New Laws, Round 6 - Tenant Resource Center



New Laws, Round 6

Hey Friends -

Big changes are afoot! On Tuesday, April 17, 2018, Gov. Walker signed 2017 Wis. Act 371 into law. Therefore, the effective date is today, April 18, 2018. 

The most important things you should know:

  • All the changes tenant-landlord law changes are available here in our summary
  • The changes are not reflected in the statutes (the legislative reference bureau says it'll be up next week). They are legally enforceable, though. So, for example: Wis. Stat. 704.07(3)a is supposed to have subsections 1 and 2, under the new law. But, as of this writing, there are no subsections. So, to everyone citing things in the laws: please be careful!

Below is our list of things that we think will be most impactful to tenants and landlords.

1. Changes to Eviction Process (2017 Wis. Act 317, Sec. 48)

The (very, very) basic eviction process is like this: a tenant commits a violation of the lease (through not paying rent or not following the lease rules), the landlord gives an eviction notice that is simply a piece of paper with a deadline for the tenant to get out or fix the problem (different notices are valid for different situations). If the tenant doesn't get out or leave based on the notice, then the landlord can take the tenant to eviction court for an initial hearing, at which point the tenant is allowed to ask for a full trial. (Much more information available here)

Now, there's a change in this process. In the initial hearing, the tenant or landlord must raise "valid legal grounds" in order to get a trial with a judge. Previously, a party only had to "contest" and a hearing would be set. 

It is not at all clear how judges will handle this. Is simply contesting the same as raising valid legal grounds? Perhaps. Or does a party have to make a motion with fully cited laws? This isn't clear, though the intent of the legislators seemed to be on the informal side. This is the one where the laws really don't make clear what the plan is here, and we will wait and see how it all plays out.

2. Changes to Eviction Notices (2017 Wis. Act 317, Secs. 44 & 45)

Anytime someone tinkers with eviction law, it impacts vulnerable populations at their most vulnerable moment. Any changes to eviction notices are a big deal. There are 2 parts to these changes in eviction notices: 

  • Change #1 to Eviction Notices: For the purposes of 5-, 14-, or 30-day notices for breach of a rental agreement “rent” means rent and late fees. (This is codification of current practice - not such a huge shift).
  • Change #2 to Eviction Notices: Sometimes a 5-, 14-, or 30- day eviction notice is invalid because it has the wrong amount of money on it. The new law says that a notice is valid EVEN IF the amount due is wrong, UNLESS: the landlord’s statement is intentionally incorrect, or the tenant paid the amount they thought was due. 

To us, it seems like there's a lot of problems with change #2, but we'll see how all of that pans out. For everyone involved with an eviction notice that has the wrong amount on it, we highly encourage putting A LOT of information in writing. 

3. Repairs (2017 Wis. Act 317, Secs. 37 & 38)

Repair laws have changed slightly. The types of things for which landlords and tenants are responsible haven't changed. But! Now landlords can charge for their time. This is new! What will it mean? It's hard to say.

In our experience, across Wisconsin, landlords *were* charging for their time when they were doing repairs/cleaning. It seems, when applied to repairs that were necessary, that judges thought this practice was generally okay (although we heard stories of judges who were not best pleased by such things and threw those charges out). Now, landlords are definitely allowed to charge for their time, in doing repairs, and also managing the doing of repairs. This is a big change!

Our general thought is, that if landlords wish to make these charges, they need to have a really good system for tracking their time, making sure that they allocate it correctly and reasonably, and definitely don't double-charge multiple tenants for their time in overseeing such things. But, we'll see how judges deal with these kinds of charges, and what they need as proof that the time was reasonably spent.

4. Emotional Support Animals (2017 Wis. Act 317, Secs. 28, 29, 30)

The background information: Service Animals and Emotional Support Animals are different. Generally, Service Animals are trained to provide a service (like seeing eye dogs), while ESAs don't have that high-level service requirement but are nonetheless necessary in the treatment of a disability. Both are considered reasonable accommodations for a disability in a housing context. (More information is available! Here's our page on Service Animals and previous thoughts on Emotional Support Animals is here.)

Prior to this law, Wisconsin had not defined Emotional Support Animals. This law defines ESAs as an animal who gives
“emotional support, well-being, comfort, or companionship” to a person with a disability, and prohibits discrimination or denial of housing to the person based on them having and ESA. (This is the same as what people were mostly doing.)

