u Whether heat, water and electricity are included in the rent or billed separately. If dwelling units do not have separately metered heat, water and electricity, the landlord must also disclose the basis on which he or she will allocate the utility charges. (This rule makes no change.)
Nonstandard rental provisions:
Current rules identify certain rental provisions which a landlord may not incorporate into a rental agreement as boilerplate “form provisions,” because of their potential unfairness to tenants. If a landlord uses “form provisions” at all, the landlord and prospective tenant must separately negotiate each provision and each provision must be included in a separate written document entitled, “NONSTANDARD RENTAL PROVISIONS.” This rule clarifies the procedure which the landlord and tenant may use to separately negotiate nonstandard rental provisions.
This rule prohibits the use of the following provisions in a rental agreement, unless they are included in a separate written document entitled, “NONSTANDARD RENTAL PROVISIONS.”
Ü Any agreement expanding the landlord's usual rights of entry to the tenant's dwelling unit (see later in this notice).
Ü Any agreement expanding the usual reasons for which a landlord may withhold monies from the tenant's security deposit (see later in this notice).
Ü Any lien agreement giving the landlord a lien on the tenant's personal property to secure performance of the tenant's obligations under the rental agreement (see later in this notice).
If the landlord wants to include any of the above provisions in the rental agreement, the landlord must discuss each “nonstandard rental provision” with the prospective tenant. If the tenant signs or initials a “nonstandard rental provision,” then there is a presumption that the landlord discussed each provision with the tenant and the tenant agreed.
Practices during tenancy:
Receipts for cash rent payments:
Under current rules, a landlord must give a tenant an immediate receipt for any cash deposit, such as an earnest money or security deposit, paid by the tenant. Under this rule, a landlord must also give a tenant an immediate receipt for any cash payment of rent, stating the nature and amount of the payment. The landlord is not required to give a receipt for a rent payment made by check.
Fit and habitable premises:
Under current rules, a landlord may not use a boilerplate “form provision” in a rental agreement to secure the tenant's waiver of any statutory or other legal obligation which the landlord has to provide fit and habitable premises or to maintain the premises during tenancy. This rule strengthens the current provision, by prohibiting any rental provision that purports to waive those legal obligations.
Unauthorized entry:
With certain exceptions, current rules limit the reasons for which a landlord may enter a tenant's dwelling unit. The current rules also require prior notice of entry (normally 12 hours prior notice) and prohibit entry except at reasonable times.
This rule clarifies the current rules. With certain exceptions, this rule prohibits a landlord from doing either of the following:
Ě Entering a dwelling unit during tenancy, except to inspect the premises, make repairs, or show the premises to prospective tenants or purchasers, as authorized under s. 704.05 (2), Stats. A landlord may enter for the amount of time reasonably required to inspect the premises, make repairs, or show the premises to prospective tenants or purchasers.
Ě Entering a dwelling unit during tenancy except upon advance notice and at reasonable times. Advance notice means at least 12 hours advance notice, unless the tenant, upon being notified of the proposed entry, consents to a shorter time period.
These entry restrictions do not apply in any of the following circumstances:
6 The tenant, knowing the proposed time of entry, requests or consents in advance to the entry.
6 A health or safety emergency exists.
6 The tenant is absent and the landlord reasonably believes that entry is necessary to protect the premises from damage.
Under current rules, a tenant may agree to a nonstandard rental provision (other than a boilerplate “form provision”) which authorizes the landlord to enter a tenant's dwelling unit under circumstances not authorized above. This rule clarifies that:
- Any nonstandard provisions must be contained in a separate written document entitled, “NONSTANDARD RENTAL PROVISIONS” (see earlier in notice).
- The landlord must specifically identify and discuss the nonstandard rental provisions with the tenant, and provide a copy of the nonstandard provisions to the tenant.
- If the tenant signs or initials the nonstandard rental provisions, there is a presumption that the landlord specifically identified and discussed each provision with the tenant and the tenant agreed to the provisions.
This rule creates a new provision that no landlord may enter a tenant's dwelling unit during tenancy without first announcing the entry to persons who may be present in the dwelling unit (such as by knocking on the door or ringing the doorbell). The landlord must also identify himself or herself upon request.
