COVID-19 FAQ for Tenants and Landlords - Tenant Resource Center - [TRC]



COVID-19 FAQ for Tenants and Landlords

Note: This page was last updated on Thursday, May 14th, 2020.

Hello, my dears. What a strange time we seem to be living in, isn't it?

We've gotten a lot of questions about COVID-19, and how it is impacting tenant-landlord law here in Wisconsin. You can find our best answers below, but first, a few crucial takeaways:

  • THE TRC IS STILL (REMOTELY) OPEN! But, we are NOT accepting walk-ins. All our incredible staff and volunteers are working from home to return phone calls and answer emails. You can still contact us if our website doesn't answer your questions.

  • THIS IS A RAPIDLY EVOLVING SITUATION. TRC staff is working diligently to add updates once we have them, but you should check back here frequently, otherwise you may be making decisions based on out-of-date information. In particular, Governor Tony Evers' Safer at Home Order and Eviction Moratorium (see here and here), as well as the Wisconsin Supreme Court's decision on May 13th, 2020 to strike down the Safer at Home Order, impact a lot of tenant-landlord law, so while we can offer some insights, there is still some educated guesswork involved. We are updating this page as we see what's actually going on and we hear from folks about their experiences.

  • As always, we are not attorneys. We cannot give you legal advice. We can tell you what the laws say and how individuals, businesses, and governments are responding to the pandemic's impact on rental housing, but not what choices you should make. 
Here are some of the questions we've been hearing (jump to the bottom if you're confused about how the laws relate to one another):
Question #1: I'm a tenant in Dane County and I was not able to make rent in April and/or I am not going to be able to make rent in May, what should I do?

The short answer: First and foremost, communicate this fact to your landlord. Second, check out the Governor's Emergency Executive Order #15, which prohibits landlords from serving any notice terminating a tenancy for failure to pay rent until at least May 26th, 2020. Third, call TRC's Coordinated Entry line at 608-257-0006 ext. 7 to get screened for eviction prevention funds.

The long answer: Our Coordinated Entry staff are the starting point for any tenant in Dane County hoping to get help paying their rent. We, along with other agencies, are applying for funds as they open up, and we are the agency in Dane County responsible for directing those funds. Our staff is staying as up to date as possible to provide accurate information about which resources are available in the community to help with this issue. So, the first step is to call the TRC at 608-257-0006 ext. 7, leave a message, and wait for staff to get back to you (typically within 1-2 business days). 

What actions could I take?
  • Keep a good paper trail of what you owe, why you are short on rent, and what you have agreed upon with the landlord. If you are behind on rent because of COVID-19 - your employer cut your hours, you weren't able to work because schools were closed due to the epidemic, you were sick with COVID-like symptoms, or you were caring for a family member with symptoms - it is a good idea to explain that to the landlord, in writing. Here's more info about putting things in writing
  • Pay what you can. The more back rent a tenant owes, the less likely it is that they will be able to clear up that back balance. While a tenant owing any amount of back rent presents valid grounds for a landlord issuing an eviction notice to that tenant, landlords may be more willing to work something out with a tenant who has demonstrated their commitment to paying some portion of the rent. If this is the case, consider putting something in writing to the landlord, along with your partial payment, explaining the circumstances that led to you only being able to pay part of your rent. 
  • Only sign agreements that you genuinely think you can follow. At this point, it's still unclear how the court system is going to handle the eviction cases that are heard once the courts re-open, and having an agreement that you signed and then didn't follow won't help you.
  • Keep your lines of communication open. This is a terrifying situation, and it's easy to shut down. But, the more resources you are accessing, the more likely you are to come through this safely. In order for Tenant Resource Center staff to be able to process payments for tenants who are behind right now, we need to be able to get in touch with landlords and property managers, many of whom may not necessarily be working full time right now. Again, we stress that you try to be both patient and persistent in your efforts to connect with your landlord.

What actions can my landlord take/What actions can I take if I am a landlord?

