Rule-Making Notices (Hearing Notices)

Summary of, and comparison with, existing or proposed federal statutes and regulations

Federal law does not generally regulate landlord and tenant relationships or residential rental practices. The Federal Fair Housing Act of 1968 makes it illegal for a landlord to discriminate against a potential tenant because of a person's race, sex, national origin, or religion, and it prohibits certain discriminatory conduct.

Comparison with rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These statutes and rules address common topics such as rental agreements, security deposits and other duties of landlords and tenants.

Summary of factual data and analytical methodologies

This rule modifies the current rule to conform to policies dictated by a change in Wisconsin statutes.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

DATCP anticipates that the economic impact of this rule will be minimal. This rule makes minor changes to conform to Ch. 704, Stats. This rule also makes changes to the current rule to replace requirements that are no longer enforceable because of changes in Ch. 704, Stats.

Effect on Small Business/Initial Regulatory Flexibility Analysis

Rule summary

The Wisconsin legislature enacted Act 143 on March 21, 2012. Act 143 made changes to ch. 704, Stats., that affect some of the provisions of the current rule relating to:

•   Disclosures required before entering into a rental agreement.

•   Returning security deposits.

•   Withholding security deposits.

•   Prohibiting certain rental agreement provisions.

•   Confiscating personal property left behind by a tenant.

•   Violations of Landlord Tenant law may constitute a violation of Unfair Trade Practices Law.

As a result of Act 143, some provisions of the existing rule overlap and conflict with Ch. 704. This rule would modify the current rule to conform to the new statutory requirements.

Disclosures required before entering into a rental agreement

The current rule requires certain disclosures a landlord must make to the tenant before entering into a rental agreement with, or accepting any earnest money or security deposit from, a prospective tenant. These disclosures relate to conditions affecting habitability.

Act 143 creates s. 704.07 (2) (bm), Stats., which requires disclosures relating to habitability that are similar, but not identical, to the disclosures prescribed by the current rule.

This rule repeals and recreates the required disclosures to make them identical to the disclosures required by statute.

Returning security deposits

Under the current rule, if the tenant surrenders the property before the last day of the rental agreement, the landlord must return the security deposit within 21 days after the landlord receives a written notice from the tenant that the tenant has surrendered the premises.

Act 143 creates s. 704.28 (4) (b), Stats., which requires the landlord, if the tenant surrenders the property before the last day of the rental agreement, to return the security deposit within 21 days after the last day of the rental agreement.

This rule amends the requirement to a return a security deposit to be identical to the provision Act.

Withholding security deposits

Under the current rule, a landlord may withhold a tenant's security deposit only for specific reasons listed in the rule such as damage to the premises; unpaid rent; unpaid utilities or assessments that the landlord is liable for unpaid amounts; or other reasons specifically listed in the rental agreement as “nonstandard rental provisions."

Act 143 creates s. 704.28 (1), Stats., which incorporates very similar (but not identical) provisions into the statute.

This rule makes minor changes to the wording of the provisions relating to withholding a tenant's security deposit to conform with Act 143, but does not substantially change the requirements from the current rule.

Prohibited rental agreement provisions

The current rule describes provisions that a landlord is prohibited from placing in a rental agreement, such as:

•   Authorizing eviction by other than judicial procedure.

•   Acceleration of rent payments if tenant breaches obligations.

•   Requiring the tenant to pay landlord's attorney's fees in the event of a dispute.

•   Relieving the landlord from liability for damage or injury caused by negligent acts or omissions of the landlord.

•   Imposing liability on the tenant for personal injury arising from causes clearly beyond the tenant's control.

Act 143 creates portions of s. 704.44, Stats., which describe prohibited rental agreement provisions that are similar, but not identical, to provisions in the current rule. Further, Act 143 states that the entire rental agreement is void and unenforceable if it contains any of the prohibited provisions. The current rule does not have such a provision, but instead relies on a test established by the courts to determine whether the entire rental agreement is void based on the inclusion of a prohibited provision.

This rule makes minor changes in wording related to prohibited rental agreement provisions so that the rule is identical to the new statute. This rule also incorporates the provision in s. 704.44, Stats., that declares the entire rental agreement is void and unenforceable if it contains any of the prohibited rental agreement provisions.

Confiscating personal property left behind by the tenant

The current rule prohibits the landlord from confiscating the tenant's personal property except as authorized by law or in accordance with a written lien agreement. The current rule also prescribes the form and manner in which the landlord and tenant may execute the lien agreement.

