SB179: Bill Text

2013 Senate BILL 179

May 8, 2013 - Introduced by Senators Lasee and Schultz, cosponsored by Representatives Stroebel, Pridemore, Jacque, Kerkman and Bies. Referred to Committee on Insurance and Housing.

SB179,2,2 An Act to repeal 704.28 (4) (d), 704.44 (9), 799.45 (3) (am) 1., 799.45 (3) (am) 2., 799.45 (3) (am) 3., 799.45 (3) (am) 4., 799.45 (3) (am) 5., 799.45 (3) (am) 6. and 799.45 (3) (am) 7.; to renumber and amend 66.0104 (3), 349.13 (3m) and 799.45 (3) (am) (intro.); to amend 349.13 (5) (b) 2., 349.13 (5) (c), 704.05 (5) (a) 1., 704.05 (5) (bf), 704.07 (2) (bm) 1., 704.07 (3) (a), 704.08, 704.28 (2), 704.28 (4) (b), 704.95, 799.05 (3) (b), 799.06 (2), 799.12 (2), 799.20 (4), 799.206 (3), 799.40 (1), 799.40 (1m), 799.42, 799.44 (2), 799.45 (title), 799.45 (1), 799.45 (2) (b), 799.45 (2) (bg), 799.45 (2) (c), 799.45 (3) (title), 799.45 (3) (a), 799.45 (3) (b), 799.45 (3) (c) and 799.45 (4); and to create 66.0104 (2) (c), 66.0104 (2) (d), 66.0104 (3) (b), 349.13 (3m) (a), (c), (d) and (e), 704.28 (5) and 895.489 of the statutes; relating to: miscellaneous provisions related to rental and vehicle towing practices and eviction proceedings, prohibitions on enacting ordinances that place certain limitations or requirements on landlords, providing an exemption from emergency rule procedures, granting rule-making authority.

Analysis by the Legislative Reference Bureau

Provisions relating to landlords and tenants

This bill makes a number of miscellaneous changes to the statutes related to landlords and tenants, including the following:

1. Under current law, if a tenant removes from the rental premises and leaves personal property behind, in the absence of written agreement to the contrary, there is a presumption that the tenant has abandoned the personal property, and the landlord may dispose of it in any way that the landlord determines is appropriate, with the exception of prescription drugs, which the landlord must hold for seven days before disposal. If the landlord does not intend to store the property, the landlord must provide written notice of that fact to the tenant when the tenant enters into or renews a rental agreement. Also under current law, if a tenant is evicted from the premises and a writ of restitution is delivered to the sheriff, the sheriff executes the writ by removing the defendant, who is the tenant, and the defendant's personal property. However, in counties other than Milwaukee County, the plaintiff, who is the landlord, may notify the sheriff that the plaintiff or his or her agent will remove and store the property. Current law provides specific requirements for storage of the property and notice to the defendant, regardless of whether the sheriff or the plaintiff removes the personal property.

Under this bill, if a tenant is evicted from the rental premises, the sheriff executes a writ of restitution in the same manner as under current law. If the sheriff removes the personal property, the requirements under current law as to storage and notice to the defendant apply. The bill provides that a plaintiff in any county may notify the sheriff that the plaintiff or his or her agent will remove the personal property, in which case the provisions under current law that apply to personal property that is left behind if the tenant removes from the premises apply. There is a presumption that the defendant has abandoned the property and, in the absence of a written agreement to the contrary, the plaintiff may remove and dispose of the property in any manner that the plaintiff determines is appropriate, except for prescription drugs, which must be held for seven days before disposal. The bill provides that, if the landlord does not intend to store any property left behind, either if the tenant removes from the premises or is evicted, the landlord must provide written notice to the tenant when the tenant enters into or renews a rental agreement or at any other time before the tenant removes from or is evicted from the premises. If the landlord has not done that, the landlord may not dispose of the property in any manner that the landlord determines is appropriate, but must follow the notice, storage, and sale requirements that applied under former law when a tenant removed from the premises and left personal property behind.

2. Under current law, if an employee or a prospective employer of an employee requests an employer to provide a reference about the employee's job performance or qualifications, the employer is exempt from civil liability for providing the reference. The bill provides a landlord with an exemption from civil liability for providing a reference about the rental performance of an applicant for tenancy if the applicant or a prospective landlord of the applicant requests the landlord to provide the reference. As under current law for employers, there is a presumption that the landlord is acting in good faith. The presumption may be overcome only by clear and convincing evidence that the landlord knowingly provided false information in the reference or made the reference maliciously.

