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.
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Acceleration of rent payments if tenant breaches obligations.
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Requiring the tenant to pay landlord's attorney's fees in the event of a dispute.
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Authorizing landlord to confess judgment against the tenant.
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Relieving the landlord from liability for damage or injury caused by negligent acts or omissions of the landlord.
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Imposing liability on the tenant for personal injury arising from causes clearly beyond the tenant's control.
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Waive obligation on the part of the landlord to deliver and maintain the premises in fit or habitable condition.
Act 143 created and Act 76 revised portions of s.
704.44, Stats., which describe prohibited rental agreement provisions that are similar, but not identical, to provisions in the current rule. In addition, Act 143 created two new prohibited rental agreement provisions — allowing the landlord to do certain things because a tenant contacted law enforcement, health, or safety services; or allowing the landlord to terminate the tenancy if a crime is committed on the rental property. Act 76 refined this particular prohibition to clarify that it apply to a termination of tenancy based solely on the commission of a crime. Act 76 also adds an additional prohibition against rental provisions that allow termination for a crime committed in relation to the rental property and the rental agreement did not include the notice requirement relating to certain domestic abuse protections.
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 revises the prohibition on certain 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 created and Act 76 revised s.
704.05 (5), Stats., which 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 to more closely align with s.
704.11, Stats. It also replaces references to a written lien agreement with a more general written agreement. As with the current rule, this rule prescribes certain requirements and limitations on any agreement allowing the landlord to seize or hold a tenant's personal property.
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 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.
ADMINISTRATIVE RULES
FISCAL ESTIMATE
AND ECONOMIC IMPACT ANALYSIS
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Type of Estimate and Analysis
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X Original ⍽ Updated ⍽ Corrected
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Administrative Rule Chapter, Title and Number
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Ch. ATCP 134, Residential Rental Practices
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Subject
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Residential Rental Practices
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Fund Sources Affected
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Chapter 20 , Stats. Appropriations Affected
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⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S
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Fiscal Effect of Implementing the Rule
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X No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
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⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Costs
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The Rule Will Impact the Following (Check All That Apply)
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⍽ State's Economy
⍽ Local Government Units
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⍽ Specific Businesses/Sectors
⍽ Public Utility Rate Payers
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Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes
X No
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Policy Problem Addressed by the Rule
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The department enacted ch. ATCP 134, Wis. Adm. Code, in 1980 and the rule was revised in 1998. The existing rule regulates rental transactions between landlords and residential tenants as follows:
• Requires the landlord to provide to the tenant before entering into the rental agreement copies of the rental agreement and a receipt for any earnest money or security deposits that the tenant has paid to the landlord.
• Requires the landlord to disclose to the tenant before entering into the rental agreement the names and addresses of the owners and managers, code violations and other conditions affecting habitability, and any utility charges that the tenant may be required to pay.
• 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.
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Require the tenant to pay attorney's fees.
• Authorize the landlord to enter a plea in a court action on behalf of the tenant in which the tenant agrees to accept a 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.
2011 Wisconsin Act 143 was enacted 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.
• Disposing of personal property left behind by a tenant.
• Violations of Landlord Tenant law may constitute a violation of Unfair Trade Practices Law.
2013 Wisconsin Act 76 was enacted on December 12, 2013. Act 76, among other things, made additional changes to landlord tenant requirements in ch. 704, Stats., including:
• Disposing of personal property left behind by a tenant.
• Damage to premises due to action or inaction of the tenant.
• Check-in sheets.
• Requiring notice of domestic abuse protections.
• Prohibition on rental agreement terms that allows landlord to terminate tenancy if a crime is committed in or on the rental property.
This rule makes revisions to ch. ATCP 134 that are necessary to conform the rule to provisions of ch. 704, Stats. (as amended) and ensure that enforcement of the rule will not change a right or duty provided by ch. 704, Stats.
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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)
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This proposed rule makes a number of minor modifications to the existing rule. However, these modifications simply align the rule with policy changes dictated by the legislature in 2011 Act 143 and 2013 Act 76. Therefore, any economic or fiscal impact would have been caused by that legislation, not this proposed rule.
Landlords and Tenants
Generally, relationships between landlords and tenants are governed by Chapter 704, Stats. and the existing ATCP 134, Adm. Rule. The legislature recently made a number of changes to Chapter 704, Stats. – some of which relating to subjects that are currently in Chapter ATCP 134, Adm. Code. This rule modifies the existing rule to ensure that there is no confusion between the rule and the recently revised statute.
Utility Rate Payers
The rule will have no impact on utility rate payers.
Local Governments
This rule will not impact local governments. Local governments will not have any implementation or compliance costs.
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Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
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Benefits
This rule benefits landlords, tenants, and other interested parties by ensuring that the rule follows policies recently adopted by the legislature.
Alternatives
Not make changes to existing rule. This would mean a number of provisions of the existing rule would be similar to the statute; but worded slightly differently; which could cause confusion.
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Long Range Implications of Implementing the Rule
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Same as Economic and Fiscal Impact discussed above.
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Compare With Approaches Being Used by Federal Government
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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.
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Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
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Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These laws address common topics such as rental agreements, security deposits, and other duties of landlords and tenants.
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Comments Received in Response to Web Posting and DATCP Response
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DATCP received no comments related to the economic impact in response either to the posting on the DATCP external website or the statewide administrative rules website. DATCP did, however, receive comments on the content of the proposed rule. DATCP will consider those comments as part of the public hearing process.
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Notice of Hearings
Agriculture, Trade and Consumer Protection
(DATCP DOCKET #: 14-R-01)
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on the proposed repeal of Chapter
ATCP 104, relating to leaf tobacco, buying and selling. DATCP will hold one public hearing at the time and place shown below.
Hearing Information
Date: Wednesday, July 9, 2014
Time: 9:00 a.m. to 11:00 a.m.
Location: Board Room (1st Floor)
Department of Agriculture, Trade and
Consumer Protection
2811 Agriculture Drive
Madison, Wisconsin, 53718-6777
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by July 7, 2014, by writing to Jennifer Heaton-Amrhein, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; or by emailing
jennifer.heatonamrhein@wisconsin.gov; or by telephone at (608) 224-5164. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Appearances at the Hearing and Deadline for Submission of Comments
DATCP invites the public to attend the hearings and comment on the proposal. Following the public hearing, the hearing record will remain open until
July 23, 2014, for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, or to
jennifer.heatonamrhein@wisconsin.gov, or to
http://adminrules.wisconsin.gov.
Copies of the Rule and Comments Relating to Small Business
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 (608) 224-5164 or by emailing
jennifer.heatonamrhein@wisconsin.gov. 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
keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule regulates transactions between tobacco growers and tobacco buyers. The department is proposing to repeal the rule.
Statutes interpreted
Statutory Authority
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.
Related statutes and rules
There are no Wisconsin Statutes or other rules that regulate transactions between tobacco growers and tobacco buyers.
Plain language analysis
Background
The existing ch.
ATCP 104, Wis. Adm. Code, prohibits leaf tobacco buyers from engaging in certain practices:
•
Attempting to induce another tobacco buyer to engage in specific activities that would artificially manipulate the market price for tobacco.
• Refusing to negotiate with any grower for the purchase of tobacco because such tobacco was previously graded or submitted for grade.
• Falsely representing in negotiations with a grower that any particular lot or crop of tobacco was purchased at less than the price actually paid, or that another tobacco buyer has or will cease buying tobacco.
• Purchasing tobacco under any contract which does not include a specific time within which delivery and payment are to be made.
• Giving or offering to give any grower any secret or separately stated bonus, commission, payment, or other consideration.
The existing rule also prohibits tobacco growers or sellers from soliciting or receiving any secret or separately stated bonus, commission, payment or other consideration.
This rule was originally promulgated as Department of Agriculture General Order #138 in 1952. At that time, tobacco farming was a prominent business in Wisconsin, and much of the crop was sold in cash markets at the conclusion of the growing season. This rule was necessary to ensure fair transactions between growers and buyers.
Today, the crop is generally produced and sold under contract (as opposed to a cash market at the end of the season). This means that ch.
ATCP 104, Wis. Adm. Code, as it is currently written, is irrelevant to the current industry.
Rule Content
This rule would repeal chapter ATCP 104, Leaf Tobacco, Buying and Selling, in its entirety.
Summary of, and comparison with, existing or proposed federal statutes and regulations
There are no known federal statutes or regulations (existing or proposed) that are comparable to ch.
ATCP 104, Wis. Adm. Code.
Comparison with rules in adjacent states
There are no known rules in adjacent states that are comparable to ch.
ATCP 104, Wis. Adm. Code.
Summary of factual data and analytical methodologies
This proposed rule simply deletes an unused chapter from the administrative code. It does not rely on factual or analytical data other than anecdotal information that growing under contract has replaced cash markets.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
Since repealing the rule has no effect on business (see above), no analysis is required under this section.
Effect on Small Business
This proposed rule would simply delete an outdated and obsolete chapter of the administrative code. DATCP does not anticipate any effect on small business.
DATCP Contact Person
Questions and comments related to this rule may be directed to
Jennifer Heaton-Amrhein
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone (608) 224-5164
Initial Regulatory Flexibility Analysis
Rule Subject: Leaf Tobacco Buying and Selling
DATCP Docket #: 14-R-01
Rule summary
This rule would repeal chapter ATCP 104, Leaf Tobacco, Buying and Selling, in its entirety.
Background