  • Emergency Executive Order #15 states that, for the duration of the eviction moratorium, "landlords are prohibited from serving any notice terminating a tenancy for failure to pay rent" and are "prohibited from serving any notice terminating a tenancy unless the notice is accompanied by an affidavit attesting to the reasonable belief, and the basis thereof, that a failure to commence eviction proceedings will result in an imminent threat of serious physical harm to another person." 
    • Under normal circumstances, Wisconsin Statute 704.17 governs the process by which landlords can terminate a tenancy for failure to pay rent or other breach by the tenant and Wisconsin Statute 704.19 governs the process by which landlords can terminate a periodic tenancy. Both of these sections mention "giving the other party notice". The Executive Order, by the authority vested in the Governor by the Constitution and laws of Wisconsin, specifically Wisconsin Statute 323.12(4), appears to temporarily preclude landlords from taking action based on Wisconsin Statutes 704.17 &.19.
  • Emergency Executive Order #15 also states that, for the duration of the order, "landlords are prohibited from commencing a civil action of eviction unless...the eviction action is not based on a failure to pay rent, and the judicial action seeking eviction is accompanied by an affidavit attesting that the eviction is not based on a failure to pay rent and to a reasonable belief, and basis thereof, that a failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person." 
    • In other words, landlords cannot bring a tenant to court for an eviction unless they have officially signed something signaling that the eviction is needed to keep someone safe. The intent of this exception appears to be to protect victims of crimes and survivors of domestic abuse. 
  • Emergency Executive Order #15 also states that, for the duration of the order, "Landlords may not deliver a writ of restitution to the sheriff, nor may the sheriff act on eviction orders unless...the eviction order was not based on a failure to pay rent, and the writ of restitution is accompanied by an affidavit attesting that the eviction is not based on a failure to pay rent and to a reasonable belief, and the basis thereof, that a failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person."
    • In other words, landlords cannot obtain a writ of restitution from the court (which the paperwork the landlord gets from the court to prove that they "won" the case, or that they obtained a judgement in their favor). Under normal circumstances, once a landlord obtains a writ of restitution, they bring the writ to the county sheriff's department, who then "executes" the writ, meaning that they physically go remove the tenant from the rental property. The governor's order also prohibits sheriffs from doing that final part of the eviction process.  
  • Per an emergency addition to the Wisconsin Department of Agriculture, Trade, and Consumer Protection's Residential Rental Rights Chapter 134, landlords are prohibited from assessing late fees until September 21st, 2020. See here for more information.
  • All that being said, landlords can still keep track of a tenant's balance, notify the tenants if they fall behind on rent, and work out payment plans with their tenants. The final section of the order states that "no provision in this order should be construed as relieving an individual of their obligations to pay rent...or another other obligation an individual may have under a tenancy". 
    • In other words, this order does not cancel rent or prevent a landlord from initiating an eviction action as soon as the moratorium expires on May 26th, 2020 (unless the rental property is a "covered property" under the federal government's CARES Act).  


Question #2: Can my landlord, agents of my landlord, or employees of my landlord come into my unit for showings or inspections?
*NOTE: As of May 13th, 2020, the answer to this question depends on where you live in Wisconsin. The state's Supreme Court struck down the Safer at Home Order, but many counties and municipalities have issued their own versions of the order. Click here for a list of those locations and their orders.

The short answer: No, Executive Order #28 states that landlord entry is not okay in almost all circumstances. 

The long answer: Gov. Evers issued Executive Order #12, which went into effect on March 25, 2020. Section 3 of this Executive Order says, "Landlords or rental property managers shall avoid entering leased residential premises unless emergency maintenance is required." Executive Order #28, an extension and update of #12, contains the exact same language. 

Additionally, Order #12 says, "All for-profit and non-profit businesses with a facility in Wisconsin, except Essential Businesses and Operations ... are required to cease all activities at facilities located within Wisconsin." Landlords are not on the list of "Essential Businesses and Operations," with the exception of governmental "housing and shelter personnel" (in section 12) and charitable agencies that provide "shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals" (in section 13(g)).

