Best of the Legal Hotline: So You Want to be a Landlord?


 Tracy Rucka  |    July 07, 2014
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WRA members never call the WRA Legal Hotline about good tenants — why would they?! In fact, the Legal Hotline stays busy with the phone calls about the bad tenants. The following questions and answers give some suggestions for how to deal with the baddies.

Friends become enemies 

Three friends are on the same lease in an apartment unit. After a recent falling out, one friend moved out of the unit. The remaining two paid rent on time, but the third did not. How should the landlord address this? 

In general, joint and several liability applies with regard to the tenants’ responsibility for the rent. Joint and several liability essentially means that each individual tenant is legally responsible for the full amount of the rent regardless of whether one tenant did not pay a portion of the rent while the others paid their respective shares. The landlord may submit a five-day notice to all the tenants regarding the rent amount in default. The remaining tenants risk eviction if the rent is not paid in full. 

Security deposit return with multiple tenants 

The tenants vacated at the end of the lease, and upon the landlord’s request, sent different addresses for the return of the security deposit. The landlord needs to deduct the late fees authorized as a basis for security deposit withholding in the Nonstandard Rental Provisions. Where would the landlord send the check, and to whom should he make it out? 

The rules for the return of security deposits and withholding from residential security deposits are found in Wis. Stat. § 704.28 and Wis. Admin. Code § ACTP 134.06. According to § ATCP 134.06(2)(d), “If a landlord returns a security deposit in the form of a check, draft or money order, the landlord shall make the check, draft or money order payable to all tenants who are parties to the rental agreement, unless the tenants designate a payee in writing.” 

Unless the broker has received the same written direction from all tenants regarding the return of the security deposit, it may be returned (less authorized withholding) in a check that is payable to all tenants and they may determine how that amount should be divided themselves. Also, per § ATCP 134.06(2)(c), if a tenant surrenders the premises without leaving a forwarding address, the landlord may mail the security deposit or withholding statement to the tenant’s last known address (typically the rental unit itself).

The landlord may choose one of the addresses offered and inform the other tenant(s) of where the check was sent and the fact that it was made out to all tenants. 

Stuff left behind

What are the new rights of a landlord to dispose of tenant’s property? A tenant vacated the unit and left behind some personal property. The landlord believes that the remaining property is abandoned. Under the new Wis. Stat. § 704.05, when can landlords dispose of the property? Did the landlord have to give written notice? 

Wis. Stat. § 704.05(5) has been overhauled and now provides that landlords may presume that property tenants leave behind is abandoned and may dispose of it in any manner that the landlord believes appropriate, if and only if, the landlord first provided written notice to the tenant. The written notice must be provided to the tenant when the tenant enters into or renews a rental agreement and must indicate that the landlord will not store any personal property the tenant leaves behind.

If the prior notice was given, the landlord may dispose of “stuff” left behind by placing it in the dumpster, selling it or finding another disposal method. The landlord can dispose of property left on the premises regardless of whether it is owned by the tenant or someone else. The tenant or any secured party has the right to redeem the property at any time before the landlord has disposed of it, or entered into a contract for its disposition, by payment of any expenses that the landlord has incurred with respect to the disposition of the property.

There are two exceptions to the general rules: one for medical items and the other for manufactured homes, mobile homes and titled vehicles. With regard to medical items, the revamped § 704.05(5) indicates that if a tenant leaves prescription medicine or prescription medical equipment behind, the landlord must hold those items for at least seven days after the landlord discovers those items and must promptly return them upon the tenant’s request. If the property left behind is a manufactured home, mobile home or a vehicle of some sort — such as cars, boats, snowmobiles or mopeds — the landlord must give notice before selling it or otherwise disposing of it. Notice must be given to the tenant, and to any secured party that the landlord has actual knowledge of, by regular or certified mail to the last known address.

Remember that the landlord must give written notice that the landlord will not store any personal property the tenant leaves behind when the tenant enters into, or when the tenant renews, a rental agreement before the landlord may dispose of tenant’s personal property in what the landlord deems to be an appropriate manner. 

Non payment of rent

Does a landlord have the right to disconnect the utilities to a rental unit or lock the tenant out if the tenant has become delinquent in paying his rent? The landlord has made several attempts collecting rent, but the tenant has not answered the door when the landlord knocks, nor has the tenant returned phone calls to the landlord.

Wisconsin does not allow a landlord to engage in “self-help” evictions. “Self-help” evictions relate to conduct were a landlord attempts to force a tenant out of a property without the use of the judicial eviction process. For example, it is illegal for a landlord to stop utility services, change locks or remove the tenant’s possessions. If a tenant is late or stops paying rent altogether, the landlord may give the tenant written notice regarding that deficiency. Landlords must review Wis. Stat. §§ 704.17-.19 to determine what type of notice to use and whether the tenant has the right to cure the default or must simply move out. See pages 5-7 of Legal Update 03.07, “Residential Rental Primer” at www.wra.org/LU0307 for a detailed discussion of which notice form is appropriate depending on the type of tenancy and the kind of default involved.

Security deposit withholding

A tenant damaged the living room carpet. Its condition is beyond repair and/or cleaning and must be replaced. Can the fees for replacing the carpet legally get taken out of the security deposit?

Typically, a landlord can take from the security deposit for damage beyond normal wear and tear. The landlord should be aware, though, that when calculating the value for the tenant’s damage, it would be inappropriate to use the replacement value of the new carpet. 

The value that the landlord can deduct depends on the value of the carpet at the date of move-in minus normal wear and tear to give the value of what the carpet should have been at the move-out date. Take this figure and subtract from it the actual current value of the carpet, and that would be the damage amount.

Frozen pipes

The landlord gave the tenant instructions about heating the unit to avoid freezing pipes. The tenant did not heat the unit as instructed, and the pipes underneath the slab froze, and other pipes broke as well. The tenant denies responsibility and now refuses to pay rent but is staying until he finds another place. The tenant is demanding his security deposit back. How should the landlord proceed?

According to Wisconsin statutes and the lease, both the landlord and tenant have duties to maintain the premises. In light of the contradictory statements made by the landlord and tenant about the responsibility for the frozen pipes, it may be in their best interest to negotiate a mutually agreeable solution. The landlord and tenant may take into account the rent abatement provisions of the statute that provide, in part, “If the tenant remains in possession, rent abates to the extent the tenant is deprived of the full normal use of the premises. This section does not authorize rent to be withheld in full, if the tenant remains in possession.” 

If negotiations are not successful, the landlord may consult with a plumber or other maintenance providers to determine a potential cost to repair the damage caused by the frozen pipes. Whether the landlord can justifiably withhold from the security deposit for the damage may depend on how the court allocates responsibility for the frozen pipes. Prior to withholding, the landlord would be well served consulting with legal counsel. 

Tenant turned homeowner

A renter has an existing lease. Can the renter break that lease without penalty if they purchase a home in Wisconsin?

Whether a tenant can terminate a lease before its expiration date without a penalty will depend on the terms of the lease. There is not an automatic right to terminate a lease without penalty in Wisconsin because the tenant is purchasing a home. A lease may be terminated by the mutual agreement of the landlord and the tenant. Alternately, if the tenant anticipates purchasing a home, the lease can be negotiated to contain a provision that permits the tenant to terminate a lease before its expiration if the tenant is successful in purchasing a home.

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

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