Landlord/tenant concerns

Winter evictions

What are the stipulations, if any, for evictions of renters in the winter months?

In Wisconsin there is no statutory or administrative code provision preventing a landlord from evicting a tenant in the winter months. The parties may review local ordinances and the rental agreement to determine if either places any limitations on the owner’s ability to terminate the tenancy. 

Landlord-supplied heat

The lease provides that heat is included in the rent and refers to the heating season as October to April. The tenant demands that the heat remain on in May when the outdoor temperature is 63 degrees. Is the landlord obligated to turn the heat on in May? Or can the landlord follow a specific set of calendar dates to define the heating season when a landlord provides heat for a residential rental? 

According to the Wisconsin Department of Agriculture Trade and Consumer Protection, Admin. Code § ATCP 134.04 states that a minimum inside temperature of 67 degrees is required in all living areas and dwelling units during all seasons of the year. There are no dates specified in the rules. While the outside temperature will obviously have an effect on the inside temperature, the rule only applies to the internal temperature. Regardless of the weather or time of year, the heating system in the unit must be able to maintain a temperature of 67 degrees Fahrenheit per Wis. Admin. Code § ATCP 134.04(2)(b). This rule appears at docs.legis.wisconsin.gov/code/admin_code/atcp/090/134.

Buyer and seller issues

Snow removal

The broker received an email from the seller. The seller said he is out of town and is unable to clear the snow and ice from walkways and the driveway. The seller further mentioned that any showings that will be done will be at the buyers’ own risk. Does the responsibility to keep sidewalks and driveway clear in this situation fall on the seller?

Lines 174-182 of the Residential Listing Contract (WB-1) gives the seller the responsibility of keeping the property safely accessible to the broker, other brokers and potential buyers. If the seller is not available to keep the walkways and driveway clear of snow and ice, the seller can make arrangements for a service. If the broker offers to engage a third party for this service, the broker should obtain documentation stating that the seller accepts responsibility to pay for the service.

When contacting a service provider, the broker may use the sample service request form to assure the service provider will seek compensation from the seller and not the broker. In addition, the listing agent may choose to address more details about this agreement in an amendment to the listing contract. The amendment language could include the following stipulations: 

• Name and information of the service provider.
• The seller directs the broker to engage the service provider.
• The seller agrees to compensate the provider.
• The seller agrees to reimburse the listing agent for any out-of-pocket costs incurred by the agent if issues arise. 

More information is available in the May 2004 Legal Update, “Avoiding Liability When Signing and Making Referrals,” at www.wra.org/LU0405.

After the acceptance of the offer and before closing, what is the seller's responsibility regarding snow removal from the sidewalks or driveway? Only half of the driveway has been cleared. What about snow that falls hours prior to closing?

The Residential Offer (WB-11), at line 59, states that at the time of closing, the property shall be in broom-swept condition and free of all debris. Additionally, lines 206-215 give a seller the obligation to “maintain” the property in materially the same condition as of the date of the offer. Whether or not these provisions can be applied to snow removal might be questionable. For sidewalks that are subject to regulation by municipal ordinance, the seller may be responsible to timely remove snow and ice. Having the driveway clear of snow at the time of closing may be less clear. If the buildup of snow and ice is so great as to be beyond normal wear and tear, the buyer may argue the seller is required to restore the property by having the snow and ice removed. As with any pre-closing disagreement, the parties may negotiate a mutually agreeable solution or may consult with legal counsel. 

Winterize and dewinterize

A buyer hired a home inspector for the inspection of a winterized property. Which party is responsible for dewinterizing the home for a home inspection and water test?

Unfortunately, the standard home inspection contingency in the Residential Offer to Purchase (WB-11) does not address the obligation to winterize and/or dewinterize the property or refer to winterized properties. Before writing the offer, the buyers may discuss the winterization with the home inspector to find out exactly what the home inspector will need. The buyer can then draft the offer to specifically address: 

• Which party will turn on the power and the water and which party will pay for those services.
• When the dewinterization will be done.
• Who will rewinterize the property and pay the associated costs.
• Who will be responsible for any damage that occurs during the period when the power and water are on. 

It will benefit all parties to address this issue up front in the offer to purchase to avoid argument and confusion. If the parties cannot resolve this issue, they may need to enlist the services of legal counsel.

See the “Best of the Legal Hotline: The Accidental Property Manager, Take 2” in the January 2011 Wisconsin Real Estate Magazine at www.wra.org/WREM/Jan11/AccidentialPropertyManagerTake2.