3. Current law provides that, if a tenant damages the premises through negligence or improper use of the premises, the tenant must repair the damage. However, the landlord may elect to do the repair, in which case the tenant must reimburse the landlord. The bill specifically provides that an infestation of insects or other pests may constitute damage to the premises and that, if the premises are damaged by the acts or inaction of the tenant, the landlord may elect to allow the tenant to remediate or repair the damage or may elect to remediate or repair the damage himself or herself, in which case the tenant must reimburse the landlord.

4. Under current law, a landlord must disclose to a prospective tenant any building or housing code violation to which certain specified criteria apply, including that the landlord has actual knowledge of the violation. The bill changes that criterion from the landlord having actual knowledge to the landlord having received written notice of the violation from a local housing code enforcement agency.

5. Under current law, a city, village, town, or county (municipality) is prohibited from enacting or enforcing certain ordinances relating to landlords and tenants, such as an ordinance imposing a moratorium on eviction actions or an ordinance that places certain limitations on what information a landlord may obtain and use concerning a prospective tenant. The bill additionally prohibits a municipality from enacting or enforcing an ordinance that limits a tenant's responsibility, or a landlord's right to recover, for any damage to, or neglect of, the premises; that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law; or that requires a landlord to communicate to the municipality any information concerning the landlord unless the information is required under federal or state law or is required of all residential real property owners.

6. Current law specifies what costs may be withheld from a security deposit and the timing for the return of a security deposit after a tenant removes from the premises. The bill limits these provisions to residential tenancies. In addition, the bill provides that if a tenant is evicted from the premises, his or her security deposit must be returned within 21 days after either the date on which the tenant's rental agreement terminates or the date on which a new tenant's tenancy begins if the landlord rerents the premises before the tenant's rental agreement terminates. Under current law, an evicted tenant's security deposit must be returned within 21 days after the earlier of the date on which a writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises.

7. Current law provides that a residential rental agreement is void and unenforceable if it contains a provision that does any of a number of certain specified things, including allowing the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not have prevented the crime. The bill removes that item from the list of provisions that, if contained in a residential rental agreement, make it void and unenforceable.

8. Current law provides that any violation of the chapter of the statutes that contains the landlord-tenant provisions may constitute unfair methods of competition or unfair trade practices under the provisions of the statutes under which the Department of Agriculture, Trade and Consumer Protection regulates marketing and trade practices. The bill limits the landlord-tenant provisions that, if violated, may constitute unfair methods of competition or unfair trade practices to the provisions relating to withholding from and returning security deposits and the provisions that, if contained in a residential rental agreement, make it void and unenforceable.

9. Current law provides that a person who is entitled to possession of real property may commence an eviction action. The bill adds that an agent of such a person, authorized in writing, may also commence the eviction action. Under current law, a person who commences an eviction action may appear in his, her, or its own proper person or by an attorney. A person is considered to be appearing in its own proper person if it appears by a full-time authorized employee. The bill adds that a person may appear in its own proper person by a member, or an agent of a member or authorized employee, of the person. Current law provides that an eviction action based on failure to pay rent may not be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant's tenancy. The bill provides that an eviction action based on failure to pay rent or for any other reason may not be dismissed because the landlord accepts past due rent or any other payment from the tenant after serving notice of default or commencing the eviction action.

10. Under current law, a landlord must provide to a 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. The bill changes this requirement so that the landlord must provide to the tenant a check-in sheet that the tenant may use to make comments about the condition of the premises.

Towing vehicles illegally parked on private property

Current law prohibits the removal (towing) of a vehicle involved in trespass parking on a private parking lot or facility without the permission of the vehicle owner, unless a parking citation is issued by a traffic officer or a repossession judgment is issued.

