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This case is by one appellate judge, is unpublished and is not legal precedent.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)
Compiled By Dawn Anastasi, RPA Board Member
Los Angeles, CA -- Delinquent tenants in the greater Los Angeles market owe an estimated $1 billion in unpaid back rent as the city enforces new renter protections. Los Angeles extended a prohibition on evicting tenants for having unauthorized pets or occupants in their apartments. In addition, it renewed a rent freeze on rent-controlled apartments until next year. Landlords are no longer allowed to evict tenants in any rental property, including single-family homes, unless there was unpaid rent, documented lease violations, owner move-ins or other specific reasons. The provision starts after six months or when a lease expires, whichever comes first.
California landlords, who have sued local governments over eviction laws, say there is no longer any pandemic justification for many renter protections, according to the Journal. In some cases, landlords say, tenants have taken advantage of the laws as an excuse to not pay, straining small operators who may own only one or a handful of units.
Read the full article here.
Detroit, MI -- A proposed ordinance seeks to end the ability for an owner end a tenancy when they want to sell the property or plan a major renovation. “Selling the property or doing a major renovation, those are not just cause in the sense a tenant has done anything wrong,” said Julia Belian, law professor at University of Detroit Mercy.
DeKalb County, GA -- A U.S. Army officer says a squatter moved into her DeKalb County home while she was serving on active duty, and now she can’t have him evicted.
“He’s not a tenant. He’s a squatter,” Lt. Colonel Dahlia Daure said. She was renting out her metro Atlanta home, but after a $35,000 renovation, she put it up for sale. “I got a cash offer. It was under contract,” she said. That’s when Daure says Vincent Simon apparently moved in.
This week she served Simon with eviction papers, but he has a right to respond and have the case heard by a judge. Channel 2 Action News learned that Simon has a long criminal history, including convictions for guns, drugs and theft charges. Daure saw him moving giant safes into the house. Gray went to the home multiple times to try to talk to Simon. He never answered the door.
Jacksonville, FL -- Co-owners Patti Peeples and Dawn Tiura said they believe the squatting began in March, a short time after a tenant moved out. According to the police report, one of the women said they found the property on Zillow and signed a rental lease. On Tuesday morning the squatters were finally evicted from the home.
Now the owners are filing criminal charges. ″This has been a 40-plus day process that we have been unable to take repossession of a home that we own by squatters who broke in and inhabited our home and then destroyed it,” Peeples said.
Peeples and Tiura said they estimate about $15,000 to $20,000 worth of damages, from holes in the walls, ripped-out cabinets, dish-washing machine damage and even a stolen washer and dryer.
By Heiner Giese, RPA Counsel
Attention Milwaukee Property Owners!
You will have received a notice like the one below from the City of Milwaukee’s tax assessor office.
It tells you that the assessed value of your real estate parcel has not changed for 2023. What it DOES NOT make clear is that you can still appeal last year’s assessment if it was too high and you missed the May 2022 deadline to file an appeal or if you have now decided that the assessment is too high and it should be appealed.
I recently spoke to two owners. One of them negligently let last year’s deadline pass (the assessment on his three unit building had been bumped by $50,000). The other owner lost the second stage of his appeal on a technicality. But owners can now appeal that 2022 assessment which has become the 2023 assessment.
You should go to www.Milwaukee.gov/AskAssessor to learn about your appeal rights.
The deadline is May 15, 2023.
By Tristan R. Pettit, Esq.
A new and updated version of the Nonstandard Rental Provisions (NSRP) form that I draft is available for purchase at Wisconsin Legal Blank.
The need for the revisions were due to conversations that I had with the State (namely the Attorney General's Office) while defending a client of mine during a Civil Investigative Demand (CID). During our conversations, the AG's office informed me that it was their opinion that a NSRP cannot state that a landlord can deduct from a tenant's security deposit both a fee (set by the landlord) and the actual costs incurred by the landlord.
It is the AG's opinion that a landlord can only deduct from a tenant's security deposit for the actual costs incurred by the landlord.
I am not aware of any law, rule, or caselaw that sets forth the AG's view regarding this, however I certainly do not want any of you that purchased a form that I drafted, to be investigated by the State. So I have errored on the side of caution.
As such, the revised NSRP form (dated 4/11/23) excludes any reference to a fee (except for a late fee) and instead states that the landlord can deduct its actual costs incurred as a result of the tenant's failure to properly perform the listed requirements.
Did you like this article? Read more on Tristan’s Landlord-Tenant Law Blog.
By Dawn Anastasi, RPA Board Member
The fall Landlord Boot Camp is scheduled for Saturday, November 4, 2023. Save the date on your calendar now!
If You've Never Attended Boot Camp
As a rental property owner, invest in yourself with education that can help your business succeed.