It is possible, if your landlord is a governmental or charitable agency, that they may have more leeway to enter, though that is still not recommended by the order. If governmental/charitable landlords do enter, they must follow the order's social distancing protocol - standing 6 feet away from people, using hand sanitizer, and otherwise taking all available precautions. Otherwise, with most situations we see, where a landlord is a private property owner, showing and inspecting an occupied unit do not seem to be allowed by the order.

Note: the landlord should still be giving 12 hours notice to enter. Other landlord entry laws still apply. More info here

But what do I do? We can't tell you that since we aren't attorneys. Options for tenants to enforce this law include:
  • Communicate: Post a sign on your door, send an email, or mail a letter to your landlord. A tenant could say that because of Executive Orders #12 and #28, and because of the rapid spread of COVID-19, you believe that regular inspections and showings will endanger your health, and that you ask the landlord not to enter for anything besides emergency maintenance. A sample notice is here. (This gives the tenant an option to pursue charges of negligence later on, which isn't possible if you don't warn the landlord about their actions ahead of time.)
  • Offer an alternative: If a landlord wants to enter a unit to show it to prospective tenants or buyers, a tenant could offer to take photos of the unit and/or film a virtual tour on their phone and send these materials to the landlord, thereby eliminating the need to show the unit in person. This helps keep the current tenant, prospective tenants, landlord, landlord's staff, real estate agents, and everyone else involved socially distanced from one another and helps facilitate the re-leasing or sale of the property. While this is not required of the tenant, it can be useful to offer a constructive solution in situations like this. 
  • Inform law enforcement: Section 17 of Order #12 says, "This Order is enforceable by any local law enforcement official, including county sheriffs. Violation or obstruction of this Order is punishable by up to 30 days imprisonment, or up to $250 fine, or both. Wis. Stat. § 252.25." Section 18 of Order #28 contains the same language. A first step before calling law enforcement might mean copying them on any communication in which you inform the landlord they should not enter your unit.
  • Call law enforcement: While we recognize that contacting law enforcement may not be some tenants' first choice, given long standing issues in various communities, particularly communities of color, we want to present tenants with their full range of options, and calling law enforcement is clearly an enforcement mechanism in this order. Law enforcement may not be aware of their ability to enforce this order, so it might help to have a copy handy to inform them. A tenant, if they've received 12 hours notice, could also inform law enforcement of the time that the landlord intends to enter, rather than waiting until the landlord attempts to do so.
  • Sue later: A tenant can always choose to file a small claims suit after the fact. The amount of money a tenant would be suing for in this instance would be equal to the actual and real costs they incurred as a result of the landlord's actions or inaction, also known as financial damages. If planning to sue, we highly encourage tenants to keep a detailed paper trail of the sequence of events. More information on how to get things in writing here
  • Break your lease: A tenant can always choose to break their lease (to move out before the contract is complete). More about that here, and below. If you do not feel safe due to your landlord's actions, you always have a right to remove yourself from that situation. (See Question #6 for more on this option)
Question #3: My unit needs repairs. Does the landlord have to come into the unit and make repairs?
*NOTE: As of May 13th, 2020, the answer to this question depends on where you live in Wisconsin. The state's Supreme Court struck down the Safer at Home Order, but many counties and municipalities have issued their own versions of the order. Click here for a list of those locations and their orders.

The short answer: No, unless it is an emergency.

The long answer: Gov. Evers issued Executive Order #12, which went into effect on March 25, 2020. Section 3 of this Executive Order says, "Landlords or rental property managers shall avoid entering leased residential premises unless emergency maintenance is required." 

