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Keys to Success in Landlord/Tenant Law

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by

Kelly Schwab

on 11 April 2014

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Transcript of Keys to Success in Landlord/Tenant Law

Initial Concerns
Tenant Selection Criteria
Earnest Money
Security Deposit
Consumer Report
Code Violations
Check-In Sheet
Security Deposit
Definition
Withholding of Security Deposit
Timing
Non-Standard Rental Provisions
Documentation
Penalties
Lease
Written/Oral Lease
Parties to Lease
Documents Comprising Lease
Prohibited Provisions
Sex Offender Disclosure
Late Fees/Penalties
Amendment to Lease
Tenant Concerns During Pendency of Lease
Notice to Enter Premises
Notification to Tenant of Automatic Renewal
Tenantability
Repairs
Termination of Lease
Types
Death of Tenant
Failure to Pay Rent/Breach of Lease
Periodic Tenancy at Will
Domestic Abuse of Tenant
Notice
Types
Manner
Eviction
Causes of Action
Eviction Process
Types of Evictions
Types of Damages
Mitigation of Damages
Keys to Success in Landlord/Tenant Law
Thank you!
Earnest Money
A prospective tenant provides to a LL to have LL temporarily hold a dwelling unit off the market while the LL considers the T's application;
Protects LL against possible costs and expenses if T decides not to rent the apartment;
Must identify the apartment before taking the EM;
Must be returned by: Rejection of application by LL, Tenants withdrawal of application or LL failure to approve application within 3 days of taking EM (unless otherwise agreed);
Returned via first class mail or personally; and
If kept, LL must apply to rent, convert to SD or return to T.
Security Deposit
Usually One (1) month's rent;
Purpose is to safeguard LL from losses created by T during tenancy;
LL can withhold for unpaid rent, damages caused to premises by T, unpaid utility bills and other terms agreed to in the NSRP;
Must be returned within 21 days of surrender of premises to LL at T's forwarding or last known address;
Any amounts withhold must be accompanied by a written itemized accounting thereof; and
If the above are not followed, LL can be liable for double damages plus actual attorneys' fees & court costs.
Consumer Report
LL can charge T up to $20 to run a consumer credit report;
LL must notify T before running such report and provide T with a copy thereof;
If T provides LL with a copy of report which is less than 30 days old, LL cannot charge T for a new report, but can still choose to run an additional report; and
LL must use a national credit reporting agency to run such report.
Code Violations
Defined as "defects relating to the premises that have either been cited by the municipality/state in which the premises is located or which will affect the habitability of the premises"; and
Disclosure to the T must be made prior to the execution of the lease.
Check-In Sheet
LL provides to T at, or prior to, execution of Lease and must give T at least 7 days to complete and return to LL;
T may request the items that were withheld from the previous tenant's SD;
LL can require the above referenced request to be put into writing; and
LL does not need to provide previous T's name or the amounts charged for repairs.
Parties to Lease
Must include on the lease the party to whom rent is to be paid, the party to whom is responsible for maintenance and the party to whom legal process can be served and contact information for each; and
If you include a party that is a minor, the lease may be void or voidable at the option of that party.
Documents Comprising Lease
Lease;
Rules & Regulations;
Nonstandard Rental Provisions;
Lead Based Paint Disclosure & Pamphlet;
Pet Lease (if applicable)
Prohibited Lease Provisions
Authorize LL to evict without legal process;
Acceleration of rent;
LL requiring T to pay LL's attorneys' fees;
LL require T to confess judgment against themselves without trial;
Hold LL not liable for their negligent acts or omissions;
Hold T liable for personal injuries arising from causes outside of T's control;
Waiving LL's responsibility to deliver the premises in a habitable condition;
Evict T for a crime committed on the premises if T could not have reasonably prevent the commission of said crime; and
Allow LL to terminate a tenancy of T for a crime related to the rental property if it does not include the new domestic abuse protection language, set forth in Wis. Stat. 704.14.
Sex Offender Disclosure
LL has no responsibility to advise a T relating to whether it is necessary to register as a sex offender or the sex offender registry, unless the LL has actual knowledge thereof; and
A LL can obtain immunity from liability relating to such disclosure if LL provides T with a website and telephone number of the WI Dept of Corrections.
Late Fees/Penalties/Additional Fees
Must be provided for in the NSRP (which must be signed by the parties and each specific provision initialed by Ts);
Pre-paid rent must be applied to amounts due and owing before late fees and penalties can be assessed;
LL cannot charge late fees and penalties on previous late fees; and
Late fees and penalties are at the discretion of the court as to whether they are too punitive in nature.
Amendment to Lease
If the lease is in a written format any changes thereto must be done in writing and signed by both parties; and
Changes to the terms of the lease cannot be made until the end of the lease term, with proper notice, unless provided for otherwise in the lease.
Notice to Enter Premises
LL must provide T with 12 hour notice before entry for repairs, showings and inspections;
Exception: Consent that was previously provided (within NSRP), emergencies, in an effort to preserve or protect the premises;
LL can only enter during reasonable time periods; and
LL must identify LL's presence upon entering the premises.
Notification to T of Automatic Renewal
Any lease agreement that provides for an extended termination clause, LL must provide T with a notice of automatic renewal prior to the expiration of the original lease term (ie. winter move-out clause, 60 day termination of month to month lease); and
Said notice of automatic renewal must be provided to T between 15 to 30 days prior to the expiration of the time period wherein the notice would need to give by T to prevent the automatic renewal.
Tenantability
Cannot be waived in residential leases;
If not stated otherwise in non-residential leases, Wis. Stat. 704.07 applies;
LL has an obligation to keep the premises in a reasonable state of repair, including compliance with local building codes;
If the premises becomes uninhabitable, T may vacate, unless LL takes swift action in repairing the defects;
If T remains in the premises, rent abates to the percentage of the premises not available for use; and
Full abatement is not possible if T remains in possession of the premises.
Repairs
Promise of repairs must be initially made in writing before the execution of the lease and state the date and time period said repairs will be completed; and
If LL cannot make said repairs within the agreed upon time frame for reasons outside of LL's control, LL must notify T when said repairs will in actuality be completed in their totality.
Types of Termination
Termination By Death (Wis. Stat. 704.165)
Tenancy terminates within 60 days of LL's notice of T's death or the expiration of the lease term, whichever is earlier;
Termination By Failure to Pay Rent/Breach of Lease (Wis. Stat. 704.17)
5 Day Notice to Remedy Default or Vacate Premises;
14 Day Notice Terminating Tenancy; and
30 Day Notice to Vacate for Leases of More than One Year
Termination of Periodic Tenancy at Will (Wis. Stat. 704.19)
28 Day Notice Terminating Tenancy;
Domestic Abuse on By One T Against Another T (Wis. Stat. 704.16)
If T or a child thereof are in risk of a threat of serious physical harm, a lease may be terminated without liability for rent;
Military Service
Notice of Termination of Tenancy
5 Day Notice to Remedy Default or Vacate Premises;
14 Day Notice Terminating Tenancy;
28 Day Notice Terminating Tenancy; and
30 Day Notice to Vacate for Leases of More than One Year
Manner of Notice to Terminate Tenancy
Personal service;
Substitute service;
Certified or registered mail; and
Post and mail
Causes of Action
Repossession of Premises/Writ of Assistance; and
Damages
Eviction Process
Service of Notice (i.e. 5 day/14 day/28 day/30 day);
Filing of Summons and Complaint upon expiration of said Notice;
Return Date on eviction cause of action;
Court Trial on eviction cause of action (if applicable);
Filing of Amended Summons and Complaint (if applicable);
Return date on damages cause of action (if applicable);
Mediation on damages cause of action (if applicable);
Hearing on damages cause of action (if applicable); and
De novo appeal before circuit court judge on damages cause of action (if applicable).
Types of Evictions
Retaliatory Eviction
Eviction actions that are filed by LL due to T's reporting of bldg code violations, T joining or organizing T unions or associations or T asserting their legal rights;
Self Help Eviction
Exclude or forcibly evict T from premises without the filing of legal process; and
Constructive Eviction
LL conducting themselves in a fashion that causes the T to remove from the premises (ie. terminating utility services, changing of the locks, removing of doors or harassing of T).
Types of Damages
Unpaid rent;
Unpaid utilities;
Damages caused to the premises;
Late fees and penalties;
Other charges provided for, per the lease and/or NSRP; and
Double damages from date notice expires to date T removes from premises.
Definition
An amount paid by T and held by LL to secure the payment of expenses/damages that T incurs/causes at the cost or expense of LL during the term of the tenancy.
Withholding of Security Deposit
LL can withhold amounts from the security deposit for:
Unpaid rent;
Damages caused by T;
Utility bills; and
Amounts mutually agreed to b/t parties (i.e. NSRP).
Cannot withhold for normal wear and tear (ie. normal carpet cleaning).
Timing
LL must return to T either the SD or the remaining portion of the SD with an detailed security deposit itemization specifically identifying the portion of the SD withheld within 21 days of T's surrender of the premises, unless agreed to otherwise.

