THE FINE PRINT — Avoiding the most expensive legal pitfalls in landlord-tenant law

January 31, 2014

janpierceWhether you are a landlord or a tenant, or know someone who is, you’ve heard some legal horror stories of residential rental-relationships gone bad. To that end, this column will be devoted to highlighting some of the most expensive missteps that landlords make. Tenants, on the other hand, will benefit from understanding where they have more protection and leverage.

The area that gets most landlords in trouble, especially inexperienced ones, is Chapter ATCP 134 of the Wisconsin Administrative Code. This section of law provides for landlords being assessed double damages and attorney’s fees for a very specific list of violations. This means that violations are always expensive, and get more expensive very quickly, if the landlord doesn’t get out a checkbook out right away.

Security Deposits 

One of the most common mistakes landlords make is not returning a tenant’s security deposit within 21 days after the tenant moves out of a premises. If a landlord fails to do this, he or she is liable for twice the amount of the security deposit, plus the attorney’s fees incurred by the tenant to recover the security deposit.

And when all or part of a security deposit is properly withheld, a detailed accounting of all amounts withheld must be delivered within this same 21-day time period.

A landlord is allowed to withhold amounts from a security deposit for tenant damage, waste, or neglect, for unpaid rent, utility, and other fees that are not included in rent, which the landlord becomes liable for. The landlord cannot, however, make deductions from the security deposit for normal wear and tear.

While the landlord may still be able to recover for properly withheld amounts, those amounts will be netted against the double damages and attorney’s fees recovered by the tenant for failure to return the security deposit within 21 days.

A landlord must return the security deposit, and the accounting related to any withholding from the security deposit, to the tenant’s last known address. This means that if the landlord does not have a forwarding address for the tenant, the deposit must be sent to the address of the recently surrendered premises, always using certified mailings, with a return receipt requested, for all mailings.

Prohibited Lease Provisions and Rental Practices

A landlord is liable for double damages and attorney’s fees for certain prohibited lease provisions and rental practices.

It is unlawful for landlords to include provisions in leases that purport to allow them to act in a way that is prohibited by law. Further, they cannot include a provision that requires the tenant to pay attorney’s fees or costs incurred by the landlord in any legal dispute related to the agreement.

Finally, landlords are prohibited from practices such as the advertisement or rental of condemned premises, unauthorized entry of a tenant’s premises, automatic lease renewal without notice, confiscation of a tenant’s personal property, or retaliatory eviction.

The Wisconsin Department of Agriculture Trade and Consumer Protection has a handy fact sheet on tenant’s rights and responsibilities that is available here: goo.gl/o4LNzr.

Jan Pierce, S.C. is a law firm In Milwaukee that was founded with the belief that people can make a positive difference in the world and make a profit. The firm’s emphasis is on assisting small businesses and social entrepreneurs in all aspects of launching and managing their ventures. Disclaimer: Advice in this column is general legal information and does not constitute, nor is it intended to be, legal advice. Send your question to jan@janpiercelaw.com. To protect your privacy, your name will not be published.

 

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