What do we do? How do we figure this out? Here are some steps that could be followed to try and work it out:
  • Communicate: If the tenant or landlord is aware of a repair that needs to be done, they need to inform the other party, whether or not it is an emergency maintenance situation. If you do believe it is an emergency, communicate that, as well, with as much documentation as you can provide. If you have any capacity to communicate with a paper trail (with letters or emails), we encourage you to do so. This can be a step you take along with verbal communication. 
  • Negotiate: These are unusual times, and it might be possible for a landlord and tenant to come up with solutions that are not ones they'd normally agree to. For example, a landlord might be willing to allow a tenant to make their own repairs and pay the tenant back, or might be willing to lower the rent if the tenant is willing to live with the problem for the duration of this crisis. There are lots of options, but for the safety of everyone involved, it's super duper important to have a strong paper trail. (If you're going the repair and reimbursement route, here's a post with some suggestions. As always, get it in writing.)
  • Call a Building Inspector: We haven't checked everywhere around the state, but here in Madison, Building Inspection offices are closed to the public until further notice, though their employees are continuing to support critical public services and responding to emails. For the City of Madison general Building Inspection assistance, please email bldginspect@cityofmadison.com, call (608) 266‑4551, or use the online "report a problem" system to have your inquiry recorded and addressed. You can also visit the Building Inspection Coronavirus (COVID-19) page for more information about changes to Building Inspection services.
  • If none of that works, you can follow the other steps listed on our Repairs page, which involves suing in Small Claims Court, or moving out because the home does not meet minimum standards of habitability, i.e. is not safe to live in. 
Question #4: What is happening with evictions in Wisconsin?

The short answerAS OF FRIDAY, MARCH 27th, 2020: Governor Evers' Emergency Order #15 prohibits landlords "from serving any notice terminating a tenancy for failure to pay rent" and "from serving any notice terminating a tenancy unless the notice is accompanied by an affidavit attesting to the reasonable belief, and the basis thereof, that a failure to commence eviction proceedings will result in an imminent threat of serious physical harm to another person." for 60 days (until May 26th). In addition to the state eviction moratorium, there is language in the federal CARES Act extending an eviction moratorium on all "covered properties" until the end of July (see here for more information). 

The long answer: Statewide, the Wisconsin Supreme Court issued orders "postponing jury trials and temporarily suspending in-person proceedings statewide, with certain limited exceptions" (from a press release). The order temporarily suspending in-person proceedings asks for "e-mail, teleconferencing, and video conferencing [to be used] in lieu of in-person courtroom appearances," and allows some in-person proceedings to continue (though small claims court proceedings do not seem to be on the list of exceptions). This order is to be followed through April 30.

Additionally, the Supreme Court also issued an order that does not allow jury trials until at least May 22, 2020. 

In each county, the presiding judge of that county can make decisions about what will remain open and what will not. In Dane County, Presiding Judge Bailey-Rihn issued 2 orders. One order suspends all writ of restitutions until further notice, which means that no evictions can be acted on, even if they are granted, or have previously been granted. (See our evictions page for more explanations about terms). The other order says that "cases will proceed as currently scheduled unless otherwise notified by the Court." In practice, we are seeing that it is still possible for landlords to electronically file eviction cases, that eviction cases are not being heard or scheduled until after April 17th, and no writs are being carried out by the sheriff at this time.

However, even though the courts are not dealing with evictions, many people are facing a loss of income due to this emergency, and many renters are getting behind in rent. The reasons that someone may be evicted are still building, and the courts' orders do nothing to stop that. When evictions are once again allowed by court, many folks will owe back rent, with few ways to cope with that loss in ability to pay. So, while this is a good first step to slow the spread of this virus due to housing instability, we still expect to see a flood of eviction cases scheduled once the moratorium is lifted.
With the Emergency Order issued on Friday, March 27th, landlords cannot serve any notice terminating tenancy to tenants, unless a tenant has committed a crime related to domestic violence and the survivor invokes certain protections afforded to them under the state's Safe Housing Act (see here for more information) OR the tenant's lease agreement has language in it making it a lease violation to do something that creates the imminent threat of serious physical harm to another person on the premises.