Under this bill, if a vehicle is parked without authorization on private property, the vehicle may be towed immediately, at the vehicle owner's expense and without the owner's permission, as follows: 1) from private property that is properly posted, whether or not a parking citation is issued; or 2) from private property that is not properly posted, only if a parking citation is issued or a repossession judgment is issued. "Properly posted" means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately towed. A vehicle may be towed under the bill only by a towing service at the request of the property owner or property owner's agent or of a traffic officer or parking enforcer. The vehicle owner must pay the reasonable charges for towing and, if applicable, storage of the vehicle and the towing service may impound the vehicle until these charges are paid. If these charges are not paid within 30 days or arrangements for installment payments are not made, the vehicle is considered abandoned and may be disposed of as are other abandoned vehicles. The Department of Transportation must promulgate rules establishing reasonable charges for towing and storage of vehicles under the provisions of the bill.

Eviction actions

The bill also makes changes to certain court procedures for eviction actions. Under current law, a civil action is generally commenced when the plaintiff in the action serves the defendant with a copy of the summons and complaint (summons) against him or her.

Generally, personal service of the summons must be made on the defendant or on another person who lives at the defendant's place of residence (substituted service), although current law allows a court, by rule, to authorize the service of the summons in mail in actions that are not eviction actions.

Under current law, a defendant in an eviction action must appear in court not less than five days nor more than 30 days after the summons is issued. The court generally sets the matter for a hearing when the defendant makes this initial appearance.

If the plaintiff prevails in an eviction action and the court determines that the defendant must leave the rented premises, the current law requires the court to order that a writ of restitution be issued to the sheriff in the county where the property is located. The writ of restitution requires the sheriff's department to remove the defendant and his or her personal property from the premises.

The bill allows a court, by rule, to authorize that the summons in an eviction may be served by mail. The bill also shortens the time during which a defendant in an eviction must appear from 30 days to 20 days and requires the court to set the matter for a hearing within 20 days of the date of the initial appearance. The bill requires a writ of restitution to be issued within five days after the court enters judgment in the eviction action.

For further information see the 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:

SB179,1 Section 1. 66.0104 (2) (c) of the statutes is created to read:

SB179,6,4 66.0104 (2) (c) No city, village, town, or county may enact an ordinance that limits a residential tenant's responsibility, or a residential landlord's right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant's occupancy of the premises, or for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.

SB179,2 Section 2. 66.0104 (2) (d) of the statutes is created to read:

SB179,6,8 66.0104 (2) (d) 1. No city, village, town, or county may enact an ordinance that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.

SB179,6,11 2. No city, village, town, or county may enact an ordinance that requires a landlord to communicate to the city, village, town, or county any information concerning the landlord, unless any of the following applies:

SB179,6,12 a. The information is required under federal or state law.

SB179,6,13 b. The information is required of all residential real property owners.

SB179,3 Section 3. 66.0104 (3) of the statutes is renumbered 66.0104 (3) (a) and amended to read:

SB179,6,18 66.0104 (3) (a) If a city, village, town, or county has in effect on December 21, 2011, an ordinance that is inconsistent with sub. (2) (a) or (b), the ordinance does not apply and may not be enforced.

SB179,4 Section 4. 66.0104 (3) (b) of the statutes is created to read:

SB179,6,22 66.0104 (3) (b) If a city, village, town, or county has in effect on the effective date of this paragraph .... [LRB inserts date], an ordinance that is inconsistent with sub. (2) (c) or (d), the ordinance does not apply and may not be enforced.

SB179,5 Section 5. 349.13 (3m) of the statutes is renumbered 349.13 (3m) (b) and amended to read:

SB179,7,7 349.13 (3m) (b) No If private property is not properly posted and a vehicle involved in trespass parking on a is parked on the private parking lot or facility shall be removed property and is not authorized to be parked there, the vehicle may be removed immediately, at the vehicle owner's expense, without the permission of the vehicle owner, except upon the issuance of a repossession judgment or upon formal complaint and the issuance of a citation for illegal parking issued by a traffic or police officer.

SB179,6 Section 6. 349.13 (3m) (a), (c), (d) and (e) of the statutes are created to read:

SB179,7,9 349.13 (3m) (a) In this subsection:

SB179,7,10 1. "Parking enforcer" has the meaning given in s. 341.65 (1) (ar).

SB179,7,13 2. "Properly posted" means there is clearly visible notice that an area is private property and that vehicles that are not authorized to park in this area may be immediately removed.

SB179,7,17 (c) If private property is properly posted and a vehicle is parked on the private property and is not authorized to be parked there, the vehicle may be removed immediately, at the vehicle owner's expense, without the permission of the vehicle owner, regardless of whether a citation is issued for illegal parking.

