What Landlords Should Know About the Wisconsin Consumer Act

What Landlords Should Know About the Wisconsin Consumer Act

by | Jan 6, 2025 | 2025, Article, Real Estate

Residential landlords in Wisconsin now face liability under the Wisconsin Consumer Act (WCA) following the Wisconsin Court of Appeals’ decision in Koble Invs. v. Marquardt, 412 Wis. 2d 1, 7 N.W.3d 915 (Ct. App. 2024).

The WCA aims to:

  • simplify, clarify and modernize the law governing consumer transactions
  • protect customers against unfair, deceptive, false, misleading and unconscionable practices by merchants.

In the Koble case, the Court found that the landlord violated the WCA by serving a five day eviction notice during the COVID-19 moratorium. Specifically, the landlord attempted to “enforce a right with knowledge or reason to know that the right does not exist” in violation of Wis. Stat. § 427.104. Penalties for WCA violations can be severe, including the payment of attorney’s fees.

Additionally, the Koble Investments decision found the landlord violated Wis. Stat. § 704.44, which voids rental agreements that contain certain lease provisions.

Including any of the following provisions in a residential lease will make the lease void and unenforceable:

(1) Allows a landlord to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services:

(a) Increase rent.

(b) Decrease services.

(c) Bring an action for possession of the premises.

(d) Refuse to renew a rental agreement.

(2) Authorizes the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under chapter 799.

(3) Provides for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise waives the landlord’s obligation to mitigate damages as provided in Wis. Stat. §. 704.29.

(4) Requires payment by the tenant of attorney fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This subsection does not prevent a landlord or tenant from recovering costs or attorney fees under a court order under chapter 799 or 814.

(5) Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

(6) States that the landlord is not liable for property damage or personal injury caused by negligent acts or omissions of the landlord. This subsection does not affect ordinary maintenance obligations of a tenant under Wis. Stat. §. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

(7) Imposes liability on a tenant for any of the following:

(a) Personal injury arising from causes clearly beyond the tenant’s control.

(b) Property damage caused by natural disasters or by persons other than the tenant or the tenant’s guests or invitees. This paragraph does not affect ordinary maintenance obligations of a tenant or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

(8) Waives any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition or to maintain the premises during the tenant’s tenancy.

(9) Allows the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property if the tenant, or someone who lawfully resides with the tenant, is the victim, as defined in Wis. Stat. §. 950.02 (4), of that crime.

(10) Allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the notice required under Wis. Stat. §. 704.14.

The landlord in the Koble case violated § 704.44(10) because the rental agreement allowed the landlord to terminate the lease for a crime committed in relation to the rental property without providing the proper notice.

NOTICE OF DOMESTIC ABUSE PROTECTIONS

(1) As provided in section 106.50 (5m) (dm) of the Wisconsin statutes, a tenant has a defense to an eviction action if the tenant can prove that the landlord knew, or should have known, the tenant is a victim of domestic abuse, sexual assault, or stalking and that the eviction action is based on conduct related to domestic abuse, sexual assault, or stalking committed by either of the following:

(a) A person who was not the tenant’s invited guest.

(b) A person who was the tenant’s invited guest, but the tenant has done either of the following:

  1. Sought an injunction barring the person from the premises.
  2. Provided a written statement to the landlord stating that the person will no longer be an invited guest of the tenant and the tenant has not subsequently invited the person to be the tenant’s guest.

(2) A tenant who is a victim of domestic abuse, sexual assault, or stalking may have the right to terminate the rental agreement in certain limited situations, as provided in section 704.16 of the Wisconsin statutes. If the tenant has safety concerns, the tenant should contact a local victim service provider or law enforcement agency.

(3) A tenant is advised that this notice is only a summary of the tenant’s rights and the specific language of the statutes governs in all instances.

The Court ordered Koble Investments to repay the tenant for all payments that were made under the unenforceable lease as a result of Koble’s violation.

KEY TAKEAWAYS

  • Landlords must not attempt to enforce a right against tenant when they know or should know the right does not exist.
  • Residential leases must comply with Wis. Stat. § 704.44.

Landlords should regularly review their residential leases to ensure compliance with Wisconsin statutes. If you are a landlord and you have any questions, the team of knowledgeable attorneys at Anderson O’Brien, LLP would be happy to assist you in ensuring your leases comply with Wisconsin law.

If a Trespasser is Injured on My Property, Am I Responsible?

If a Trespasser is Injured on My Property, Am I Responsible?

by | Oct 7, 2024 | 2024, Article, Personal Injury

attractive nuisance, no trespassing

As a landowner, you might wonder whether you need to be concerned about injuries that occur when someone trespasses on your property. Generally, trespassers enter your land at their own risk. Both common sense and the law acknowledge that you have “no duty to anticipate a trespasser’s entry or to provide for a trespasser’s safety.” Your only duty is to “refrain from acts which willfully, wantonly, or recklessly cause injury or death to trespassers.” To be clear, posting a sign warning that “trespassers will be shot” does not make it legal to harm someone.

