Rental Properties and COVID-19


 Jennifer Lindsley  |    May 11, 2020
Rental Properties

On March 25, 2020, Executive Order #12 Safer at Home went into effect in Wisconsin. On March 27, 2020, Executive Order #15 Temporary Ban on Evictions and Foreclosures went into effect. Both orders impact landlords and licensees with respect to evictions and the landlords’ and licensees’ abilities to show, rent and sell rental properties for the duration of these orders.

Landlords entering rental properties

Executive Order #12 Safer at Home (Order #12) went into effect at 8:00 a.m. on Wednesday, March 25, 2020, and at press time, will remain in effect until 8:00 a.m. on Tuesday, May 26, 2020, or until a superseding order is issued. Rental property management is considered an ‚Äúessential business‚ÄĚ per the order. Order #12 restricts entry by landlords or property managers into leased units except for emergency maintenance. Section 3 of Order #12 is titled ‚ÄúProhibited Activities‚ÄĚ and includes the following statement: ‚ÄúLandlords or rental property managers shall avoid entering leased residential premises unless emergency maintenance is required.‚Ä̬†

Emergency maintenance

The order does not elaborate on what would be considered emergency or non-emergency, routine maintenance. If there is any doubt as to whether maintenance is an emergency, the landlord and tenant may consider delaying the maintenance until a future date. The prohibition pertains to leased units so landlords and property managers are not prohibited from entering vacant units that are not currently leased for routine maintenance, though all other parts of Order #12, such as the ban on public or private gatherings of people that are not of the same household and the social distancing requirements, are all still in effect.  

Showing leased units

Order #12 limits entry of landlords and property managers into leased units except for emergency maintenance. This limitation
means that landlords and property managers cannot show leased units to new potential tenants for the duration of Order #12. A tenant cannot waive this prohibition and permit a landlord to show an occupied unit to new potential tenants. Order #12 is in place to protect Wisconsin‚Äôs citizens and, therefore, they arguably cannot waive any ‚Äúrights‚ÄĚ under it. Additionally, the ban on private or public gatherings of any number of people that are not part of a single household prohibits showing leased units to future potential tenants even if the existing tenant consents to showing. Landlords may consider asking existing tenants to assist future rental efforts by providing videos or photos of the existing unit that could be used to advertise the unit for future rentals. As with the maintenance, the limitation on showing units is only for leased units so landlords may show vacant units that are not currently leased if all other provisions of Order #12, such as social distancing requirements, are observed.

Licensees entering rental properties that are listed for sale

Order #12 designates real estate services as essential business and generally prohibits landlords and property managers from entering leased residential dwelling units. Accordingly, Order #12 permits those who need to enter leased premises for the purpose of a purchase/sale real estate transaction to do so if they follow the safety standards outlined in Order #12. However, if a tenant refuses entry into the leased premises, the parties are encouraged to respect the wishes of the tenant and try to find alternative solutions to show, inspect or appraise the premises for the purpose of a sale transaction.

Temporary ban on evictions and foreclosures

Executive Order #15 Temporary Ban on Evictions and Foreclosures (Order #15) was issued on March 27, 2020, and went into effect immediately. Order #15 is in effect for 60 days. Order #15 temporarily bans landlords from evicting tenants except in limited circumstances and is applicable to both commercial and residential properties. Nothing in Order #15 relieves an individual of an obligation to pay rent, mortgage or any other obligation of a tenancy or mortgage. 

Serving notice

Landlords are prohibited from serving a notice to terminate a tenancy for failure to pay rent for the duration of Order #15. Landlords are prohibited from serving a notice to terminate a tenancy for any reason unless the landlord reasonably believes failure to commence the eviction action will result in an imminent threat of serious physical harm to another person. If a landlord is pursuing an eviction because of the landlord’s reasonable belief that failure to do so will result in an imminent threat of serious physical harm to another person, the landlord must attest in an affidavit to the landlord’s reasonable belief and the basis for that belief. 

Commencing an eviction

For the duration of Order #15, landlords may not commence an eviction action for failure to pay rent. During this time, a landlord may only commence an eviction action if the landlord attests by affidavit that it is not for failure to pay rent and that it is due to the landlord’s reasonable belief that failing to proceed with the eviction will result in imminent threat of serious physical harm to another person. Order #15 does not alleviate a tenant’s obligation to pay rent. The rent will continue to accrue unless the tenant and the landlord agree to other terms. This is simply delaying an eviction that could have otherwise been filed for failure to pay rent or another breach until the end of Order #15. 

Enforcing an eviction

Sheriffs may not enforce eviction orders for the duration of Order #15 unless the eviction was not based on a failure to pay rent and the order is accompanied by an affidavit attesting that the eviction was not based on failure to pay rent and that the landlord reasonably believes that failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person.

Foreclosures

Mortgagees are prohibited from commencing a foreclosure action for real estate and are prohibited from requesting or scheduling a sheriff’s sale of the mortgaged premises. Sheriffs may not conduct a sheriff’s sale nor act on any order of foreclosure or execute any writ of assistance during Order #15. These prohibitions do not apply to abandoned property where the property had been determined abandoned by a court. Whether a property is abandoned for purposes of foreclosure requires a finding from a court and cannot be determined by the mortgagee. 

Jennifer Lindsley is Director of Training and a staff attorney for the WRA.

Emergency Order #12 Safer at Home Order SECTIONS 3 & 16

Section 3. Prohibited activities. All public and private gatherings of any number of people that are not part of a single household or living unit are prohibited, except for the limited purposes expressly permitted in this Order. Nothing in this Order prohibits the gathering of members of a single household or living unit. Landlords or rental property managers shall avoid entering leased residential premises unless emergency maintenance is required. 

Section 16. Social Distancing Requirements. For purposes of this Order, Social Distancing Requirements includes maintaining social distancing of six (6) feet between people; washing hands with soap and water for at least 15 20 seconds as frequently as possible or using hand sanitizer; covering coughs or sneezes (into the sleeve or elbow, not hands); regularly cleaning high-touch surfaces; not shaking hands; and following all other public health recommendations issued by DHS and the U.S. Centers for Disease Control.

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