. The media failed to look at the comment submitted by major Wisconsin rental property owner groups which opposed a one-year rule but suggested the court adopt a two-year rule. So this 4-3 decision actually sided with the landlords.
3. Are Wisconsin landlords then generally in favor of a rule whereby dismissed evictions aren’t searchable anymore after two years?
Many owners would probably prefer a longer look-back period than two years. Some larger owners have policies whereby they want to know of any evictions filed against a prospective tenant for a time period of between three and seven years. Credit histories are generally maintained for seven years by credit reporting agencies, for example.
4. So why did the landlord groups propose a two-year rule?
For two reasons.
First the existing Supreme Court Rule SCR 72.01(8) which governs all small claims cases including evictions already operates to remove many eviction records on CCAP two years after the case is closed. For example, of the 1,101 evictions filed in Milwaukee County in December 2019, 517 are not viewable by landlords using CCAP to screen tenants.
Secondly, landlord groups supported a statute favorable to tenants passed in 2018. Section 258.20(2)(b) gives the Director of State Courts the authority to remove eviction cases after two years if no money judgment has been docketed. The statute also cuts the retention period to ten years from twenty years for cases where a writ of restitution was issued against the tenant.
5. Why were three justices opposed to the two-year rule if there wasn’t any strong opposition to it by any of the interested parties?
We’ll have to see what any dissenting opinions might say but of course this issue on eviction records doesn’t just involve tenants and landlords as interested parties. The public also has a strong interest in open records. Just because a current landlord and tenant might agree that an eviction record should be effectively sealed doesn’t mean that future landlords or other credit providers don’t have the right to see whether someone has a track record of not paying rent.
Even private parties: if you are a person looking for a roommate to share an apartment you’d want to know if someone didn’t pay their rent three years ago, even if the eviction filed against them was dismissed because they moved out just before the court hearing.
6. At the oral hearing on the petition on September 7, 2023 tenant advocates proposed that the Wisconsin Supreme Court and not the Wisconsin Legislature should have ultimate authority over court record retention rules. Has that question been decided?
That legal question may not be covered when the court issues its written order. But it was revealing that Justice Rebecca Dallet, who voted with the majority, said that the court was not contravening an act of the legislature. She pointed out the two-year provision in section 758.20 and stated that the legislature “had the right to do that and we are implementing their policy.”
By Attorney Heiner Giese
The Wisconsin Supreme Court held an open administrative hearing on Oct. 9 on Legal Action's petition for a rule change to limit CCAP access to eviction records to one year. The hearing lasted about 45 minutes and is viewable on Wisconsin Eye. An audio only version will be on the Supreme Court's website later.
The AP News story by Scott Bauer got the result wrong when it said the court "sides with tenant advocates."
First, the Legal Action petition was for cutting off CCAP access at ONE year for any dismissed evictions where there is no money judgment. It there is a money judgment it stays online for 20 years, which is the current rule.
Justice Ann Walsh Bradley's motion adopted at the hearing was to change that one year to TWO years if no judgment entered.
But a TWO year limit on CCAP access is what the LEGISLATURE already approved in 2018 by statute, sec. 758.20(2).
Here is what I said in my Comment on Petition 22-03 (page 1) to the Court filed on behalf of WRA, WAA and then-AASEW:
2. The policy change on retention of eviction records for which Petitioner Legal Action of Wisconsin advocates is already substantially available (with a two, not one-year window) per Wis. Stat. § 758.20(2)(b). The Director of State Courts already has the authority under that statute - not currently being exercised - to remove eviction cases from WCCA online access if no money judgment has been docketed two years after dismissal; the Court can instruct the Director to implement that policy now.
Justice Rebecca Dallet (at 28:00 of the recording) says exactly that. She says the legislature "had the right to do that and we are implementing that policy." So today's conference vote by the justices accepts the result proposed by Wisconsin's major landlord groups and does not attempt to reverse a statute concerning court records enacted by the legislature in 2018.
So the upshot is that evictions where any money judgment is entered are going to remain searchable for 20 years. The court did not address the distinction between a money judgment being entered (which occurs automatically if the landlord gets a writ, even if the landlord does not pursue money damages) and a judgment being docketed (which is an extra step the landlord has to take and which costs $5).
The justices did not discuss (or attempt to change) the separate 10-year CCAP access for cases where a writ was issued, which the legislature mandated in sec. 758.20(2)(a).
By Dawn Anastasi, RPA Board Member
The Housing Authority of the City of Milwaukee (HACM) has a new housing portal, RentCafe through Yardi.
You can register at the portal and you will be able to set up direct deposit, monitor inspections, etc.
After you click the "Register" button you will be in the portal.
By By Karlin Conklin, Multi-Housing News
Read the full article here
Every multifamily owner accumulates learning experiences that pave the way for smarter decisions and more successful ventures ahead. Here are some of the most common investing mistakes and the lessons learned by those who’ve navigated the ups and downs of many market cycles.
By Atty Heiner Giese
You may have seen recent news stories about some tenants living in public housing in the City of Milwaukee (operated by Housing Authority of the City of Milwaukee – HACM) being unhappy with their landlord.
Milwaukee’s Common Council does not have direct control over HACM but now some aldermen want to have the Dept of Neighborhood Services inspect HACM units and write orders for any violations. See the Statement below with bolded section highlighted.
Statement from Common Council President José G. Pérez
September 20, 2023
For some time, Common Council members, community representatives, and most importantly, residents of properties operated by the Housing Authority of the City of Milwaukee (HACM), have been concerned about the way the HACM conducts its business. Anecdotes of unsafe and unsanitary conditions, billing irregularities, inattentive managers, and slovenly bookkeeping were heard from various quarters, with many of these issues predating current city leadership.
Many Council members have long grappled with how best to oversee the HACM, which is not a formal City agency, despite its long relationship with our government. It has been a point of frustration to identify what falls into the Common Council’s purview and what does not. One possible solution the Council can enforce would be to end a longstanding “handshake agreement” between our Department of Neighborhood Services and the HACM, under which the latter was treated differently from every other landlord and has been able to avoid regular inspections and enforcement for noncompliance.
On Monday, September 25, 2023, the Steering and Rules Committee will take up an ordinance that accomplishes this goal by directing the Department of Neighborhood Services to inspect and, if necessary, cite the HACM for violations of our ordinances. It is well past time the city’s second largest landlord play by the same rules as everyone else.
The public release of the federal Department of Housing and Urban Development’s review of the HACM’s Housing Choice Voucher program has made clear how dysfunctional the authority’s operations have become, and underscores the need for action, such as that in the proposed ordinance. The report is a damning account of inefficiency, incompetence, and a fundamental lack of accountability, all involving public funds intended to benefit some of our most vulnerable residents.
Recommendations were made for improvements that were, it seems, never carried out. I have written to the author of this review to ask how the HACM will be held accountable for not following previous recommendations and what will be done to ensure they are followed in the future.
I look forward to a transparent and productive conversation on these issues related to the HACM at Monday’s committee meeting.
See the article online here.
What are your thoughts on this development? Post your comments below.
By Mike Cottrell, RPA President
I'm happy to welcome Lily Johnston as an intern to our RPA team! During her time with us, she'll be helping the board on a variety of tasks including events and marketing, social media, and more.
Welcome to the team Lily!
By Dawn Anastasi and Tim Ballering, RPA Board Members
Here are some of the top legislative issues that RPA is working on. We went into more detail on these at tonight's general members meeting.
Want the full scoop on legislative issues? Be sure to attend the next in-person membership meeting on Monday, November 20, 2023.
Legal Action petitioned the WI Supreme Court to seal all evictions after one year
The Association, represented by Attorney Heiner Giese, opposed the proposal in oral arguments on September 7th. The grounds for our opposition are:
The proposal directly conflicts with Wisconsin Statute 758.20 that a case cannot be removed for 10 years if a writ of restitution was granted in an eviction action and dismissed and no money judgment must remain available for at least 2 years.
The real victims of the proposal are good renters who have never been evicted and now must compete equally for limited housing with renters who may have multiple evictions.
Owners are increasing screening and deposit requirements because of free attorneys are slowing evictions and case sealing makes screening harder.
EPA proposed zero lead dust level
This would make most urban housing unsustainable. Zero is unattainable in new housing in urban areas.
Please make your comments at https://bit.ly/EPA-zero
Deb Heffner is returning to Community Advocates to run the Rental Housing Resource Center
This is good news. Note, however that the WERA money for Milwaukee is gone. The rest of the state, excluding Milwaukee, Waukesha, Dane, and Brown Counties, received an additional $9.4 million.
Proposed mandatory insurance disclosure
Robin Vos is considering proposing mandatory disclosure by a landlord if they have liability insurance. This was in response to the deeply flawed “Wires and Fires” article by the Journal.
We oppose the proposal as we fear it will increase fraudulent claims, thereby increasing insurance premiums for all owners. We will use this conversation to force insurers to provide reasonably priced insurance to property owners in all areas of the state. The Wall Street Journal reports that 12% of residential properties nationwide are uninsured due to costs.
The City of Milwaukee appears to be charging owners for yard clean-ups without proper notice
The legislative committee will invite Erica Roberts, head of DNS, to one of our meetings to discuss the issue and work to resolve it. There are perhaps millions of dollars of improper charges.
Elmer Moore - The head of WHEDA has agreed to speak at the October RPA Trade Show
WHEDA has some exciting new programs that may be advantageous for owners, neighborhoods, and renters
Be sure to sign up for the RPA Trade Show, being held on October 27.
Free Lead Abatement
Heiner and Tim have ongoing discussions with SDC regarding lead abatement grants that should be available to owners in Milwaukee County.
Hybrid Eviction Court
The Legislative Committee is working with the Milwaukee County Courts in an attempt to get eviction first hearing to be available either in person or online.
By Tyler Durden, Zero Hedge
The argument that landlord “greed” warrants government intervention in private property contracts is specious.
Months’ worth of modest profits can easily be wiped out by a broken water heater, tree removal, or roof replacement—situations I have dealt with.
Troublingly, the failed retro housing policy of rent control is experiencing a revival led by liberal activists, lawmakers, and regulators.
Rent control is not the solution to the lack of affordable housing; it creates more problems than it solves. The best way to reduce housing costs would be to increase the housing supply; sadly, rent control works against this.
Limiting rental prices may appear to be financial relief. However, rental control experiments have led to unsavory outcomes: deteriorating properties, racial segregation, discrimination against younger renters and larger families, and greater income inequality.
You may have heard at a recent RPA Landlord Boot Camp, RPA blog post, or other RPA event about the CARES Act.
The CARES Act requires rental property owners to provide a 30-day notice to tenants prior to eviction for nonpayment of rent if the rental property is a "covered property."
Okay, so what's a "covered property"?
The term “covered property” includes any property that participates in certain federal housing programs or that has a federally backed mortgage loan.
Here are two ways to search to see if a property is covered by the CARES Act:
Keep in mind that if the rental property owner receives funds from the Rent Assistance program through the Housing Authority, that property is also covered through the CARES Act.
Do you have further questions on the CARES Act? Comment below!
This article by David J. Decker proposes an interesting solution -- have tenants pay Rent Assistance to the Housing Authority, not to landlords. The Housing Authority can pay the landlord the rent in full.
Excerpt from the article:
The existing assistance formula usually requires tenants to pay at least a small portion of their rent, for example, $100 per month. This is good policy, but it puts landlords in an awkward position. While the county can be trusted to make its payments, sometimes the tenant does not. The landlord is faced with a conundrum. Landlords can beg and cajole tenants and request payment, but the only tool with any consequences is eviction. However, is a landlord likely to file an eviction costing $150 or more to recover a $100 delinquency? Unlikely.
Instead, the delinquency may fester until the amount demands action. That amount could be $400 or more. While seemingly a relatively small sum, for the county aid recipient, this represents four months of rent. They are unlikely to be able to pay and will face eviction. Now everyone loses. The landlord is unlikely to ever recover these funds and the tenant is forced out of their home.
The remedy is obvious. Have the aid recipient pay their portion of the rent to the county and have the county pay the landlord in full. Now the county can decide when to be patient. The county will know more about what is going on with their clients and how well their recipient screening process is working.
What do you think of this idea? Post your comments below!
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