| Litigation

By:  Nicholas J. Linz, Attorney at Hager, Dewick & Zuengler, S.C

Governor Walker recently signed a bill into law which amends several existing landlord-tenant statutes.  With the passage of 2015 Wisconsin Act 176 (“Act 176”), effective March 2, 2016, landlords are now equipped with a more effective and realistic procedure to address common headaches and remove problem tenants.

While Act 176 revises a number of sections of the State’s landlord-tenant laws, this article will address three changes which may have a significant effect upon local landlords and tenants.  One such change aims to protect landlords and other tenants from criminal and drug-related activity.  Under the old law, a landlord with knowledge of criminal or drug-related activity taking place within a rental unit was required to serve the tenant with a five-day right to cure notice before being able to start an eviction action.  The tenant could avoid eviction by simply stopping the criminal or drug-related activity within the five-day notice period.  From a practical perspective, the five-day right to cure notice was an ineffective tool to curb behavior which significantly increases the landlord’s liability exposure and decreases the safety of the landlord and other tenants.

Act 176 allows landlords to terminate a tenancy by serving a non-curable five-day notice upon a tenant who has engaged in or who permits family members, guests, or invitees to engage in certain criminal or drug related activity within the rental unit.  The notice must contain the following information: (1) notification that the tenant must vacate the rental unit within five days of service of the notice; (2) a description of the criminal or drug-related activity, including the date which it took place and the identity or a description of the person(s) involved; (3) notification that the tenant may seek assistance from legal counsel, a volunteer legal clinic, or a tenant resource center; and (4) notification that the tenant may contest the allegations before a court commissioner or judge if an eviction action is ultimately filed.

A tenant does not need to be arrested for or convicted of a crime to trigger a landlord’s right to terminate tenancy by sending a non-curable five-day notice.  However, not all crimes or drug related activity will trigger such a right and Act 176 does not specifically define which crimes will apply.  The criminal activity must threaten the health, safety, and peaceful enjoyment of other tenants, threaten the health or safety of the landlord, or involve the manufacturing or distribution of controlled substances.  Possession or use of a controlled substance in or around the rental unit will not trigger this right.  Further, the lack of definition as to which criminal activities will apply leaves room for judicial discretion.  Finally, a five-day non-curable notice may not be served upon a tenant who is the victim of the criminal activity.

Another change brought about by Act 176 relates to the service of notice terminating the tenancy of a repeat offender.  The overall procedure has not changed.  A tenant who commits a non-monetary breach of the lease may be served with a five-day right to cure notice.  If the tenant breached the lease again within twelve months, the landlord could terminate tenancy by service of a non-curable fourteen day notice.

Under the old law, the fourteen day notice had to be served prior to the tenant’s remedying the breach.  Practically speaking, it was difficult for landlords to serve this notice contemporaneously while the tenant is committing certain types of repeated but temporary breaches of the lease such as excessive noise, smoking within the rental unit, or illegal parking.  Act 176 allows landlords to serve a fourteen-day non-curable notice terminating tenancy after the repeated breach has occurred.  Notwithstanding this change, a landlord who wishes to terminate a tenancy with a fourteen-day notice should promptly serve it upon the tenant, so as to avoid the inference that the landlord has acquiesced to the tenant’s continued tenancy in spite of the breach.

The final change which this article will mention relates to dealing with trespassers.  The definition of a trespasser has been redefined to mean anyone who remains on the property after consent is withdrawn from a lawful tenant, or landlord (if there is no lawful tenant).  Further, Act 176 requires that law enforcement have a written policy requiring officers with probable cause that a trespass is being committed to remove the trespasser from the property.  This change may be useful for tenants who wish to remove a guest, ex-boyfriend, or ex-girlfriend who is not on the lease and who refuses to leave.  If a trespasser is removed from the property and leaves personal property behind, the landlord must hold the personal property for a period of at least seven days before disposing of it.

The topics discussed in this article are among those which are most likely to have a significant impact upon local landlords and tenants.  However, this article does not address Act 176 in its entirety.  Those interested in learning more about the changes brought about by the passage of Act 176, and how said changes may effect leases and/or notices to tenants, should contact an attorney with knowledge of landlord-tenant law.