AB1038: Bill Text

LRB-4442/3

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1995 - 1996 LEGISLATURE

1995 Assembly BILL 1038

March 18, 1996 - Introduced by Representatives Grothman, Albers, Duff, Goetsch, Ladwig, F. Lasee, Lazich, Olsen, Schneiders, Vrakas, Walker, Ward, Wasserman, Ziegelbauer and Zukowski, cosponsored by Senators Rosenzweig and Petak. Referred to Committee on Housing.

AB1038,1,7 An Act to renumber chapter 704; to amend 100.20 (5), 100.20 (6), 100.26 (3), 100.26 (6), 704.05 (5) (a) (intro.), 757.69 (1) (d), 799.05 (3) (b), 799.206 (3), 799.44 (4), 799.45 (1), 799.45 (2) (b), 799.45 (2) (c), 799.45 (3) (a) and 799.45 (3) (b); to repeal and recreate 100.26 (6); and to create subchapter I (title) of chapter 704 [precedes 704.01], subchapter II of chapter 704 [precedes 704.91], 799.45 (2) (bg) and 799.45 (3) (am) of the statutes; relating to: residential rental practices, powers of court commissioners and providing a penalty.

Analysis by the Legislative Reference Bureau

Current law addresses some issues related to the rental of residential property, such as certain lease requirements and how to terminate a tenancy. The Wisconsin administrative code provides regulations related to other rental practices. This bill establishes those residential rental practices regulations in the statutes. With some specified exceptions, the provisions in the bill apply to the rental of all dwelling units in the state.

The bill requires a landlord, before accepting any earnest money or security deposit, to disclose to a prospective tenant any uncorrected building or housing code violations and any other conditions that affect the habitability of the premises. A landlord must also disclose whether charges for utilities are included in the rent and, if not, the basis for allocating the charges among the tenants. The bill requires a landlord to provide a tenant with a receipt for any earnest money or security deposit received from a tenant and prohibits a landlord from retaining any amount of an earnest money deposit if the landlord rejects the rental application, except for actual expenses, up to $25, incurred to verify the application if the rejection was based on omissions or false statements in the application.

If a landlord requires a security deposit, a tenant must be given at least 7 days after the beginning of the tenancy to inspect the premises and notify the landlord of any damages or defects existing at the beginning of the tenancy. In addition, a tenant may in writing request the landlord to furnish a written itemized description of all damages or defects for which deductions were made from the previous tenant's security deposit. The landlord must return a security deposit within 21 days after the last day for which a tenant is legally liable for rent. If, however, a tenant vacates the premises before the end of the lease term, the landlord must return the security deposit within 21 days after the tenant vacates the premises, the landlord receives written notice from the tenant of his or her intention to vacate before the end of the lease term or the landlord receives all rents and other charges for which the tenant is legally liable under the lease, whichever is latest. If the landlord retains any portion of the security deposit, the landlord must provide a written accounting to the tenant within that same time period. The bill specifies the reasons for which a landlord may retain any of the security deposit, including such reasons as damage to the premises and nonpayment of rent or utility charges for which the tenant is responsible. A landlord may not retain any portion of a security deposit for normal wear and tear to the premises. Any damage to a dwelling unit during a tenancy is rebuttably presumed to have been caused by the tenant.

The bill addresses promises made by a landlord to repair a premises and requires a landlord to specify the anticipated date of completion. The bill specifies provisions that may not be included in a rental agreement, such as a provision that relieves the landlord from liability for property damage or personal injury caused by negligent acts or omissions of the landlord. The bill also prohibits a landlord from taking certain actions. For example, except under specified circumstances, a landlord may not enter a dwelling unit except at reasonable times upon 12 hours' advance notice for the purpose of inspecting, repairing or showing the premises. Another prohibited action is terminating a tenancy or constructively evicting a tenant by reducing heat, water or electricity to the dwelling unit in retaliation against the tenant for reporting a code violation or joining or organizing a tenant's union or organization. The bill provides that the penalties that apply to a violation of the rental practices set out in the administrative code, such as double damages and reasonable attorney fees, also apply to a violation of the rental practices regulations provided for in the bill.

Current law requires the return date on the summons in an eviction action regarding a Wisconsin resident to be not less than 5 nor more than 30 days after the date of issuance of the summons. This bill limits the maximum return date period to 15 days after the date of issuance of the summons and requires a hearing within 5 working days after the return date when the eviction is contested. Under current law, a court commissioner, if delegated by a judge and with the approval of the chief judge, may perform numerous tasks, including issuing arrest and search warrants, conducting initial appearances in traffic and county ordinance cases, hearing petitions for commitment and conducting initial return appearance and conciliation conferences in small claims actions. This bill allows a court commissioner, if delegated by a judge and with the approval of the chief judge, to conduct eviction action trials, except jury trials, in small claims actions.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1038, s. 1 Section 1. 100.20 (5) of the statutes is amended to read:

AB1038,3,6 100.20 (5) Any person suffering pecuniary loss because of a violation by any other person of any provision of subch. II of ch. 704 or of any order issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.

AB1038, s. 2 Section 2. 100.20 (6) of the statutes is amended to read:

AB1038,3,16 100.20 (6) The department may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction the a violation of any provision of subch. II of ch. 704 or of any order issued under this section. The court may in its discretion, prior to entry of final judgment make such orders or judgments as may be necessary to restore to any person any pecuniary loss suffered because of the acts or practices involved in the action, provided proof thereof is submitted to the satisfaction of the court. The department may use its authority in ss. 93.14 and 93.15 to investigate violations of subch. II of ch. 704 or of any order issued under this section.

