Is there a requirement for all landlords to provide a check-in sheet?
Wis. Stat. § 704.08 states: “Information check-in sheet. A landlord shall provide to a new residential tenant when the tenant commences his or her occupancy of the premises a standardized information check-in sheet that contains an itemized description of the condition of the premises at the time of check-in. The tenant shall be given 7 days from the date the tenant commences his or her occupancy to complete the check-in sheet and return it to the landlord. The landlord is not required to provide the information check-in sheet to a tenant upon renewal of a rental agreement. This section does not apply to the rental of a plot of ground on which a manufactured home, as defined in s. 704.05 (5) (b) 1. a., or a mobile home, as defined in s. 704.05 (5) (b) 1. b., may be located.”
Wis. Stat. § 704.08 now indicates that the check-in sheet is to include an itemized description of the condition of the premises. Providing a blank check-in form or not providing any property description information because a previous tenant did not complete a proper checkout would not appear to be acceptable. The WRA is currently creating an Information Check-in Sheet. Until the new forms are available, a landlord may attach an addendum to the current forms to include the “itemized description of the condition of the premises.” Please watch WRA publications and updates for zipForm for the new form as it becomes available. More information about the recent Wis. Stat. 704 changes is available in the May 2012 Wisconsin Real Estate Magazine article, “Landlord/Tenant Law: New Check-In Sheets & Property Disposal Procedure” at www.wra.org/WREM/May12/LandlordTenant.
Return of security deposit 21 days
The tenant vacated the property midway through the year lease. The landlord is trying to re-rent the unit based on the statutory mitigation requirements but has yet to find a tenant. When will the 21-day trigger to return the security deposit occur?
Many provisions formerly found in the Wis. Admin. Code ch. ATCP 134 now also appear as part of Wis. Stat. Ch. 704 in a slightly modified matter. The return of security deposits is now addressed in Chapter 704.28(4). The timing for the return of the security deposit, less authorized withholding, may vary based on four different triggering events:
- If tenant vacates on the termination date, the termination date.
- If the tenant vacates before the termination date, the date on which a new tenant’s tenancy begins if the premises are re-rented or the termination date of the rental agreement.
- If the tenant holds over and does not vacate on the termination date, the date on which the landlord learns that the tenant vacated the premises.
- If there is an eviction, the earlier of the date on which the writ of restitution is executed or when the landlord learns the tenant has vacated.
Security deposit withholding
If a tenant does not leave the apartment clean, can you deduct the cleaning expenses from the security deposit for kitchen, baths and appliances?
The return of security deposits is regulated by Wis. Admin. Code § ATCP 134.06, and the new Wis. Stat. § 704.28. Wis. Stat. § 704.28(3) states: “NORMAL WEAR AND TEAR. This section does not authorize a landlord to withhold any amount from a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.” A detailed statement of claims must be given with a return of any security deposit balance owed within 21 days after the tenant vacates the premises as defined in the statute.
The landlord may wish to prepare the withholding statement in anticipation of small claims action, in case the tenant challenges the withholding. The landlord can gather photographs and/or video of the unit both before the tenant occupied and after the tenant vacated as well as any check-in and check-out forms that identify the change(s) in condition. In court, the landlord would have the burden to prove that the landlord is entitled to damages by proving the condition of the premises at the commencement and termination of the term, the extent of damage to the premises, and the cost of restoring the premises. Rivera v. Eisenberg, 95 Wis. 2d 384, 387-88, 290 N.W.2d 539 (Ct. App. 1980). This documentation will help the landlord prove that any withholding was for damage to the apartment, appliances and/or carpets and was for conditions beyond normal wear and tear. In other words, the landlord would establish that the apartment required cleaning because of conditions that showed “much more than normal wear and tear.”
Tenants occupy the property for sale
The buyer is purchasing a duplex and wants to move in to one of the units. The offer has been negotiated and the seller is saying that the tenants won’t move out. Does the lease run with the property or with the owner? What is the buyer’s recourse?
The sale of a property does not terminate a lease. When a buyer writes an offer on a currently rented property, the buyer purchases the property subject to the lease terms. Wis. Stat. § 704.09 requires that a buyer or other transferee take ownership of the property subject to the tenant’s rights. The new owner will “step into the seller’s shoes” and must honor the current tenant’s lease. Moreover, according to lines 140-143 of the 2011 WB-11 Residential Offer to Purchase, the seller shall assign the seller’s rights under the existing leases and transfer all security deposits and prepaid rents to the buyer at the time of closing. The buyer takes title to the property subject to the rights of the tenants. Therefore, the terms of the leases should be stated when the offer is negotiated. Neither the buyer nor seller can unilaterally terminate the leases. Either may, however, attempt to negotiate with the tenants to change their lease terms or agree to terminate the lease early.
Multiple tenants and rent
What can the landlord do when one of the three tenants is not paying rent?
The lease may indicate if there is joint and several liability with regard to the tenants’ responsibility for the rent. Joint and several liability essentially means that each individual tenant is legally responsible for the full amount of the rent regardless of whether one tenant does not pay a portion of the rent while the others pay their respective shares. The landlord may give notice to all tenants that the rent has not been paid in full and can attempt to collect from all tenants, even those who have paid “their share” of the rent.
Lease term
Can a written residential lease include an automatic renewal at the end of the lease term?
A lease terminates upon the expiration date unless the landlord and tenant agree to extend the lease or if there is an automatic renewal clause and the landlord gives proper notice. Wis. Stat. § 704.15 sets forth the landlord’s requirements to notify the tenant of an automatic renewal. The automatic renewal is not enforceable unless the landlord gives written notice calling the attention of the tenant to the upcoming renewal or extension. If there is a renewal clause and the landlord fails to give the required notice, the lease ends at the end of the lease term. In such a case, the landlord and tenant could agree to amend the lease to extend for a new term or agree to a month-to-month tenancy.
Landlord/tenant resources
Below are other WRA publications containing information about property management and landlord/tenant law:
Other resources:
Tracy Rucka is Director of Professional Standards and Practices for the WRA.