Late rent fees and penalties:
This rule prohibits a landlord from charging a late rent fee or late rent penalty, except as specifically provided in a written rental agreement. Before charging a late rent fee or late rent penalty, the landlord must first apply all rent prepayments received from the tenant to offset the amount of rent owed by the tenant. A landlord may not charge a tenant a fee or penalty for nonpayment of a late rent fee or late rent penalty.
Returning security deposits:
Deadline for returning security deposit:
Under current rules, a landlord must return or account for a tenant's security deposit within 21 days after the tenant “surrenders” the premises to the landlord. This rule clarifies that a tenant is deemed to “surrender” the premises on the last day of tenancy specified under the rental agreement, except that:
ä If the tenant gives the landlord a written notice that the tenant has vacated before the last day of tenancy specified in the rental agreement, “surrender” occurs when the landlord receives the written notice that the tenant has vacated.
ä If the tenant vacates the premises after the last day of tenancy specified in the rental agreement, “surrender” occurs when the landlord learns that the tenant has vacated.
ä If the tenant is evicted, “surrender” occurs when a writ of restitution is executed, or the landlord learns that the tenant has vacated, whichever occurs first.
Security deposit return or accounting:
Under current rules, a landlord must return the full amount of a tenant's security deposit within 21 days after a tenant “surrenders” the rental premises, less any amounts properly withheld by the landlord (see later in this notice). The landlord must provide the tenant with a written statement accounting for all amounts withheld.
Under current rules, the landlord must return the security deposit in person, or by mail to the tenant's last known address. If the tenant surrenders the premises without leaving a forwarding address, the landlord may mail the security deposit to the tenant's last known address.
Under this rule, if a landlord returns a security deposit in the form of a check, draft or money order, the landlord must make the check, draft or money order payable to all tenants who are parties to the rental agreement, unless otherwise authorized in writing by the tenants.
Reasons for withholding security deposit:
Under current rules, a landlord may withhold money from a tenant's security deposit only for the following reasons:
$/ Tenant damage, waste or neglect of the premises.
$/ Unpaid rent for which the tenant is legally responsible, subject to the landlord's duty to mitigate under s. 704.29, Stats.
$/ Payment which the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.
$/ Payment for direct utility service provided by a government-owned utility, to the extent the landlord becomes liable for the tenant's nonpayment.
$/ Unpaid mobile home parking fees which a local unit of government has charged to the tenant under s. 66.058 (3), Stats., to the extent that the landlord becomes liable for the tenant's nonpayment.
$/ Other reasons specified in a rental provision which the landlord and tenant negotiated separately as a “NONSTANDARD RENTAL PROVISIONS” agreement. (See earlier in notice.)
This rule clarifies that any rental provision that expands a landlord's authority to withhold a security deposit must be negotiated in the following manner:
□ The nonstandard provisions, if any, must be contained in a separate written document entitled “NONSTANDARD RENTAL PROVISIONS” (see earlier in notice).
□ The landlord must specifically identify and discuss the nonstandard rental provisions with the tenant, and provide a copy to the tenant.
□ If the tenant signs or initials the nonstandard rental provisions, it is presumed that the landlord has specifically identified and discussed the provisions with the tenant, and that the tenant has agreed to the provisions.
Neither this rule nor the current rules authorize a landlord to withhold money 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.
Failure to return or properly account for security deposit:
This rule clarifies that, merely by accepting a partial refund of an earnest money deposit, a tenant does not automatically waive any claim he or she may have to a larger refund.
This rule creates a note referring to the appellate court decision in Pierce v. Norwick, 202 Wis.2d 588 (1996), regarding the award of damage claims for failure to comply with rules related to security deposits.
Eviction and related issues:
Confiscating personal property:
Under current rules, a landlord may not confiscate a tenant's personal property, or prevent a tenant from taking possession of the tenant's personal property, except as authorized by s. 704.05 (5), Stats., or a lien agreement with the tenant. The lien agreement may not be created by a boilerplate “form provision” in the rental agreement, but must be separately negotiated with the tenant. This rule clarifies the method by which the landlord and tenant must negotiate a lien agreement:
ĥ A lien agreement, if any, must be contained in a separate written document entitled “NONSTANDARD RENTAL PROVISIONS” (see earlier in this notice).
ĥ The landlord must specifically identify and discuss the lien agreement with the tenant, and must give the tenant a copy.
ĥ If the tenant signs or initials the lien agreement, it is presumed that the landlord has specifically identified and discussed it with the tenant, and that the tenant has agreed to it.