Act 143 allows a landlord to dispose of personal property left behind by the tenant at the landlord's discretion as long as certain conditions are met. For example, there must not be a written agreement to the contrary, and the landlord must provide notice to the tenant of his or her intent not to store the property before the tenant enters into or renews a rental agreement.

This rule amends the current rule so that provisions relating to abandoned personal property are identical to the statute.

Small Businesses Affected

The current rule and the proposed rule regulate transactions between landlords and tenants. Many landlords are small businesses. However, this proposed rule does not have any material effect on any small business. The proposed rule does not change the duties and responsibilities of landlords in relation to their tenants. Instead, the proposed rule states the duties and responsibilities of the landlord and eliminates inconsistencies between the Ch. 704, Stats., and Ch. ATCP 134, Wis. Admin. Code.

Reporting, Bookkeeping and other Procedures

The proposed rule does not create any new reporting, bookkeeping or other procedures for small businesses.

Professional Skills Required

The proposed rule does not require any new professional skills by small businesses.

Accommodation for Small Business

Many of the businesses affected by this rule are “small businesses." For the most part, this rule does not make special exceptions for “small businesses". The nature of the subject matter does not lend itself to differentiating between types of businesses.

Conclusion

This rule will not have a significant adverse effect on “small business," and is not subject to the delayed “small business" effective date provided in s. 227.22 (2) (e), Stats.

DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.

Agency contact

Kevin LeRoy, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; email [e-mail]; telephone [phone].

ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original ⍽ Updated ⍽ Corrected
Administrative Rule Chapter, Title and Number
Ch. ATCP 134, Residential Rental Practices
Subject
Residential Rental Practices
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
X GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S			20.115(1)(a)
Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes X No
Policy Problem Addressed by the Rule
Ch. ATCP 134, Wis. Adm. Code, was enacted in 1980 and the rule was revised in 1998. The current rule regulates rental transactions between landlords and residential tenants as follows: •   Requires disclosure of rental agreement and earnest money receipts to the tenant. •   Requires disclosures to tenant prior to lease relating to the identity of the landlord, conditions affecting habitability, and utility charges. •   Prescribes procedures for accepting and withholding earnest money fees and credit check fees. •   Prescribes procedures for handling security deposits. •   Prescribes procedures for promises to repair. •   Prohibits a landlord from including in rental agreements provisions that do the following: •   Authorize unlawful eviction. •   Accelerate rent payments in event of tenant default. •   Require the tenant to pay attorney's fees. •   Authorize the landlord to confess judgment against the tenant. •   Relieve the landlord from liability for property damage or personal injury caused by the landlord. •   Impose liability on the tenant for property damage or personal injury not caused by the tenant. •   Waive statutory or legal obligations of the landlord. •   Prohibits a landlord from: •   Advertising or renting condemned premises. •   Unauthorized entries. •   Automatically renewing a lease without notice. •   Unlawfully confiscating personal property. •   Engaging in retaliatory or self-help eviction. •   Charging late rental fees and other penalties not set out in the lease. •   Misrepresenting the dwelling units offered or the amount of all rent and non-rent charges. •   Failing to disclose all non-rent charges in connection with the representation of any rent amount. Chapter 704, Stats., relating to Landlord Tenant, regulates transactions between landlords and both residential and non-residential tenants. The department does not administer ch. 704, Stats. The Wisconsin legislature enacted Act 143 on March 21, 2012 that made changes to ch. 704, Stats that also affect some provisions of current rule. This rule would modify the current rule to conform to the new statutory requirements.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
This rule makes minor changes to the existing rule and does not represent any significant shift in policy. It does not pose any significant fiscal or economic impact on specific businesses, business sectors, public utility rate payers, local governments or the state's economy as a whole.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Benefits This rule will benefit renters and landlords. Generally, it continues policies that have been in place for a number of years. Alternatives The passage of Act 143 leaves no real alternative. The newly created s. 704.95, Stats., prohibits DATCP from promulgating rules that change any right or duty described in ch. 704, Stats. There are a number of provisions where the existing rule is similar, but not identical to ch. 704, Stats. If this rule is not adopted, it is questionable that those rule provisions are enforceable. This is significant because DATCP, the Department of Justice, and district attorneys have the authority to enforce ch. ATCP 134 (as an Unfair Trade Practice under s. 100.20, Stats.) but do not have authority to enforce ch. 704, Stats.
Long Range Implications of Implementing the Rule
There are no long term implications of implementing this rule. This rule modifies the current rule to conform to policies dictated by a change in Wisconsin statutes.
Compare With Approaches Being Used by Federal Government
Federal law does not generally regulate landlord and tenant relationships or residential rental practices. The Federal Fair Housing Act of 1968 makes it illegal for a landlord to discriminate against a potential tenant because of a person's race, sex, national origin, or religion, and it prohibits certain discriminatory conduct.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These statutes and rules address common topics such as rental agreements, security deposits and other duties of landlords and tenants. Comments Received in Response to Web Posting and DATCP Response No comments were received in response either to the posting on the DATCP external website or the statewide administrative rules website.