Nonstandard Rental Provisions
A legal document that can be attached to the lease which allows for:
Certain damages to be withheld from the SD;
Lien agreement; and
Entry to the premises by LL contrary to the law.
T must sign document and initial each provision.
Documentation
LL must either return the SD or send a written itemization detailing the amounts withheld from the security deposit along with the remainder of the SD to a forwarding address provided by T, or T's last known address if no forwarding address is so provided.
Penalties
If LL does not follow the law relating to return of the SD, LL can be liable for punitive damages, including, but not limited to, double damages, actual attorneys' fees and court costs.
Tenant Selection Criteria
Written/Oral Lease
Mitigation of Damages
Attorney Kelly J .Schwab
Schwab Legal Group, LLC
429 Algoma Blvd
Oshkosh, WI 54901
(920) 230-4582
kelly@schwablegalgroup.com

Flat Fee Packages
Evictions;
Representation in Purchase/Sale of Real Estate;
Formation of and Compliance with Legal Entities;
Collections; and
"Scary" Lawyer Letter

Lease Packages
Hard and digital personalized copies of:
Lease;
Nonstandard Rental Provisions;
Rules and Regulations;
Pet Lease; and
Related documents;
Annual Updates to Lease and Consultations Relating thereto;
Annual Personalized Changes to the Lease;
Consultations relating to Tenant Issues;
Updates on Changes to the Law; and
Educational/Informational Material Relating to Landlord/Tenant Matters
Coming Soon ...
Digital Landlord/Tenant Forms
Website Facilitating Landlord/Tenant Processes;
Interactive Blog;
Information Videos; and
Seminars
Other Offers ...
Ask about our discounts available for participants of today's seminar!
Make sure to complete a attendance information sheet to be put on our mailing lists for informational material on changes to the law, landlord/tenant issues and upcoming seminars.
Full transcript