However, there is an important exception known as the “attractive nuisance” doctrine. Despite the flashy name, attractive nuisance is better understood as “liability for artificial conditions that are highly dangerous to the safety of trespassing children.” Under this doctrine, a landowner may be liable to an injured trespassing child if:

  1. The possessor of real property maintained, or allowed to exist, an artificial condition on the property that was inherently dangerous to children.
  2. The possessor of real property knew or should have known that children trespassed on the property.
  3. The possessor of real property knew or should have known that the artificial condition he or she maintained or allowed to exist was inherently dangerous to children and involved an unreasonable risk of serious bodily harm or death to children.
  4. The injured or killed child, because of their youth or tender age, did not discover the condition or realize the risk involved in entering onto the property or in playing in close proximity to the inherently dangerous artificial condition.
  5. The possessor of real property could have reasonably provided safeguards that would have removed the inherent danger without interfering with the purpose for which the artificial condition was maintained or allowed to exist.

Examples of attractive nuisance include an “insufficiently guarded swimming pool,” poorly guarded or defective trampolines, and a dangerous accumulation of junked cars. While not exhaustive, this list provides examples of artificial conditions that, if not properly safeguarded, could lead to liability.

As a property owner, it is crucial to implement protective measures such as installing locks or fences to prevent children from accessing dangerous conditions. If you have questions or concerns about your property or need advice on how to manage potential liabilities, please contact one of our experienced attorneys. They will be happy to assist you in ensuring your property is safe and legally compliant.

 

 

 

 

Are They Really Faster and Cleaner?

Are They Really Faster and Cleaner?

by | Apr 22, 2024 | 2024, Article, General

Faster and cleaner, Daniel Schmeeckle, Lawyers Where You Live, article

In October 2020, the Department of Energy (DOE) adopted a rule defining a new dishwasher class as “standard residential dishwashers with a cycle time for the normal cycle of one or less from washing through drying.”[1] Not long after passing the 2020 Dishwasher Rule, the DOE created an analogous rule creating new classes of “top-loading clothes washers and consumer clothes dryers” having a “normal cycle time of less than 30 minutes.”[2] Then, in January 2022, the DOE repealed the 2020 Dishwasher Rule and 2020 Laundry Rule (the “Repeal”). Consumer Reports took note:

“Not so long ago you could count on most washers to get your clothes very clean. Not anymore. Our latest tests found huge performance differences among machines. Some left our stain-soaked swatches nearly as dirty as they were before washing. For best results, you’ll have to spend $900 or more.” (Italics added).

 

“What happened? As of January, the U.S. Department of Energy has required washers to use 21 percent less energy, a goal we wholeheartedly support. But our tests have found that traditional top-loaders, those with the familiar center-post agitators, are having a tough time wringing out those savings without sacrificing cleaning ability, the main reason you buy a washer.”

 

A group of states, led by Louisiana (state motto: “Union, Justice and Clean Laundry”) sued to overturn the repeal and to return to the halcyon days when clean laundry was king. Don Henley, who made a living on the evening news, summed up the sentiment of the suing states:

                      You don’t really need to find out what’s goin’ on
                      You don’t really wanna know just how far it’s gone
                      Just leave well enough alone
                      Eat your dirty laundry

The DOE and the states aired their dirty laundry in front of the United States Court of Appeals for the Fifth Circuit. In favor of speed cleaning, the Fifth Circuit noted:

Appliances including dishwashers, clothes washers, and clothes dryers with faster normal-cycle completion times that also maintain cleaning and drying effectiveness, such as dishwashers that complete a normal cycle in one hour or less, are desirable in the bunkhouse setting. Such features are beneficial and productivity enhancing, since they would permit faster washing and completion of additional cycles during the workday.[3]

The States argued that the DOE’s repeal actually had the opposite effect of what was intended – higher efficiency: “They make Americans use more energy and more water for the simple reason that purportedly ‘energy efficient’ appliances do not work” requiring the use of more energy and water to “preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.”[4] The evidence presented to the Fifth Circuit showed that “dishwasher cycle time has increased from around one hour at the advent of DOE’s conservation program to around two and a half hours in 2020.”[5]

In a 25-page opinion, the Fifth Circuit ultimately found that DOE’s Repeal was “arbitrary” and “capricious” and sent the matter back to the DOE for further proceedings. To come to this opinion they looked at the connection between the facts found and the decision made. They argue that the DOE does not have the authority to regulate water usage and that the DOE did not consider the negative consequences of re-washing, pre-washing, and hand-washing clothing. In trying to conserve water and make machines more efficient, these new rules have had the opposite effect.

The next time you are considering purchasing a dishwasher or clothing washer, be sure to look at the overall functionality of the machine. Do not be swayed by the “more efficient” fast cycle terms.

[1] See Establishment of a New Product Class for Residential Dishwashers, 85 Fed. Reg. 68723 (Oct. 30, 2020) (the “2020 Dishwasher Rule”).

[2] See Establishment of a New Product Class for Residential Clothes Washers and Consumer Clothes Dryers, 85 Fed. Reg. 81359 (Dec. 16, 2020) (the “2020 Laundry Rule.”) .