Self-help eviction:
Current law, ch. 799, Stats., affords landlords a prompt judicial procedure for evicting tenants. This procedure was enacted, in part, to discourage self-help evictions by landlords.
Current rules prohibit rental agreements which purport to authorize self-help eviction. This rule prohibits self-help eviction. Under this rule, a landlord may not exclude, forcibly evict or constructively evict a tenant other than by the judicial eviction procedure provided under ch. 799, Stats.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate:
The proposed amendments will modify the current ch. ATCP 134 rules to make it easier for landlords and tenants to understand its requirements. The amendments also update the rule to reflect practical experience and to clarify language.
The proposed regulations affect enforcement activities in which the Trade and Consumer Protection Division's staff already engage; therefore, the Department estimates no fiscal effect.
Since municipalities are not responsible for enforcing ch. ATCP 134, there should be no fiscal effect on them, as the amendments impose no additional responsibilities.
The Department already handles complaints from tenants about problems with rental transactions. The Department assumes that the number of complaints about this subject will not increase due to this change in the law. The Department also assumes that this law will assist Department staff by providing clearer language that will enhance staff efficiency in dealing with these problems. The adoption of the proposed rule revisions will have no state or local fiscal effect.
Initial Regulatory Flexibility Analysis
Proposed ch. ATCP 134, Wis. Adm. Code (Residential Rental Practices)
The Department's proposed rules will have an impact on most landlords who lease residential dwelling units. Many of these landlords are small businesses, as defined by s. 227.114 (1) (a), Stats.
The current rules regulate residential rental practices by landlords under ch. ATCP 134, Wis. Adm. Code. This rule, developed in consultation with an ad hoc advisory committee that included landlord and tenant representatives, clarifies and simplifies the current rules. This rule will assist landlords in complying with ch. ATCP 134, and should decrease the number of legal conflicts between landlords and tenants.
This rule clarifies how it regulates business practices and simplifies the procedures landlords must follow to comply with the rules. The revisions do not create additional financial burdens; therefore, they will not adversely affect small business.
The Department anticipates a period of education and information to assist landlords and tenants in learning the new revisions.
Notice of Hearing
Public Service Commission
Notice is given that a public hearing will be held with respect to a proposed amendment to s. PSC 112.05, Wis. Adm. Code, in the Amnicon Falls Hearing Room, Public Service Commission Building, 610 North Whitney Way, Madison, Wisconsin 53705, on Thursday, February 26, 1998, at 1:30 p.m. This building is accessible to people in wheelchairs through the Whitney Way main floor entrance (Lobby). Parking for people with disabilities is available along the south side of the building. Any party with a disability who needs accommodations should contact Richard Teslaw at 608-267-9766.
Analysis Prepared by the Public Service Commission of Wisconsin
Statutory authority: ss. 196.02(3), 196.49(3)(b), and 227.11
Statutes interpreted: ss. 196.49, 196.491, and 196.495
On December 4, 1997, the Commission directed on its own motion that a rulemaking proceeding be initiated to amend ch. PSC 112, Wis. Adm. Code, specifically, s. PSC 112.05, Wis. Adm. Code.
This chapter describes which electric construction projects are of significant scope and cost as to require review and approval under the statutory provisions of s. 196.49, Stats., for monetary thresholds or limits based on the estimated cost of the project. These rules were last revised in late 1995 and became effective December 1, 1995.
The principal reasons for the proposed amendment are to adjust the cost thresholds of the current rules and to strike a balance between the needs of the public and Commission for oversight, review and approval of the larger, more significant projects and the utility's need for reasonable latitude to pursue the large number of less significant, minor and routine construction projects without the delays and burdens of specific regulatory approval.
On September 30, 1997, the Commission, in its Report to the Governor on Electric Reliability, recommended increasing the cost thresholds of s. PSC 112.05, Wis. Adm. Code, to eliminate some projects from Commission review and approval. This recommendation furthers the effort to streamline the regulatory review process and to address reliability needs. Commission staff analysis of construction project applications indicates that many projects are additions, upgrades or modifications to existing generating plants and substations or are minor transmission improvements. The ability to complete these types of projects quickly will enable utilities to respond to local reliability concerns without either an unreasonable rate impact for utility customers or the increased risk of environmental harm.
Text of Rule
The Commission proposes that s. PSC 112.05(3), Wis. Adm. Code, be amended as follows:
