By Atty Heiner Giese
The Wisconsin Supreme Court today issued it’s long-awaited ruling (Rule Petition 22-03) on how long eviction case records should remain available to public view via online access to court records.
The Court rejected the petition of Legal Action of Wisconsin for only a one-year retention and accepted the proposal of the Rental Property Association of Wisconsin and other landlords: 2 years retention if no money judgment entered and 10 years if a writ of restitution was granted.
The dissent by Justice Hagedorn (joined by CJ Ziegler and J. Rebecca Bradley) says a change to open records should have first been vetted by the Court's own CCAP committee and there should have been more consideration as to how restricting access to eviction filings is going to affect the business practices of landlords -- who are entitled to know the prior rental history of tenant applicants and will pass on the costs of more difficult screening to other tenants (J. Hagedorn does not say it, but an example of this is landlords requiring a double security deposit because they can't be sure if an applicant had prior evictions and is thus not a good risk).
The Order's effective date is delayed for one year to July 1, 2025 but the current law found in Wisconsin statute section 758.20 -- which requires no less than a 2 year retention for evictions where no money judgment was docketed and 10 years if a writ of restitution was issued -- was acknowledged by the Supreme Court and should continue to apply. Legal Action of Wisconsin had urged the court to overrule that statute and make its own rules but the court specifically declined to do so.
By Dawn Anastasi, RPA Board Member
Today Milwaukee County Housing Services had a meeting regarding their new LIFT Program.
What is LIFT?
LIFT stands for "Landlord Incentives to Foster Tenancy". LIFT was launched on June 1, 2024 to address the soaring demand for rental housing in the Milwaukee County.
LIFT was created based on feedback from landlords, including feedback from an RPA survey from 2021. Yes, the feedback from RPA members helped this program!
The Housing Authority heard from rental property owners reasons why Rent Assistance was not considered. One of those reasons is that it is very difficult (if not impossible) to collect monetary damages from program participants for damages to rental units.
What are the Benefits to Rental Property Owners who Enroll in the LIFT program?
How Does an Owner Join the LIFT Program?
1) Fill out a Membership Agreement on the LIFT website.
2) Fill out the Property Intake Form for each property you're entering into the LIFT program.
After the short presentation by Alexi Millard and Connor Goggins of Housing Services, they opened the session up to a Q&A. Here are some of the questions asked/answered:
Can claims for damages be made DURING tenancy instead of just at the end?
Yes, the LIFT program website allows for submitting claims for tenant damage made during tenancy. The rental property owner can submit photos, and/or an inspector can come out to verify damage. The owner will need to get a minimum of 2 bids for work and submit verification of actual expenses (receipts, invoices, etc). Damages can include that caused by the tenant, their pets, and/or their guests.
Does the LIFT program cover existing Milwaukee County Rent Assistance tenants?
No, this program is only for NEW tenants signed as of June 1, 2024. If an existing tenant is having trouble paying their rent, they can be referred to the Eviction Prevention Program which provides financial assistance payments to landlords.
Does Milwaukee County Housing Services have an open wait list for vouchers?
No, the wait list is closed. Milwaukee County Housing Services has other programs besides Rent Assistance and these include MyHome and Rapid Rehousing.
Milwaukee County has one of the lowest vacancy rates in the country due to a shortage of rental units. 70% of people leaving homelessness need a studio or 1 bedroom unit, so these unit sizes are especially in demand.
Where can a rental housing provider find out more about the Milwaukee County Housing Authority Section 8 program?
Please see a link to the 54-page PDF here.
If you were not able to attend today's session and have more questions, please post a comment to this post. The Milwaukee County Housing Authority will also have additional informational sessions to be held virtually for those who cannot make it out in person.
Tristan R. Pettit just added a very important post to his blog regarding one of the biggest, if not the biggest, issues facing landlords in the last 30 years.
Read the Blog Post Here
In summary: if a landlord has a provision in its rental agreement, which includes any rental documents as they are incorporated into the rental agreement, that violate any of the “10 Deadly Sins,” the landlord must return all rent that it received from the tenant during the tenant’s entire tenancy.
(The “10 Deadly Sins” are illegal rental agreement provisions as set forth in Wis. Stat. § 704.44.)
Essentially, because of something that may not even have been intentional by the landlord, the tenant will get to live in the landlord’s rental property for free for the tenant’s entire tenancy, even if the tenant was not damaged because of the prohibited language in the rental agreement.
Do you have tenants with the City of Milwaukee Housing Authority (HACM)? Are you interested in learning more about renting out units to Rent Assistance tenants? This is a Q&A session with the Housing Authority to get your questions answered.
Virtual Info Session for Section 8 Housing Providers
Wednesday, June 12, 2024
10:00 AM - 11:00 AM
Microsoft Teams meeting
Join on your computer, mobile app or room device
Click here to join the meeting
Meeting ID: 291 278 921 882
Passcode: WUuwKK
Or call in (audio only): 414-251-0392
Phone Conference ID: 252 725 593#
By Attorney Tristan R. Pettit
This is a long blog post, but I sincerely hope that you take the time to read it all the way until the end. It is very important that you know what you will be facing soon. This may be one of the biggest, if not the biggest, issues facing the residential rental industry in the last 30 years that I have been a practicing attorney representing many of you.
The Koble Investments case (“Koble”) which is a Wisconsin Court of Appeals case from District III, was published this week and is now law in the State of Wisconsin. The Court’s holding in Koble is that if a landlord has a void lease (i.e., the lease contains one of the “10 Deadly Sins” as set forth in Wis. Stat. § 704.44) the remedy is for the complete disgorgement of all rent previously paid to the landlord.
Stated another way, if you have a provision in your lease that violates any of the “10 Deadly Sins” as set forth in Wis. Stat. 704.44, your lease is void and unenforceable, and you must now return all rent that you received from the tenant during the tenant’s entire tenancy.
As you can imagine, this remedy could completely wipe out small to mid-size landlords in Wisconsin and if many tenants in a large rental complex come together to sue a larger landlord seeking reimbursement of all rent paid or join in a class action lawsuit against a larger landlord, they too could be seriously damaged.
While the landlord in the Koble case will be petitioning the Supreme Court of Wisconsin to accept and decide this case and hopefully overturn the Court of Appeals, the Wisconsin Supreme Court only accepts a limited number of cases each year and is not obligated to take the Koble case. Additionally, the landlord in Koble at both the circuit court level and at the Court of Appeals level did not raise the best argument available to him which was that if your lease is void, it automatically defaults to a month-to-month tenancy per Wis. Stat. 704.01(2) and therefore the tenant must still pay the landlord rent and that the landlord should not be required to return all rent received from the tenant throughout the tenant’s tenancy.
Additionally, the landlord in Koble also waived the argument that having a void lease, which can occur unintentionally, is not the same as an auto repair shop failing to obtain a customer’s permission to repair damage in the customer’s car and provide an estimate of the cost of that repair to the customer prior to commencing the repair work (which is what the same Wisconsin Court of Appeals held in an unpublished case in 2023). Furthermore, the landlord in Koble, failed to develop an argument against the remedy of returning all rent received during the entire tenancy back to the tenant and failed to advise the court that such a holding would decimate a large part of the residential rental industry in Wisconsin.
Since the above arguments were not raised by the landlord in Koble, or were waived, those arguments are essentially lost and cannot be raised by the parties. Thus, the burden falls on the various Landlord Trade Associations throughout the state to take action and provide this information and raise these arguments to the Wisconsin Supreme Court by filing an amicus (“friends of the court”) brief requesting that the Wisconsin Supreme Court accept the case and render a just decision based on the actual law before permanently damaging the residential rental industry in the state.
The publication of the Koble case is very detrimental to all Wisconsin landlords because tenants and their attorneys will now have an even greater reason to argue that all rental leases that they have entered into with their landlord or property management company in the last six (6) years are void and contrary to Wis. Stat. § 704.44.
Tenants have no reason not to raise such an argument every chance they get, because if they prevail, they will receive a windfall of several thousands of dollars and have been able to live for free for months if not years. And if they are not able to convince the court to rule in their favor, their case is just dismissed and there is no penalty to the tenant.
So, I anticipate that we will see even more tenants trying to attack landlords’ rental documents arguing that they are void then we have already encountered since May of 2023. Because of such arguments, I have had to revise the rental agreement and other rental documents that I draft for Wisconsin Legal Blank two times in the last year, just to be safe, not because I think that they contain any language that violates any of the “10 Deadly Sins.”
I have made the revisions to protect you as it is always better to be safe than be sorry. You must ensure that you are using the most current version of both the Residential Rental Agreement and the Rules and Regulations form that I draft, and which are sold at Wisconsin Legal Blank, which are dated October 20, 2023. The most current Nonstandard Rental Provisions document, which I also revised out of an abundance of caution, is dated March 4, 2024.
No one can foresee what arguments will be made by tenants against their landlord’s rental documents in the future, but rest assured, the arguments will come. It may be necessary for you to have your rental documents reviewed and revised to ensure that you do not have any language that violates any of the “10 Deadly Sins” as set forth in Wis. Stat. § 704.44.
Just as important, if you happen to be on the wrong end of one of these cases and the tenant is arguing that your rental documents are void and unenforceable and that you should be required to return all rent that the tenant has paid to you during their entire tenancy, please make sure to contact the Rental Property Association of Wisconsin, Inc. or your local landlord trade association.
Also make sure that you retain an attorney to represent you that understands and is knowledgeable about Wisconsin landlord-tenant law as there are arguments and defenses that can and should be raised that unfortunately were not raised in Koble.
By Attorney Heiner Giese, RPA Legal Counsel
You won’t need to use a notary public anymore when filing documents in court such as an affidavit of service for a notice terminating tenancy or a process server’s affidavit regarding service of a summons and complaint. The current requirements for a “declaration under oath” were replaced effective March 29, 2024 by 2023 Wisconsin Act 245. Here is an explanation from the State Bar of Wisconsin:
The new legislation permits unsworn declarations to be used in place of affidavits in most civil litigation settings. Specifically, the law amends Wis. Stat. § 887.015. The new law provides that the unsworn declaration must be in substantially the following form:
I declare under penalty of false swearing under the law of Wisconsin that the foregoing is true and correct.
Signed on the ___ day of _______[month], ____ [year], at __________ [city or other location, and state or country].
The newly enacted version of § 887.015 provides that where the law of Wisconsin requires or permits use of a sworn statement (e.g., a notarized affidavit), a declaration under penalty of false swearing may be used instead. The statute identifies five exceptions where an unsworn declaration may not be used, including for a deposition, an oath of office, or a deed or other real estate instrument intended to be recorded.
The RPA will contact Milwaukee City Attorney Evan Goyke to ask for changes to City forms now requiring a notarization, such as the Property Registration forms.
HB4768, The Landlord Retaliation Act, is working its way through the General Assembly.
The purpose for the legislation is to prevent a landlord from retaliating against a tenant who complains about property conditions. That behavior is already prohibited by law, but the advocates of this bill feel the existing law doesn’t sufficiently punish landlords.
Among a list of triggering actions, the new version states that if a tenant simply requests a repair then a landlord is prohibited from making management decisions like raising rent, refusing to renew a lease or change any term of service for one year after that request is made.
This is not limited to major maintenance problems. Almost every request for repair could trigger the prohibition. Multiple maintenance requests within a year are not uncommon, so the liability of this bill will often be continuous.
The biggest problem with the bill is a presumption that the landlord is guilty of retaliation if they make any of the prohibited management decisions within the year after the request for maintenance is made.
Read the Full Article Here
Learn about Milwaukee County Housing Services new program called LIFT (Landlord Incentives to Foster Tenancy).
When:
Where:
Milwaukee County Housing Services
600 W Walnut St #100
Milwaukee, WI 53212
How to RSVP:
Email alexi.millard@milwaukeecountywi.gov
The U.S. Department of Housing and Urban Development (HUD) announced $30 billion in renewal funding for the Housing Choice Voucher Program (HCV). This funding will help Public Housing Authorities (PHAs) continue to provide assistance to families and individuals who are in need of affordable housing options.
[Note: The Housing Authority of the City of Milwaukee is set to receive over $39 million.]
BECOME A MEMBER - JOIN TODAY!
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