Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 685, 1/31/2013

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 13-002 CR 13-002

(DATCP DOCKET # 12-R-07)

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed rule, chapter ATCP 134, relating to residential rental practices.

DATCP will hold one public hearing at the time and place shown below.

Hearing Information

Date:   Friday, February 22, 2013

Time:   9:00 a.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 8, 2013, by writing to Kevin LeRoy, Division of Trade and Consumer Protection, 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 hearing and comment on the proposed rule. Following the public hearing, the hearing record will remain open until March 8, 2013 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection 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 Trade and Consumer Protection, 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

Section 100.20 (1), Stats.

Statutory authority

Sections 93.07 (1), 100.20 (2) (a), and 704.95, Stats.

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP has authority under s. 100.20 (2) (a), Stats., to promulgate administrative rules forbidding trade practices which are determined by the department to be unfair and prescribing trade practices that are determined by the department to be fair.

Section 704.95, Stats. (created by 2011 Wisconsin Act 143) provides that practices in violation of Ch. 704, Stats., may also constitute unfair trade practices or unfair methods of competition under s. 100.20, Stats. This section also restricts DATCP from promulgating rules that change any right or duty arising under Ch. 704, Stats. However, there are a number of rights and duties in the existing rule, which predates 2011 Wisconsin Act 143 (Act 143), that are similar to the new statutory requirement.

Related statutes or rules

Chapter 704, Stats., regulates transactions between landlords and both residential and non-residential tenants. The department does not administer ch. 704, Stats.

Chapter ATCP 125, Wis. Adm. Code regulates rental transactions for sites upon which the tenant places a mobile home owned by the tenant.

Plain language analysis

Background

The department enacted ch. ATCP 134, Wis. Adm. Code, (“the existing rule") 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.

Rule Content

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.