If You've Attended Boot Camp Before
How often should you attend the Landlord Boot Camp? Per Tristan Pettit, the attorney teaching the course, try to attend at least once every 3 years unless there is a significant law change. Tristan says:
I have clients that go every other year and they tell me there are new things they learn every time and they have not been disappointed in coming to see it.
Treat the Landlord Boot Camp as continuing education, much like any other industry.
Certificates of attendance are sent to every member that attends after the class is conducted.
Registration for the Fall Landlord Boot Camp will be coming in the future.
Do you have any questions about the Landlord Boot Camp? If so, comment below and we will get your questions answered!
The AASEW is changing its name to Rental Property Association of WI, Inc. as mentioned in tonight's General Membership meeting.
Do you have any questions, comments, or concerns about the new name? Please post them below!
By Heiner Giese, AASEW Legal Counsel
Right to Counsel
AASEW legal counsel Heiner Giese and Board member Tim Ballering have analyzed the recent report on Legal Aid and Legal Action's right-to-counsel (RTC) program in Milwaukee. The analysis was submitted to a 35 member group of judges, court commissioners, tenant advocates and social service organizations at its April 10 meeting. The group meets bimonthly on the topic of eviction diversion.
Tim Ballering and I have some comments on the Stout Risius report analyzing the right-to-counsel (RTC) program being run by Legal Aid and Legal Action (called EFM for EvictionFreeMke).
The author Neil Steinkamp did a much better job in soliciting input from housing providers than was done in his reports on RTC in Connecticut and Cleveland, also released just recently. Colleen Foley and I can claim some credit for that because a discussion we had last summer led to us inviting Steinkamp to conduct the forum in Milwaukee last September which featured an exchange of ideas between owners, attorneys from both sides and social service agencies.
The biggest shortcoming of the Milwaukee RTC report (and also for Connecticut and Cleveland) is that rent losses of owners in RTC cases are not researched. I have mentioned this in emails to Meagan, Neil and to Samira Nazem, the NCSC liaison:
One of the gripes Tim B. and I have with Neil's eviction studies . . . is that Neil says researching landlord losses has not been within the scope of a study on the benefits of Right to Counsel. Stout has now done these studies in numerous jurisdictions. Follow up studies are planned in many of them. Federal dollars are used, at least in part, to pay Stout for its work. It is only fair and necessary that future Stout eviction reports give an analysis of the economic costs to housing providers and not just an analysis of the benefits to tenants or governments.
[Tim B.’s observation about this today: Rent loss and the impact on housing due to these losses are more easily quantifiable than out-of-home foster care costs, economic value preserved by reducing migration out of Milwaukee County, cost savings related to housing social safety net responses, retained federal and state funding for Milwaukee Public Schools and cost savings related to Medicaid spending on health care. The alleged positive economic impact of migration out of Milwaukee County and on the Public Schools ignores that others would occupy the units if the RtC clients were evicted.]
Other comments we made regarding Stout’s methods were these:
Tim B. and I believe that the Stout reports on RTC should more strongly emphasize its adverse effects on “good” tenants – especially those of the same income class as persons being evicted – when rental property owners tighten their screening criteria or require increased security deposits because RTC results in delays and more unpaid rent. A resolution to this problem would be to set aside a portion of the money designated for lawyers ($20M just announced by HUD for 2023!!) for whatever weeks of “delay” RTC secures for the tenant to find new housing.
With Milwaukee experiencing record-low vacancies, hold-over renters reduce housing opportunities for others with similar housing needs.
Sealing Eviction Records
The topic of sealing eviction court records is going to get more attention. Tim B. has pointed out that while sealing can help the evicted tenant secure new housing it will have an unintended consequence for the tenants who are now competing with this person for housing in a very tight rental market.
For example, say tenant Alan with monthly income of $2400 applies for housing. Tenant Bob with income of $2200 applies the same day. Alan had two evictions in the last three years which were sealed and not known to the owner screening them both. Bob has never been evicted. The owner will logically pick Alan because of his higher income and supposed better ability to pay rent. Bob will lose out and have to keep looking for housing.
Finally, Tim B. and I are shaking our heads over Gov. Evers’ proposal in his budget bill housing package to pay $66 million to lawyers for RTC in the next biennium! The Governor did a great job in administering and distributing the ERAP money during the pandemic but, c’mon, lawyers??
How about we change that to $60M for tenants who fall behind on their rent and the remaining $6M for the RTC lawyers to settle those cases and get that money to landlords in exchange for a dismissal of the eviction?
By Dawn Anastasi, AASEW Board Member
Did you attend the latest Landlord Boot Camp in March? If not, why not?
I think the AASEW Landlord Boot Camp is one of the best values for landlords, either new or existing, out there in the market today.
If you haven't attended, you really, really don't know what you're missing. I recently attended again, after attending in the past. And I can honestly say that this continuing education is extremely valuable for my business.