What actions could I take?
  • If you're a landlord: It's important to follow all your regular internal documentation of lease violations, and just... hold tight. You can negotiate with your tenants, and sign agreements, but the tenants don't have to sign anything they don't choose to, and the court won't enforce anything until after May 26th. Likewise, if your tenant wants to negotiate a payment plan or other kind of agreement, you don't have to sign anything you don't choose to. See below for options regarding mortgage forbearance. It's important to note that, as of April 25th, 2020, landlords in Wisconsin are prohibited from charging tenants fees for unpaid or late rent, until September 21st, 2020. See here for more information.
  • If you're a tenant: It's important to continue to follow your lease as much as you can. If you get behind in your rent, it's a good idea to let your landlord know if it's due to COVID-19, preferably in writing. If your landlord offers you an agreement about moving out/lease violations/late rent, and you don't feel like you can do it, don't sign it - it won't help you if your landlord has something in writing that you weren't able to follow. If there's an ongoing eviction case that you need help with, you can still re-open cases, though you will likely have to do that electronically (here's the form to reopen a case). See below for resources about paying rent. 
Question #5: I'm a landlord and my tenant can't pay their rent, what should I do?

The short answer: Verify & document the situation, ask your mortgage lender for assistance and guidance, and wait.

The long answer: Governor Evers' Emergency Order #15 prohibits landlords from serving any notice terminating a tenancy for failure to pay rent for 60 days beginning on Friday, March 27th, 2020, and continuing until Tuesday, May 26th at the earliest. The CARES Act prohibits landlords of "covered properties" from serving any notice terminating a tenancy for failure to pay rent until the end of July (see here for more information). And once the temporary moratoria are lifted, the courts will begin hearing cases again, most likely in chronological order.

Many mortgage lenders have policies that will give a break to landlords who are not evicting tenants. On March 22, the Federal Housing Finance Agency announced "that Fannie Mae and Freddie Mac will offer multifamily property owners mortgage forbearance with the condition that they suspend all evictions for renters unable to pay rent due to the impact of coronavirus."  Additionally, Marketplace explains that "Fannie and Freddie are offering mortgage forbearance to apartment building owners if they agree not to evict tenants who face hardship because of the crisis." Specifically:
  • Freddie Mac says that they will be "providing mortgage forbearance for up to 12 months," and "halting all foreclosure sales and evictions of borrowers living in Freddie Mac-owned homes until at least May 17, 2020," and
  • Fannie Mae says that "homeowners impacted by this national emergency are eligible for a forbearance plan to reduce or suspend their mortgage payments for up to 12 months," and "foreclosure sales and evictions of borrowers are suspended for 60 days."

To us, this appears to mean that in order for a landlord to qualify for these relief programs, they'd need to "suspend all evictions for renters unable to pay rent due to the impact of coronavirus," which means that landlords need to: verify which situations are due to COVID-19, and suspend those evictions.

The state's Department of Agriculture, Trade, and Consumer Protection also recently added to the list of practices landlords are prohibited from engaging in, adding that landlords cannot assess fees for late payment or nonpayment of rent between April 25th, 2020 and September 21st, 2020. See here for more information


What actions could I take?

  • Have a system to figure out which evictable situations are due to COVID-19, and which are not. You might have a form that you provide for folks (here is a sample letter), or you might have another system. Please be careful to offer all tenants the ability to verify their evictable circumstances are due to COVID-19 - doing otherwise could easily open you up to allegations of discrimination
  • Contact your lender. Each lender should be able to tell you what they can offer in terms of mortgage forbearance during this time. Get information from them about what would qualify you for any leniencies they might be offering. For those above, they seem to be saying that you would need to suspend evictions for renters impacted by COVID-19.
  • Consider making a no-evictions-due-to-nonpayment of rent rule during this public health emergency, even after the Safer at Home and Eviction Moratorium orders expire. As of April 18th, Wisconsin's Department of Workforce Development, the state agency that processes unemployment claims, was recently receiving more than 100 phone calls per second, has hired an additional 200 staffers, and has paid out more than $30 million in benefits to more than 100,000 people, see here. This is an unprecedented time, and many people will not immediately be able to get back to work, hire staff, train staff, or otherwise "get back to normal", whatever that will mean. Compassion, mutual respect, and forgiveness will be among the most important tools in rebuilding after the virus is controlled.
  • Check in regularly - with us, with the courts, with your lenders. Things are changing day by day, so to be completely sure that you're safe, it's a good idea to make sure your information is fresh.
Question #6: I am a tenant and need to break my lease and move out of my unit. What does that mean for the rent that I owe?