AB1038, s. 3 Section 3. 100.26 (3) of the statutes is amended to read:

AB1038,4,5 100.26 (3) Any person who violates s. 100.15 or 100.19 or any provision of subch. II of ch. 704, or who intentionally refuses, neglects or fails to obey any regulation or order made or issued under s. 100.19 or 100.20, shall, for each offense, be fined not less than $25 nor more than $5,000, or imprisoned in the county jail for not more than one year or both, except that a landlord, as defined in s. 704.915 (5), may not be imprisoned for a violation of any provision of subch. II of ch. 704 or of any regulation or order that is made or issued under s. 100.20 and that is related to residential rental practices.

AB1038, s. 4 Section 4. 100.26 (6) of the statutes is amended to read:

AB1038,4,11 100.26 (6) The department of justice or any district attorney may commence an action in the name of the state to recover a civil forfeiture to the state of not less than $100 nor more than $10,000 for each violation of subch. II of ch. 704 or of an injunction issued under s. 100.18, 100.182 or 100.20 (6) or an order issued under s. 100.20.

AB1038, s. 5 Section 5. 100.26 (6) of the statutes, as affected by 1995 Wisconsin Acts 27 and .... (this act), is repealed and recreated to read:

AB1038,4,21 100.26 (6) The department, the department of justice, after consulting with the department, or any district attorney may commence an action in the name of the state to recover a civil forfeiture to the state of not less than $100 nor more than $10,000 for each violation of an injunction issued under s. 100.18, 100.182 or 100.20 (6). The department of agriculture, trade and consumer protection or any district attorney may commence an action in the name of the state to recover a civil forfeiture to the state of not less than $100 nor more than $10,000 for each violation of subch. II of ch. 704 or of an order issued under s. 100.20.

AB1038, s. 6 Section 6. Chapter 704 of the statutes, as affected by 1995 Wisconsin Acts 27 and 56, is renumbered subchapter I of chapter 704 [precedes 704.01].

AB1038, s. 7 Section 7. Subchapter I (title) of chapter 704 [precedes 704.01] of the statutes is created to read:

AB1038,5,1 Chapter 704

AB1038,5,3 Subchapter I General provisions

AB1038, s. 8 Section 8. 704.05 (5) (a) (intro.) of the statutes is amended to read:

AB1038,5,8 704.05 (5) (a) Procedure. (intro.) If a tenant removes from the premises and leaves personal property, or if the landlord elects to have the landlord or his or her agent remove and store the property under s. 799.45 (3) (am), the landlord may do all of the following:

AB1038, s. 9 Section 9. Subchapter II of chapter 704 [precedes 704.91] of the statutes is created to read:

AB1038,5,11 Chapter 704

AB1038,5,13 Subchapter II Residential rental practices

AB1038,5,16 704.91 Scope of application. This subchapter applies to the rental of any dwelling unit located in this state, except that it does not apply to the rental or occupancy of a dwelling unit that is any of the following:

AB1038,5,19 (1) Operated by a public or private institution if the rental or occupancy is incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar services.

AB1038,5,21 (2) Operated by a fraternal or social organization for the benefit of its members only.

AB1038,5,23 (3) Subject to a contract of sale if the occupant is the purchaser or a person who succeeds to the purchaser's interest.

AB1038,5,25 (4) Located in a hotel, motel, boarding house, lodging house or other similar premises and the rental or occupancy is on a transient basis.

AB1038,6,2 (5) Furnished free of charge, or free of charge to an employe even though conditioned upon employment in and about the premises.

AB1038,6,4 (6) Subject to a rental agreement covering premises used by the occupant primarily for agricultural purposes.

AB1038,6,5 704.915 Definitions. In this subchapter:

AB1038,6,8 (1) "Building or housing code" means laws, ordinances or governmental regulations concerning the construction, maintenance, habitability, operation, occupancy, use or appearance of any premises or dwelling unit.

AB1038,6,11 (2) "Dwelling unit" means a physical structure or that part of a physical structure that is primarily used as a home, residence or place of abode. The term includes a mobile home or mobile home site.

AB1038,6,15 (3) "Earnest money deposit" means the total of any payments or deposits, however denominated or described, given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for consideration by the landlord of a rental application.

AB1038,6,21 (4) "Form provision" means a written rule, regulation or rental or contract provision that has not been specifically and separately negotiated and agreed to by the tenant in writing. Any provision appearing as part of a preprinted form is rebuttably presumed to be a form provision unless it is handwritten, or unless it is preprinted in type that is not smaller than 12-point type size and signed by the tenant.

AB1038,6,25 (5) "Landlord" means the owner or lessor of a dwelling unit that is subject to a rental agreement, or any agent acting on the owner's or lessor's behalf. The term includes a sublessor other than a person who subleases an individual unit that the person occupies.

AB1038,7,3 (6) "Mobile home" means a unit designed to be towed or transported and used as a residential dwelling. The term does not include a unit used primarily for camping, touring or recreational purposes.

AB1038,7,6 (7) "Mobile home site" means a plot of land that is rented or offered for rental to accommodate a mobile home. The term does not include a plot of land that is rented to accommodate a mobile home that is any of the following:

AB1038,7,7 (a) Occupied on a strictly seasonal basis.