The eviction process in Walworth County was created to enable landlords with problematic or dangerous tenants to reclaim their rental property. However, if the process is not followed precisely as outlined in the applicable statutes, the landlord may be forced to start the entire eviction process again or could be liable to the tenant for damages if the eviction was wrongful or improper. To help ensure this does not happen to you, here we discuss some common mistakes and misconceptions many landlords make when attempting an eviction on their own.
Mistake No. 1: Self-Help Eviction in Walworth County
In Walworth County, landlords may not exclude, forcibly evict, or constructively evict a tenant from a dwelling unit unless the landlord follows the eviction procedures established by law. This means that as the landlord, you cannot take actions to prevent the tenant access to property or to make the property untenable in hopes the tenant will vacate the property. Examples of this include attempting to intimidate, coerce, or make the tenant's living conditions miserable.
It is obviously frustrating if the tenant has not paid rent or is engaging in activity that is harmful to the property or otherwise breaching the lease. Renting property, however, is a business. Wisconsin legislators put laws in place to protect you when initiating a lawful eviction, but the laws also ensure the tenant's rights are honored during the process. If you take actions to “constructively evict” the tenant, the tenant could take legal action against you.
Examples of an Improper “Constructive Eviction”
The following are examples of improper constructive eviction if action is taken without a court order to do so:
- Changing the locks on the tenant's doors so the tenant cannot enter the property
- Removing the tenant's possessions from the property
- Turning off a tenant's utilities so there's no hot water, electricity, or gas
- Removing doors or windows from the property
- Harassing a tenant in the hopes that this intimidation will get the tenant to vacate.
Mistake No. 2: Failing to Give Proper Notice
In most cases, you must provide very specific notice to the tenant of his or her violations of the lease or other causes for eviction. The tenant must be given proper notice to either remedy the violation or vacate the premises. Violations can range from failing to pay rent on time or in full or breaching one of the provisions of the lease agreement.
Contents of the Notice
The notice should specify the lease violation or other cause for eviction, give the tenant a certain amount of time to remedy or vacate, and advise the tenant that eviction proceedings will commence in small claims court if the tenant does not timely remedy or vacate.
Service of the Notice
The notice must also be served on the tenant according to a specific statutory procedure. Notice can often be accomplished by physically giving it to the tenant. However, if this cannot be accomplished, notice must be given by leaving it with a certain person of age at the rental property or mailed in a certain manner to the tenant's last known address, or other measures that are specific to the type of cause for eviction and the type of lease.
Failing to give the proper notice is the most common mistake when handling the eviction process. This is because the notice requirements are tedious and vary from situation to situation. However, if proper notice is not given, the tenant can raise this as a defense to the eviction. This may force the landlord to start the proceedings over again.
Mistake No. 3: Unknowingly Creating a New Tenancy in Wisconsin
While notice to vacate is required in most circumstances, it is not required when the lease has expired and the tenant has not vacated on his or her own. If a tenant is “holding over” past the expiration of the lease, the landlord may file an eviction proceeding immediately without first serving an eviction notice.
However, it is critical to know that if the landlord accepts rent after the lease expires, a periodic tenancy is created. This is a tenancy that is not for a fixed-term, but one that renews periodically—for example, a month-to-month tenancy. By accepting rent outside of the expiration date, the landlord is agreeing to a renewal of the previous term. In such a case, notice for eviction proceedings—most likely a 28-day notice, in a month-to-month tenancy—will be required to terminate the tenancy.
Landlords should always make sure their tenants sign new leases at the beginning of each year or each term. This practice will not only protect landlords but also protects the tenants.
Mistake No. 4: Lack of Evidence to Evict in Walworth County
Another common mistake landlords make is during the actual eviction proceedings. Landlords need sufficient evidence to support a claim for eviction, but sometimes they lack it. For example, if you are trying to evict a tenant for failure to pay rent, bank statements and copies of correspondence referencing unpaid rent can be used as evidence. If you are trying to evict a tenant for damage to property, pictures of the damage and eyewitnesses linking the tenant to that damage can be used as evidence.
Documents you should bring to the eviction proceedings:
- Signed lease agreement
- Copies of any eviction notices
- Bank statements (showing nonpayment of rent)
- All correspondence between yourself and the tenant
- Pictures of damage to the property, if any
- Complaints From other tenants, if applicable
- Witnesses of lease violations, if available
- Any other evidence that will support your complaint for eviction.
Mistake No. 5: Not Hiring a Walworth County Eviction Attorney
The biggest mistake of all is taking on the risk of handling your eviction yourself if you do not know the proper procedure. Particularly if it is your first eviction, you will want someone experienced with the eviction process guiding you. This will ensure you have acted properly as the landlord and that the eviction goes smoothly. If you do not, you may enable the tenant to stay in the property longer while not paying rent, or you could end up owing the tenant damages for something you did wrong in the eviction process.
Avoid these risks. Attorney Brian Schuk is an experienced landlord-tenant attorney who is ready and trained to look out for you and help you through the process. Contact Schuk Law LLC today to discuss your eviction case.