If you attended in the past, you might think, "I've already gone in the past, why go again?"
Because things change constantly! It's not only new laws, but how the court commissioners interpret the existing laws.
It's a good idea to attend, or send your employees, to one of these Boot Camps every 2-3 years, or if there's a new significant law change.
Just the Q&A after the event, which lasts about an hour, is valuable because you get to bring your own questions to get addressed by an attorney.
There's nothing like this Boot Camp in the city of Milwaukee or anywhere in Wisconsin.
If you have questions about the Landlord Boot Camp, or have recently attended and have feedback, please leave your comments below.
By Gary D. Koch, Petrie + Pettit
It finally happened – we’ve had a fair housing challenge to a landlord’s refusal to accept rental assistance. In this case, it’s Wisconsin Emergency Rental Assistance (“WERA”) funds, but the lesson here is applicable to any / all assistance funding.
Under the Wisconsin Open Housing law (found at Wis. Stat. §106.50), discrimination in housing is prohibited. This includes discrimination against any “lawful source of income” (Wis. Stats. §106.50(1m)(h)). Per the Wisconsin Administrative Code, the term lawful source of income “includes, but is not limited to, lawful compensation or lawful remuneration in exchange for goods or services provided; profit from financial investments; any negotiable draft, coupon or voucher representing monetary value such as food stamps; social security; public assistance; unemployment compensation or worker’s compensation payments.” Wis. Admin. Code. DWD § 222.02(8).
In our current case, the Wisconsin Department of Workforce Development’s Equal Rights Division (ERD) has advanced the (unsubstantiated) assertion that “Rental assistance can be viewed as a lawful source of income”. Obviously, the ERD thinks that rent assistance falls into one of the definitions of lawful source of income.
This case is just in the initial stages of investigation. As it works its way through the system, beware, as with almost anything, that if you are taking an action such as refusing to accept rental assistance, our team recommends that your reasons for refusing are nondiscriminatory, non-retaliatory, and made across-the-board (i.e., for ALL tenants, not just the “problem” ones). We also recommend that your non-discriminatory, non-retaliatory, across-the-board reasons be internally documented to establish a record should one become necessary in future.
I guess we aren’t done penalizing landlords because of the pandemic.
Stay tuned!
Like this article? Check out Petrie + Pettit's website here!
Compiled By Dawn Anastasi, AASEW Board Member
Jersey City, NJ
Mayor Steve Fulop and city councilmembers James Solomon, Yousef Saleh and Frank Gilmore have been working together to develop a Right To Counsel program to aid tenants in the city who can’t afford to pay an attorney to represent them in court. The $4 million annual budget would be funded through a 1.5% development impact fee on every residential project, no matter the size. The new fees are expected to generate $20 million annually. The other $16 million would be dedicated to the city’s Affordable Housing Trust Fund.
An office of the Right to Counsel will be created under the city Department of Housing, Economic Development, and Commerce (HEDC). When residents receive an eviction notice, they will receive a free consultation on their rights and be assigned an attorney if the office determines it necessary.
Solomon said developers — and even people building one- and two-family homes — would pay the 1.5% fee based on the property’s assessment before a certificate of occupancy is awarded. He said the fee, which would be phased in, won’t affect current projects that have already received site approval, but is would be fully implemented by 2025.
Read the full article here
Detroit, MI
Taura Brown got evicted Tuesday from her tiny home, a prospect that she has faced for more than two years, but she didn't leave without a fight and a lineup of activists trying to defend her.
Bailiffs and 36th District Court representatives arrived at Brown's tiny home on Monterey Street at 10 a.m. Tuesday, but were blocked by about 30 people with Detroit Eviction Defense, an activist coalition that comprises attorneys, trade unionists and rental tenants who argue she's being unjustly ousted. The group of 30 people linked arms to create a human wall as bailiffs attempted to break through and get into the home.
Brown has been preparing for removal from her home since a district judge ruled last month that she could be evicted from the space she's lived in since December 2019. The decision on March 22 came after a two-year court battle, and Brown was ordered to vacate within 10 days.
Jacksonville, FL
A mix of renters and home owners gathered in Springfield Sunday afternoon for a rental housing crisis forum.
A speaker from the activist group Florida Rising told the forum about the idea for a tenant bill of rights.
He said the group is pushing Jacksonville city leaders to pass it, requiring the following:
1) Dedicated office of the tenant advocate
2) Create a publicly searchable landlord registry
3) Non-discriminatory rental application process
4) Notice of changes to lease
5) Fee transparency
6) Right to counsel and language access
7) Right to repair
The forum also brought up the idea of a tenant union - a group that could give voices to Jacksonville's tenants and make sure that bill of rights is followed.
BECOME A MEMBER - JOIN TODAY!
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