Notice of Eviction! What s Next? MARIA DORSEY, PRESIDING COURT COMMISSIONER MILWAUKEE COUNTY NOVEMBER 10TH, 2016 AT 12:10 PM Online Viewers Problems streaming? Try using another browser. If slides appear small, they are also available as a handout on the website. Submit questions to the presenter by clicking on the speech bubble icon at the bottom of the screen. An attendance code will be read in two parts during the presentation. CLE credit is only available for live viewing. To be eligible for CLE credit, report both parts of the attendance code into the online attendance form immediately following the presentation. http://law.marquette.edu/mvlc/attendance-form Milwaukee County Small Claims Court Four Circuit Court Commissioners, Courthouse Room 400 The court or circuit court commissioner may conduct questioning of the witnesses and shall endeavor to ensure that the claims or defenses of all parties are fairly presented to the court or circuit court commissioner. Wis. Stats. Section 799.209(3) Two Deputy Clerks, Bailiff Small Claims Judge, Courthouse Room 409 Over 34,000 Small Claims cases in 2015 (nearly 1/3 of Milwaukee County Circuit Court s overall caseload); over 13,000 of those were evictions 1
Life-Cycle of an Eviction Case First Appearance Contested Hearing Stipulations Second and Third Causes Evidentiary Hearings Trials Motions to Reopen Applicable Statutes and Rules Wisconsin Statutes Chapter 799 (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.ht m&vid=wi:default&d=stats) Wisconsin Statutes Chapter 704 Agriculture, Trade, and Consumer Protection Code Chapter 134 (http://legis.wisconsin.gov/rsb/code/atcp/atcp134.pdf) Local Court Rules (http://www.wisbar.org/directories/courtrules/pages/circuit-court- Rules.aspx) Frequent Roadblocks to Prompt Conclusion of Cases for Landlords Statute 704.19: Effective Date of Notices Terminating Tenancy for Failure to Pay Rent or for Other Breach 704.19(7)(a): Notice is given on the day specified below, which is counted as the first day of the notice period. The court cannot issue a writ of restitution in an eviction action for failure to pay rent or other breach unless the landlord provides at least 5 days or 14 days (whichever is applicable by statute) after the date the notice is given to cure the breach or vacate the premises. The notice period must have concluded no later than the day before the eviction action is filed. (For example, if a 5-day notice is given on February 3, the tenant may pay rent or otherwise cure the breach at anytime until the end of the day on February 7; the first date on which the eviction action may be filed is February 8.) 704.19(7)(b): If the notice is posted and mailed, The day of leaving or affixing a copy or the date of mailing, whichever is later is when the 5 or 14 day counting begins. 704.19(7)(c): If the 5-day or 14-day notice is served by certified or registered mail to an address within Wisconsin, the notice is considered by the court to have been given on the second day after the day of mailing. (For example, if a landlord sends a five-day notice by certified mail on February 3, then the notice is considered by the court to have been given on February 5 and the tenant may pay rent or otherwise cure the breach at anytime until the end of the day on February 9; the first date on which the eviction action may be filed is February 10.) 2
Frequent Roadblocks to Prompt Conclusion of Cases for Landlords Counting time for notices terminating tenancy Content of notices terminating tenancy: Notices terminating tenancy for nonpayment of rent more likely to be proper if they do not include other money owed, such as utilities or late fees. Premature notices/lawsuits Notices terminating for nonpayment of rent issued on the first of the month. Five- or fourteen-day notices stating deadline fewer than five or fourteen days in the future. Lawsuits filed before expiration of notice terminating tenancy. Failure to properly serve notices (See Wis. Stats. Section 704.21) Personal service means personal service. Posting and mailing only permitted after reasonable diligence to personally serve tenant, family member, or other responsible person. Service by certified mail is least likely to raise factual dispute. Identity of the landlord/building owner Representation of LLC s New rule for cases filed on or after March 1, 2014: (Act 76) Part time employees and agents can appear on behalf of any party. (Agent needs an authorization to act signed by property owner or registered agent of the LLC.) Proof of damages Modifications of stipulations Common Defenses for Tenants Disputed amount of rent owed: This can either be an issue for second and third causes, or may be a defense to the eviction if the notice is inaccurate. Retaliatory Eviction, 704.45, Stats. A landlord cannot evict a tenant SOLELY because the tenant has reported building code violations. Dickhut v. Norton, 45 Wis. 2d 389, 173 N.W. 2d 297 (1970). Untenantability, 704.07(4), Stats. Circumstances under which tenant can move without notice; conditions materially affecting the health and safety of the tenant, which landlord does not promptly rectify -If the tenant remains, rent abates to the extent that the tenant is deprived of the full normal use of the premises. Tenant may not abate 100% of the rent if the tenant remains in the unit. 704.07(4) Stats. Common Defenses for Tenants (Continued) The City of Milwaukee has two programs: 1. Rent Withholding Program: This allows a tenant to pay the rent to the City if there are uncorrected building code violations. The City retains the rent until the violations are corrected. 2. Rent Abatement Program: The City Building Inspector will authorize a particular amount to b e withheld from the rent, after an inspection. This program is run in conjunction with Community Advocates. 3
Emergency Assistance, section 799.40(4) Stats. Eligibility for EA under sec. 49.138 A person is eligible for EA if they are in danger of becoming homeless and have not received EA within the last 12 months. When a tenant applies for EA, the court must stay the eviction until the tenant s eligibility is determined and if approved, until the tenant receives the assistance. 799.40(4). Emergency Assistance, section 799.40(4) Stats. Landlord Responses to EA A landlord is not required to accept EA. If the landlord accepts EA, the eviction action must be dismissed. If the landlord does not accept EA, the landlord should advise the EA agency so that the EA can be made available to help the tenant establish a new tenancy. The tenant must make a good faith effort to find a new place. The court can continue the stay of the eviction for a reasonable period of time. McQuestion v. Crawford, 2009 WI App 35, 316 Wis. 2d 494, 765 N.W. 2d 822 (Ct. App. 2009). SOURCES OF INFORMATION AND LEGAL ADVICE Milwaukee Bar Association s Lawyer Referral & Information Service (www.findmilwaukeelawyers.com) Marquette Volunteer Legal Clinics (http://law.marquette.edu/mvlc) Milwaukee Justice Center Website (http://milwaukee.gov/mjc) Wisconsin Way (http://datcp.wi.gov/uploads/consumer/pdf/wisconsinway WEB.pdf) 4
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