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 13-003 CR 13-003

(DATCP DOCKET # 12-R-03)

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to create chapter ATCP 49, relating to the farmland preservation program.

DATCP will hold four public hearings at the time and place shown below.

Hearing Information

Date:   Thursday, February 14, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Outagamie County Highway Department
  Conference Room
  1313 Holland Road
  Appleton, WI 54911

Date:   Thursday, February 21, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   DNR Service Center
  Conference Rooms 158/185
  1300 W. Clairemont Avenue
  Eau Claire, WI 54701

Date:   Tuesday, February 26, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Marathon County UW-Extension Office
  Conference Room #5
  212 River Drive
  Wausau, WI 54403

Date:   Thursday, February 28, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Board Room (1st Floor)
  Department of Agriculture, Trade and Consumer Protection
  2811 Agriculture Drive
  Madison, WI 53718-6777

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by February 5, 2013, by writing to Alison Volk, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911; or by emailing [e-mail]; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Availability of Rules and Submitting Comments

DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until March 15, 2013 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, or to [e-mail], or to http://adminrules.wisconsin.gov.

You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules. wisconsin.gov.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to [e-mail], or by telephone at [phone].

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

Statutes interpreted

Chapter. 91, Stats.

Statutory authority

Sections 91.02 and 93.07 (1), Stats.

Explanation of statutory authority

DATCP has specific and general authority to establish rules interpreting and clarifying provisions of ch. 91, Stats., the farmland preservation program. DATCP has general authority for promulgating rules under s. 93.07 (1), Stats., for all of its program areas, and under s. 91.02 for the administration of ch. 91, Stats. Under s. 91.02 (1), DATCP has specific authority to set forth technical specifications for farmland preservation zoning maps under s. 91.38 (1) (d), Stats. DATCP has specific authority under s. 91.02 (2), Stats., to identify additional uses that would qualify as accessory uses, agricultural uses, agriculture-related uses, and base farm tracts. DATCP also has specific authority under s. 91.02 (2), Stats., to specify requirements for certifications of farmland preservation plans under s. 91.18 (1) (b), Stats., as well as farmland preservation zoning ordinances under s. 91.38 (1) (i), Stats. Section 91.02 (2), Stats., also gives DATCP specific authority to require information in an application for certification of a farmland preservation plan or amendment under s. 91.20 (4), Stats., or zoning ordinance under s. 91.40 (5), Stats., and to specify the types of ordinance amendments for which certification is required under s. 91.36 (8) (b) 3, Stats. DATCP has authority under s. 91.02 (2), Stats., to authorize additional uses in a farmland preservation zoning district under s. 91.42 (4), including additional uses allowed as permitted uses under s. 91.44 (1) (g), Stats., and as conditional uses under s. 91.46 (1) (j), Stats. Finally, DATCP has the authority under s. 91.02 (2), Stats., to require information in an application for a farmland preservation agreement under s. 91.64 (2) (h), Stats.

Related statutes and rules

Chapter 91, Stats., governs the state's farmland preservation program. Landowners who participate in the zoning or farmland preservation agreement provisions of the program are eligible for farmland preservation tax credits under s. 71.613, Stats. Under ss. 91.80 and 91.82, Stats., landowners claiming those tax credits are required to comply with soil and water conservation standards promulgated by the department under ss. 92.05 (3) (c) and (k), 92.14 (8), and 281.16 (3) (b) and (c), Stats. Those standards are found primarily in ch. ATCP 50, Wis. Adm. Code, as well as the Department of Natural Resources performance standards under ss. NR 151.02 to 151.08, Wis. Adm. Code.