The short answer: Once you move out, this situation should be like a regular breaking a lease situation. In that case, the landlord must attempt to find new renters in order to be able to charge you rent. More explanation on breaking leases and mitigation here. 

The long answer: Many folks in Dane County are being forced to change their living situations due to this epidemic. Students are moving home, family is moving in together in order to care for one another. As a result, the housing market in the area (as well as everywhere) will likely experience a high degree of instability and confusion in the coming months.  

Breaking a lease means moving out before the end of the rental agreement. Normally in this situation, the landlord has an obligation to mitigate damages by showing the unit and finding new tenants, in order to lessen the amount owed by the tenant who is breaking their lease. Right now, because of COVID-19 and Gov. Ever's emergency order, landlords are not able to enter an occupied unit except for emergency maintenance. 

This means that a landlord can't start finding a new tenant until the leased premises is no longer occupied by the original tenant(s), which will likely slow the process. However, once the unit is unoccupied and is safe to enter, the landlord can begin showing the unit and can charge the original tenant rental costs until a new lease begins. If a landlord refuses to show a unit at all, then the original tenant could claim that the landlord failed to mitigate damages, and the tenant can fight the rental charges. More on this whole process here
NOTE: Since the coronavirus outbreak began, our housing counselors have been fielding calls from tenants and landlords alike who have concerns for their safety, the safety of their staff, and the security of their housing. While the law does require that landlords take normal steps to re-rent an apartment if a tenant breaks their lease and moves out early, many landlords are not showing units (in accordance with the Governor's Executive Order), not processing applications due to the uncertainty of prospective tenants' ability to pay with the threat of a recession looming, and not turning over units to keep maintenance and cleaning staff safe from potential infection. It is highly likely that if a tenant breaks their lease their landlord will have a very hard time re-renting the unit quickly, which means that the tenant may be on the hook for a substantial amount of money owed. Please, proceed with caution and weigh your options carefully in these difficult times. At this time, we don't know what will happen if a tenant contests their landlord's mitigation efforts under these circumstances.

What actions could I take?

 


How Law Changes Work
So, if you've been following along for the ride, we've actually experienced a lot of law changes in the last 10 years.  This is how they work:
  • There is an existing law. For example, Wis. Stat. 704.05(2) and ATCP 134.09(2) have the rules about what notices a landlord must give a tenant if the landlord wants to enter the tenant's unit. (More info about landlord entry here).
  • A new law is passed, which impacts the existing law. For example, Gov. Evers issued Executive Order #12, which says that landlords cannot enter except for emergency maintenance.
  • The new law essentially layers on top of the old law, like architectural drawings. For anything impacted by the new law (if a landlord can go into an occupied unit in order to show it to prospective tenants), the new law will tell us what to do (a landlord isn't allowed to do that for now). But, for anything that the new law doesn't touch or doesn't cover up, stays in effect (for example, the existing laws say that a landlord must give 12 hours notice before entering a unit, and that's still true). 

A Soapbox Moment:
These are unusual times. Our laws are not set up for this kind of situation. Lawmakers, judges, and service providers like us are dealing with it day-by-day. If following the laws mean that you will be unsafe, or you will risk getting/spreading COVID-19, then it is a good idea not to take that action, and instead, explain to everyone involved why that is not possible for you, preferably in writing. Hopefully, open (yet distant) communication is what will get us through this. 

Additional Resources:

  • Governor Evers' office has issued an FAQ about the Safer at Home Order. Find it here
  • The Wisconsin Economic Development Corporation has some information providing additional guidance around what it considers an Essential Service or Operation, available here
  • The National Housing Law Project has a page entitled Protecting Renter and Homeowner Rights During Our National Health Crisis, with information on eviction moratoria, foreclosure protections, and information on reasonable accommodation requests. Find it here.

* Hi! Did you know that we are not attorneys here at the TRC?  And this isn't legal advice, either.  If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.
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