SB179,8,3 (d) A vehicle may be removed from private property under par. (b) or (c) only by a towing service at the request of the property owner or property owner's agent, a traffic officer, or a parking enforcer. The vehicle owner shall pay the reasonable charges for removal and, if applicable, storage of the vehicle. If the vehicle was removed at the request of the property owner or property owner's agent, these reasonable charges shall be paid directly to the towing service, and the towing service may impound the vehicle until these charges are paid. If these charges have not been paid in full within 30 days of the vehicle's removal and the vehicle owner has not entered into a written agreement with the towing service to pay these reasonable charges in installment payments, the vehicle shall be deemed abandoned and may be disposed of as are other abandoned vehicles.

SB179,8,5 (e) The department shall promulgate rules establishing reasonable charges for removal and storage of vehicles under this subsection.

SB179,7 Section 7. 349.13 (5) (b) 2. of the statutes is amended to read:

SB179,8,11 349.13 (5) (b) 2. A person who has custody of a vehicle removed or stored under subs. (3) to (4) or otherwise at the request of a law enforcement officer, traffic officer, parking enforcer, property owner, or property owner's agent shall release the personal property within the vehicle to the owner of the vehicle during regular office hours upon presentation by the owner of proper identification.

SB179,8 Section 8. 349.13 (5) (c) of the statutes is amended to read:

SB179,8,21 349.13 (5) (c) A traffic or police officer or parking enforcer who requests removal of a vehicle under subs. (3) to (4) by a towing service shall, within 24 hours of requesting the removal, notify the towing service of the name and last-known address of the registered owner and all lienholders of record of the vehicle if the vehicle is to be removed to any location other than a public highway within one mile from the location from which the vehicle is to be removed and if the officer or parking enforcer is not employed by a municipality or county that has entered into a towing services agreement which requires the municipality or county to provide notice to such owner and lienholders of the towing.

SB179,9 Section 9. 704.05 (5) (a) 1. of the statutes is amended to read:

SB179,9,3 704.05 (5) (a) 1. If a tenant removes from or is evicted from the premises and leaves personal property, the landlord may presume, in the absence of a written agreement between the landlord and the tenant to the contrary, that the tenant has abandoned the personal property and may, subject to par. (am) and s. 799.45 (3m), dispose of the abandoned personal property in any manner that the landlord, in its sole discretion, determines is appropriate.

SB179,10 Section 10. 704.05 (5) (bf) of the statutes is amended to read:

SB179,9,17 704.05 (5) (bf) Notice that landlord will not store property. If the landlord does not intend to store personal property left behind by a tenant, except as provided in par. (am), the landlord shall provide written notice to a tenant, when the tenant enters into, and when the tenant or renews, a rental agreement or at any other time before the tenant removes from or is evicted from the premises, that the landlord will not store any items of personal property that the tenant leaves behind when the tenant removes from, or if the tenant is evicted from, the premises, except as provided in par. (am). Notwithstanding pars. (a), (am), and (b), if the landlord does not provide has not provided to a tenant the notice required under this paragraph, the landlord shall comply with s. 704.05, 2009 stats., with respect to any personal property left behind by the tenant when the tenant removes from the premises, or if the tenant is evicted from the premises and the landlord notifies the sheriff under s. 799.45 (3m).

SB179,11 Section 11. 704.07 (2) (bm) 1. of the statutes is amended to read:

SB179,9,20 704.07 (2) (bm) 1. The landlord has actual knowledge received written notice of the violation from a local housing code enforcement agency.

SB179,12 Section 12. 704.07 (3) (a) of the statutes is amended to read:

SB179,9,25 704.07 (3) (a) If the premises are damaged by the negligence or improper use of the premises by, including by an infestation of insects or other pests, due to the acts or inaction of the tenant, the landlord may elect to allow the tenant must to remediate or repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the remediation, repair, or redecoration, and in such case the tenant must reimburse the landlord for the reasonable cost thereof; the cost to the landlord is presumed reasonable unless proved otherwise by the tenant.

SB179,13 Section 13. 704.08 of the statutes is amended to read:

SB179,10,16 704.08 Information check-in 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 tenant may use to make comments, if any, about 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.