[3] Louisiana v. United States DOE, No. 22-60146, 2024 U.S. App. LEXIS 507, p. 7-8 (5th Cir. Jan. 8, 2024)

[4] Id. p. 14.

[5] Id. p. 15.

Waste in Real Estate

Waste in Real Estate

by | Jan 8, 2024 | 2024, Article, Real Estate

The word waste provides rich imagery for a fertile imagination. Waste is associated with many unsavory expressions: “wasted, waste product, waste away, and go to waste.” From a legal standpoint, however, “waste” is a narrowly defined concept in property law. It means the “unreasonable conduct by the owner of a possessory estate that results in physical damage to the real estate and substantial diminution in the value of the estates in which others have an interest.” https://casetext.com/case/pleasure-time-inc-v-kuss More simply, waste is the destruction of houses or lands by a tenant or holder of a life estate.Committing waste has significant legal consequences. Wisconsin law provides that, if an interference with land constitutes waste, “the court shall give judgment for double the damages found.” Wis. Stat. § 844.19(2). In practice, this statute is rarely used despite being a powerful tool for landowners to recover for damage to their properties. Some examples from case law illustrate the law’s application:

  1. A tenant for life who neglects to pay taxes that accrue after his tenancy commences is liable to an action for waste.
  2. Damage to carpeting and subflooring by a tenant in a residential lease.

In one notable case, Melms v. Pabst Brewing Co., the Wisconsin Supreme delineated the law of waste in a lawsuit concerning a mansion that was demolished. Captain Frederick Pabst (of Pabst Blue Ribbon fame) demolished the Melms’ mansion. Pabst wrongly thought he owned the mansion, but instead had only a life estate. (An estate held only for the duration of specified person’s life, usu. the possessor’s) He was sued for committing waste in tearing down the mansion. The Melms side argued Pabst should compensate them with an amount sufficient to cover the costs of rebuilding the mansion. Pabst argued he had done the Melms side a favor by demolishing the mansion as it detracted from the value of the land. Pabst argued that the mansion had no value because it was surrounded by industry and the best use of the land was for manufacturing. Ultimately, the Wisconsin Supreme Court held that Pabst did not commit waste. The Court poetically explained that:

The evidence shows that the property became valueless for the purpose of residence property as the result of the growth and development of a great city. Business and manufacturing interests advanced and surrounded the once elegant mansion, until it stood isolated and alone, standing upon just enough ground to support it, and surrounded by factories and railway tracks, absolutely undesirable as a residence and incapable of any use as business property. Here was a complete change of conditions, not produced by the tenant, but resulting from causes which none could control. Can it be reasonably or logically said that this entire change of condition is to be completely ignored, and the ironclad rule applied that the tenant can make no change in the uses of the property because he will destroy its identity?

After the Melms’ decision, the courts now assess whether the change to the property was economically advantageous. Although the law of waste is archaic in origin, it is still relevant today. Property owners whose interests are harmed by tenants should consider bringing a claim for waste if their property is substantially damaged by the unreasonable conduct of a tenant.

If you ever find yourself in a situation like this please contact our experienced attorneys, they have the expertise and drive to help you with your case.

U.S. Supreme Court Votes Unanimously On Tax Lien Case

U.S. Supreme Court Votes Unanimously On Tax Lien Case

by | Jul 12, 2023 | Article, General

There are many cases decided by the U.S. Supreme Court that receive scant attention from the public. Despite ideological divisions among the justices, it is not uncommon for the Court to vote 9-0 in case. In the case of Tyler v. Hennepin County, Minnesota, the Court issued a unanimous decision concerning the constitutionality of a tax lien foreclosure.

Geraldine Tyler owed $15,000 in unpaid real estate taxes on a condominium she owned in Hennepin County, Minnesota. The County seized the condomin and sold it for $40,000, keeping the $25,000 excess over what Tyler owed in unpaid taxes. Tyler argued the windfall to the County was unconstitutional in violation of the Takings Clause of the Fifth Amendment. The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.” U. S. Const., Amdt. 5. The question the Court concerned itself with was whether the surplus funds from the sale of the condominium are protected from uncompensated appropriation by the County. The Court’s analysis provided a history lesson in our English common law roots:

Parliament gave the Crown the power to seize and sell a taxpayer’s property to recover a tax debt, but dictated that any “Overplus” from the sale “be immediately restored to the Owner.” 4 W. & M., ch. 1, §12, in 3 Eng. Stat. at Large 488–489 (1692). As Blackstone explained, the common law demanded the same: If a tax collector seized a taxpayer’s property, he was “bound by an implied contract in law to restore [the property] on payment of the debt, duty, and expenses, before the time of sale; or, when sold, to render back the overplus.” 2 Commentaries on the Laws of England 453 (1771).

Ultimately, the Court held that “Tyler has plausibly alleged a taking under the Fifth Amendment,” reasoning that a “taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc [treasury] than she owed.” Wisconsin’s law on foreclosure of tax liens, Wis. Stat. § 75.521, is similar to the law that was challenged in Tyler. While the Wisconsin law is still on the books, a challenge to its constitutionality seems inevitable.

If you have any questions about tax liens or foreclosures, please discuss it with one of our experienced real estate or tax attorneys.