Wood-burning stove

The buyer viewed a home with a wood-burning furnace hooked up and being used as a heat source in the home — it is not the only heat source, but a usable heat source nonetheless. After acceptance of the offer, the wood burner was removed, and the listing agent informed the buyer’s agent that the wood furnace is not and never was included in the offer. Does the buyer have any grounds to contest this claim? The buyer believes the wood-burning furnace was a fixture and was meant to be part of the home. 

As a general rule, a fixture is an item of property that, under certain circumstances, may be treated legally as personal property but has become so attached to land or buildings or is used in such close association with the land or buildings that it is treated as a part of the land. The courts have attempted to lay down certain tests to determine when an article takes on the character of a fixture:

• Is the article physically attached? Is it easily removable without damage to the premises? If the article cannot be removed without serious damage either to the item or premises, it is practically conclusive that it is a fixture. 
• Is there a special adaptation between the article and the premises? 
• What is the intent of the person attaching the article to the premises? Are there general community “customs?”

None of these tests are conclusive on their own nor do they operate mechanically. When in doubt, the parties should clearly agree in advance on the nature of such items. If it is a fixture, the seller must expressly reserve the right to remove the item. When drafting an offer, the buyer may identify any questionable item in the inclusion section of the offer. This would assure the wood-burner remains, or the seller would counter it out and there would be no dispute. 

The residential offer (WB-11) includes central heating and cooling units and attached equipment as defined fixtures. Whether the wood-burning furnace would be included in the sale would require an analysis of fixtures.

See the November 2003 Legal Update, “Overcoming Residential Transaction Obstacles,” online at www.wra.org/LU0311. 

Ice dams

The home inspector found a handful of items that were of concern during a recent inspection. The biggest concern is evidence of ice damming on the roof. The buyer contacted three different contractors about correcting the ice damning problem and received three different answers about the “best” method to correct the issue. 

The buyer tried negotiations with an amendment to have the seller cure the roof defect with the company of the buyer’s choice. The seller rejected the bid as “too high.” Now the buyer plans to submit a notice of defects regarding the roof and other items that were found during the inspection because the seller has the right to cure. Does the buyer proceed with a notice of defects, and can the buyer tell how the roof should be repaired?

The notice of defects is a unilateral statement whereby the buyer gives the seller notice of the defects, as defined in the offer to purchase, to which the buyer objects. The notice cannot be used to dictate how the seller cures the defects, if the seller does elect to cure. Any time the buyer wishes to have defects cured or repaired per a standard other than a “good and workmanlike manner,” that standard would have to be stated in the offer or in an amendment — both parties must agree to the standards and any specific details with regard to the repair/cure of the defects identified by the buyer’s notice of defects.

According to the standard home inspection contingency, if the seller elects to cure, the standard is in a good and workmanlike manner. If there is concern the seller will use the cheapest, and not necessarily the best, method to repair the roof and prevent damage in the future, the seller should be referred to these lines and the parties may be referred to roofing specialists and private legal counsel, as may be needed, to make that determination.

To read more about home inspection issues, see the August 2004 Legal Update, “Effective Home Inspections,” at www.wra.org/LU0408 and the October 1999 Legal Update, “Home Inspections,” at www.wra.org/LU9910.
A real estate brokerage served as the selling office of heating oil, and the listing agent forgot to charge the buyer for the oil that was in the tank. One month later, the listing agent requested the money from the buyer. Once the closing statement was signed by both parties at closing, does the buyer have any obligation to pay for this?

If the closing statement did not reflect the contractual agreement, the buyer should not have signed the document. However, with the assistance of an attorney, the buyer may attempt to argue that although the closing statement was signed, it did not reflect the agreement of the parties and the seller did not honor the agreement regarding proration in the offer to purchase, which states, “the following items, if applicable, shall be prorated at closing, based upon date of closing values: real estate taxes, rents, prepaid insurance (if assumed), private and municipal charges, property owners association assessments, fuel and _________________________. CAUTION: Provide basis for utility charges, fuel or other prorations if date of closing value will not be used.” 

The buyer should work with the lender if they need prorations earlier to comply with TRID closing disclosure rules and timelines.

For more information on preparing for successful closings, see the “Best of the Legal Hotline: Closing Notes” in the May 2011 Wisconsin Real Estate Magazine at www.wra.org/WREM/May11/LegalHotline and the November 2009 Legal Update, “WB-11 Residential Offer to Purchase — 2010 Edition” at www.wra.org/LU0911.

Tracy Rucka is Director of Professional Standards and Practices for the WRA.