SB179,14 Section 14. 704.28 (2) of the statutes is amended to read:

SB179,11,3 704.28 (2) Nonstandard rental provisions. Except as provided in sub. (3), a rental agreement may include one or more nonstandard rental provisions that authorize the landlord to withhold amounts from the tenant's security deposit for reasons not specified in sub. (1) (a) to (e). Any such nonstandard rental provisions shall be provided to the tenant in a separate written document entitled "NONSTANDARD RENTAL PROVISIONS." The landlord shall specifically identify and discuss each nonstandard rental provision with the tenant before the tenant enters into a rental agreement with the landlord. If the tenant signs his or her name, or writes his or her initials, by a nonstandard rental provision, it is rebuttably presumed that the landlord has specifically identified and discussed the nonstandard rental provision with the tenant and that the tenant has agreed to it.

SB179,15 Section 15. 704.28 (4) (b) of the statutes is amended to read:

SB179,11,9 704.28 (4) (b) If the tenant vacates the premises before the termination date of the rental agreement or if the tenant is evicted, the date on which the tenant's rental agreement terminates or, if the landlord rerents the premises before the tenant's rental agreement terminates, the date on which the new tenant's tenancy begins.

SB179,16 Section 16. 704.28 (4) (d) of the statutes is repealed.

SB179,17 Section 17. 704.28 (5) of the statutes is created to read:

SB179,11,13 704.28 (5) Application to residential tenancies. This section applies to residential tenancies only.

SB179,18 Section 18. 704.44 (9) of the statutes is repealed.

SB179,19 Section 19. 704.95 of the statutes is amended to read:

SB179,11,21 704.95 Practices regulated by the department of agriculture, trade and consumer protection. Practices in violation of this chapter s. 704.28 or 704.44 may also constitute unfair methods of competition or unfair trade practices under s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty arising under this chapter.

SB179,20 Section 20. 799.05 (3) (b) of the statutes is amended to read:

SB179,12,3 799.05 (3) (b) Except in eviction actions, the return date for a summons served upon a resident of this state shall be not less than 8 days nor more than 30 days from the issue date, and service shall be made not less than 8 days prior to the return date. In eviction actions, the return date for a summons served upon a resident of this state shall be not less than 5 days nor more than 30 14 days from the issue date, and service shall be made not less than 5 days prior to the return date.

SB179,21 Section 21. 799.06 (2) of the statutes is amended to read:

SB179,12,13 799.06 (2) A person may commence and prosecute or defend an action or proceeding under this chapter and may appear in his, her, or its own proper person or by an attorney regularly authorized to practice in the courts of this state. Under this subsection, a person is considered to be acting in his, her, or its own proper person if the appearance is by a full-time member or authorized employee of the person, or by an agent of the member or an authorized employee of the agent. An assignee of any cause of action under this chapter shall not appear by a full-time authorized employee, unless the employee is an attorney regularly authorized to practice in the courts of this state.

SB179,22 Section 22. 799.12 (2) of the statutes is amended to read:

SB179,12,17 799.12 (2) Any circuit court may by rule authorize the service of summons in some or all actions under this chapter, except eviction actions, by mail under sub. (3) in lieu of personal or substituted service under s. 801.11.

SB179,23 Section 23. 799.20 (4) of the statutes is amended to read:

SB179,13,4 799.20 (4) Inquiry of defendant who appears on return date. If the defendant appears on the return date of the summons or any adjourned date thereof, the court or circuit court commissioner shall make sufficient inquiry of the defendant to determine whether the defendant claims a defense to the action. If it appears to the court or circuit court commissioner that the defendant claims a defense to the action, the court or circuit court commissioner shall schedule a trial of all the issues involved in the action, unless the parties stipulate otherwise or the action is subject to immediate dismissal. In an eviction action, the court or circuit court commissioner shall schedule a trial of all the issues involved in the action within 20 days of the return date of the summons or any adjourned date thereof, unless the parties stipulate otherwise or the action is subject to immediate dismissal.

SB179,24 Section 24. 799.206 (3) of the statutes is amended to read:

SB179,13,10 799.206 (3) When all parties appear in person or by their attorneys on the return date in an eviction, garnishment, or replevin action and any party claims that a contest exists, the matter shall be forthwith scheduled for a hearing, to be held as soon as possible before a judge and in the case of an eviction action, not more than 20 days after the return date.