Finally! The official word. These tenant/landlord laws changed December 21st – now here’s the city attorney’s interpretation. And they seem to have changed their mind on Section 8. The Tenant Resource Center had to do this work last November (update brochures, website, training guides, etc.) without adequate feedback and assurances from the city attorney’s office on how they would interpret the laws. And of course, I disagree on the strategy. Leave these ordinances on the books, see how the recalls go and if the Dems can repeal all the “local control” ordinances, restoring our ability to change these laws. By the time they get around to introducing this, sending it through committees and getting it back to the council, it will be another few months. Also, note a shift in attitude towards section 8 and expect some clean up language on that. I still disagree with their interpretation as it completely ignores the legislative history – but it looks like a fix is in the works. With their reasoning, they would never prosecute someone based on discrimination based on source of income like W-2 or SSI or SSDI.
Date: March 5, 2012
MEMORANDUM
TO: Landlord/Tenant Subcommittee
FROM: Lana J. Mades, ACA
RE: Impact of 2011 Act 108 (Creating Wis. Stats. 66.0104) relating to Landlord/Tenant Relations
The Office of the City Attorney has been asked to detail the Madison General Ordinances that will be affected by 2011 Act 108, which was recently signed into law by Governor Scott Walker. For ease of discussion, I have attached to this memo an initial draft of ordinance changes that would be in compliance with Act 108. While there have been instances in the past in which ordinances were pre-empted by legislation, but yet were kept on the books in the event such legislation changed in the future, it is the opinion of the City Attorney’s office that, given the scope of the changes, the affected ordinances should be revised in this instance.
The following sections of Chapter 32 should be revised in the following fashion in order to comply with 2011 Act 108 (See also highlighted portions of attached draft ordinances):
32.02(2)(c): Making definition of “earnest money” consistent with ATCP 134.02(3)
-Credit check fees are not considered earnest money32.02(2)(m): Making definition of “security deposit” consistent with ATCP 134.02(11)
-Removes language specifically related to pet, furniture and key deposits32.05(e): Making notice requirement prior to a showing consistent with ATCP 134.09(2)
-Allows a landlord to show the property with 12 hours notice, rather than 24
-Removes the language relating to the requirement that the notice contain the exact time of entry and limits the length of stay32.07: Rewriting security deposit refund procedures to be consistent with ATCP 134.06
-Removes the requirement that security deposits cannot exceed 1 months rent
-Removes the requirement that interest be provided on the deposit
-Removes the requirement that landlords provide check-in/check-out forms
-Removes the requirement that landlords include receipts with their security deposit withholding itemization
-Removes the requirement that photographs of damages are to be made available
-Removes the language prohibiting the increase or institution of a security deposit during a tenancy
-Removes the language prohibiting the holding of a security deposit by both a primary tenant and a sublessor32.10(2): Making earnest money procedures consistent with ATCP 134.05
-Removes the requirement of an itemization of amounts withheld from earnest money32.12(7): Removing the entirety of 32.12(7) does two things: 1) It gets the ordinances in compliance with Act 108 by removing restrictions against consideration or use of minimum income requirements or obtaining tenant’s social security number; and 2) It removes internally inconsistent language that relates to Section 8. 32.17(e) states, “Nothing in this subsection shall be construed to prohibit a landlord from denying an application based solely on an applicant’s participation in, or the requirements of, the federal Section 8 program.” This appears to be inconsistent with other sections of chapter 32, such as 32.12(13) through (15), which specifically prohibit landlords from taking certain actions because of participation in the Section 8 program.
-Please note that while the ordinances prohibiting landlords from taking certain actions based on a tenant’s involvement in the Section 8 program would theoretically survive Act 108, as a practical matter, they would be very difficult to prosecute. Act 108 allows landlords to make decisions based on a person’s income. Because eligibility for Section 8 is largely based on income thresholds, in most cases it would likely be difficult to prove to the requisite burden of proof that the landlord is acting specifically in response to Section 8, rather than in response to general income standards.
32.12(8): Removes restrictions regarding showing a property during first quarter of lease period
32.12(9): Removes restrictions regarding leasing a property to another tenant during the first quarter of the lease period
Certain portions of Chapter 39 (Department of Civil Rights) are also affected by Act 108. These portions include sections 39.03(2)(11) and 39.03(4)(a),(d), as landlords would now be allowed to require that tenants provide social security numbers, and could use conviction records, arrest records and occupational information in making rental decisions. Assistant City Attorney Adrianna Peguero can provide more specific information on the revisions needed to that Chapter.
Please let me know if I can be of any more assistance on this matter.
Sincerely,
Lana J. Mades
Assistant City Attorney
Madison City Attorney’s office
Anyways, that’s the latest and greatest from the city attorney on the laws that were eliminated last December 21st. Finally! I’ll have to double check all the details with my 100 page book at work, but it looks about right – by Thursday I will have it reviewed for the committee.
p.s. Unhappy, call the Apartment Association of South Central Wisconsin and thank Nancy Jensen. And don’t forget the Realtors Association (they must be ashamed, their video is now for members only).
