Winter evictions

The owner is selling a home occupied by a tenant and the closing is set for March. The tenant has already been given notice to terminate her month-to-month tenancy. The buyer is concerned that the tenant may not be able to find another place to live. What are the tenant’s rights if the notice causes her to vacate in the winter? 

There is no state statute that prohibits evictions or the termination of tenancies during the winter months. The listing broker may review local ordinances and the rental agreement to determine if either places any limitations on the owner’s ability to terminate the tenancy.

See Wis. Stat. §704.19 regarding the giving of a 28-day notice to terminate a month-to-month tenancy. Such a notice must be given at least 28 days in advance of the end of the rent paying period. This means the last day of the month if the tenant’s rent is due on the first day of the month.

Tenant permission for showings

The seller has a home with an apartment that he rents out. The seller wants to sell the home but he doesn’t want the tenants to know it is for sale. The tenants leave town for the winter and the seller wants to be able to show the property and take people into their apartment. Is this something the listing broker can do? 

Only if the seller gives the tenants advance notice or reaches an agreement with them for this entry. Once a tenant moves into an apartment, the tenant has the right to exclusive possession and the landlord has limited rights to enter the apartment. Wis. Stat. § 704.05(2) requires landlords to give at least 12-hours of advance notice of the landlord’s entry to make repairs or show the property to prospective tenants or purchasers. Advance notice is not required if the tenant consents to a proposed entry at a specified time.

The listing broker is showing rental property and the tenants are demanding to be in the property during showings. They are very disruptive and rude. How to proceed?  

The landlord may review the terms and conditions of the lease to determine if the tenants’ behavior violates the lease terms. In general, it is best for the landlord to work with the tenants to reach a mutually agreeable solution for showings. If negotiations do not result in an acceptable compromise, the landlord may need to consult with legal counsel for advice regarding her statutory and contractual legal rights.

The WRA Residential Rental Resource Page, online at www.wra.org/Rental, may also be consulted for more information about landlord and tenant issues.

Unpaid utilities

A month-to-month tenant, with no written rental agreement, is not paying utility bills that are his responsibility. Although he has acknowledged that he needs to pay the bills, he has not done so. Does the landlord have the right to give the tenant a five-day notice to pay the utility bills or vacate? 

The terms of this tenancy are based upon the landlord and tenant’s verbal agreement and other indications of the parties’ agreement. Without a written rental agreement, there is always the risk of a disagreement and the tenant might deny that he has acknowledged responsibility for paying the utilities bills as part of his tenancy.

Wis. Stat. § 704.17(1)(b) provides that if a month-to-month tenant commits a breach other than not paying rent, the landlord may terminate the tenancy by giving the tenant at least 14 days’ notice to vacate the premises. This notice terminates the tenancy and the landlord may commence eviction proceedings in small claims court if the tenant does not move out.

§ ATCP 134.04(3) provides that the landlord must disclose to the tenant, before entering into a rental agreement or accepting any security deposit or earnest money, if the charges for water, heat or electricity are not included in the rent. If this was not done, the tenant might be able to file a complaint with the Department of Agriculture, Trade and Consumer Protection.

Non-payment of rent

The landlord has a tenant with a year lease who is behind in rent. What are the landlord’s options? 

The landlord may either request full payment of rent, negotiate with the tenant to provide a plan for payment of rent, renegotiate the lease, or initiate an eviction proceeding. Legal Update 03.07, “Residential Rental Primer,” online at www.wra.org/LU0307, discusses landlord/tenant issues and describes the proper way to begin eviction proceedings.

Automatic lease termination

The buyer has a lease but wants to buy a house before the lease expires. Is there a state law that says anyone with a lease who purchases a home can get out of the lease? 

No.

A buyer entered into a buyer agency agreement to purchase a home. The buyer just signed a new lease two days ago. Now the buyer has found a house. Is there a rescission period on leases?

Wis. Stat. § 423.201 provides for a three-day right of rescission in consumer approval transactions. However, the definition of consumer approval transactions specifically excludes transactions for both the sale and lease of real estate. The tenant may try to negotiate a lease termination, but if negotiations fail, the tenant will be obligated to the full lease term and all remaining lease payments. If the tenant simply surrenders the premises, the tenant will be liable for the balance of the lease payments, subject to the landlord’s duty to mitigate. See Wis. Stat. Chap. 704,
online at www.legis.state.wi.us/statutes/Stat0704.pdf, and the Chap. ATCP 134 administrative rules, online at
www.legis.state.wi.us/rsb/code/atcp/atcp134.pdf, for further information regarding landlord/tenant relations.

The broker is working with a buyer who is purchasing a duplex that has an extended lease. Does the lease run with the property? 

Yes, the new buyer will “step into the seller’s shoes” and must honor the current tenant’s lease. A lease is not terminated because the property is sold per Wis. Stat. § 704.09.

Authority to lease

An agent is going to take on the role of property manager for a few months while a property is listed for sale. Does this need to be registered in any way? Is the agent’s real estate license adequate for official purposes? 

It depends on whether the agent will be providing brokerage services for the landlord. If the activity undertaken by the agent includes promoting rental opportunities and the negotiation of leases and rental agreements, a real estate license and proper written authority will be required. Once the agent and landlord identify the services to be provided, a lease listing or property management agreement should be entered into with the landlord. The agent may review Legal Update 01.02 (www.wra.org/LU0102) for more information and sample copies of the WB-37 lease listing and property management agreement forms provided by the WRA.

Residential rental contract or residential lease?

Is there any substantial difference between the residential rental contract and the residential lease forms? Is there a benefit to one over the other? 

The WRA Residential Lease is a lease form that includes some rules and regulations and was modeled after the old WB-20 Apartment Lease (Department of Regulation and Licensing approval of this lease was rescinded in 1991). The Residential Rental Contract may be used for a month-to-month tenancy or for a lease. It provides for a rent discount (late fee in reverse) and has explanations of landlord/tenant law on the back. The choice between the two is one of familiarity, style and preference. Some attorneys believe that some small claims court commissioners prefer the Residential Lease form because it has come to be regarded as standard, familiar and capable of supporting uniform and efficient decisions.