The difference now is that these laws are on the books, and are cite-able! Which is kind of exciting! There are some new rules to go with: 

  • The landlord may request that the tenant provide documentation from a “licensed health professional” showing the tenant has a disability and a disability-related need for the animal (unless the disability and disability related need is readily apparent or known.) NOTE: Licensed health professional is defined as a physician, psychologist, social work or other health professional who is: licensed or certified in Wisconsin, and acting within the scope of that license or certification.
  • If an ESA damages the property, or defecates on the property, then the landlord can hold the tenant responsible for those charges. (Note: this is absolutely not the same as pet charges, which are not allowed, because these aren't "pets." Rather, they are reasonable accommodations for a disability).
  • If anyone in this process intentionally misrepresents the need for an ESA, then they can be given a $500 charge through a complaint to a court, and then a decision by a hearing examiner or administrative law judge.

Since this is new, and since discrimination can be a Very Big Deal for both the people experiencing it and the landlords if they are found guilty of it, it's a good idea to go carefully here. For landlords: this gives you some direction, and that's a good thing. We encourage you to be flexible in implementing these new laws - since they only impact folks with disabilities, proving disparate impact (a core component of fair housing lawsuits) will be easy.

We encourage everyone to talk reasonably about what they need in implementing this law (an out of state student, for example, might find it hard to get an in-state provider to give the required documentation, even though they have a fully licensed provider willing to vouch for their need, from out of state). Landlords, we recommend coming up with a plan (ie, giving all tenants at least a month to get the new required documentation), and tenants, we encourage you to ask in writing for what you need to meet the requirements of this law.

5. CCAP (2017 Wis. Act 317, Sec. 46)

All eviction records in Wisconsin get stashed in the Wisconsin Circuit Court Access website (which we call CCAP, which we should probably more accurately refer to as WCCA). Prior to this law, cases would stay online for 20 years unless they were dismissed outright. Many cases, especially in Dane County, are getting settled at court (without the full eviction judgment), but then the online record prevented many people from finding housing, even if they satisfied the term of their settlement with the landlord. (More on CCAP here). 

But now! Things have changed! The new law says that if a "writ of restitution" has been granted (that's the eviction judgment), then it can be taken down after 10 years on CCAP. The law also says that an eviction case record can be removed after 2 years if it has been dismissed and no money judgment has been docketed.

There's a middle ground here - what about stipulated dismissals? Those cases where the tenant and landlord settle at court? Since there's nothing clearly stated, it looks like those records could come off of CCAP if no judgment is issued (the settlement or stipulated dismissal has to be fully carried out, without anyone saying it didn't happen), and if no money is docketed (a special court order for money to be paid).

We are interested to see how this goes! If you have a case that you want to see taken down, the court has a form for that! It is here. And please let us know how that goes for you! We'd really like to hear.

6. Emails and texts now count as "in writing" (2017 Wis. Act 317, Sec. 42)

If a lease says that it's okay, a landlord can give a tenant notices and agreements through "electronic means." The law says that landlords can give: copies of the lease, security deposit return notices, promises to clean or repair a unit, and advance notice for entering the rental unit. 

Generally, we see this as good news - codification of what people have been doing anyway (with mixed results since not all judges accepted that way of things). However, there are flaws: what happens if a landlord wants to communicate electronically, but a tenant can't receive those communications (they don't have email or cell phone data)? What happens if the landlord misspells someone's email address and thinks they are communicating in a way that's guided the law but really aren't? 

To do this well, we think that landlords would need to be very careful in: checking that the email or text address really works before sending Very Important Messages, always sending a paper version about really important things, and having a good method to save messages before you start sending Official Electronic Messages (text messages especially can be super super difficult to track down and verify).

Since this is something that has to be written into the lease, it's only valid for leases signed or renewed today or after, provided that the clause is in that lease documentation.

7. Credit Checks and Background Checks (2017 Wis. Act 317, Sec. 41)

Landlords often collect application fees before someone rents, and often use part of that money to run a credit check. This is all still true, and a landlord can still only charge the amount they pay to get that credit check fee. A tenant can still offer a credit report that's less than 30 days old and, if offered, the landlord cannot charge a credit fee. More information is here

However! Some pieces of this have changed: the landlord can now charge up to $25 for a credit check fee (it was $20). And now, if a prospective tenant is currently living out of state, a landlord can charge up to $25 for a background check in addition to the credit check fee. The tenant must be informed of the charge before it happens, and provided a copy of that report. 

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That's it, folks! We'll update things on this website as soon as we are able. Please contact us if you have any questions. 

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Hi! Did you know that we aren't attorneys here at the TRC? And this isn't legal advice, either. If what we've written doesn't sound right to you, consult with someone you trust. A list of housing attorneys is available here. If what we've written was helpful to you, please consider making a donation

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