Big Mess with Former Friend

[Don'tsmoke]

State of WI.

My brother needs advice asap. He lives in WI. His friend was picked up on DUI charges last year and decided to flee to Florida this past January to avoid prosecution.

The friend was renting a home and my brother at the time was living elsewhere with his teenaged son. The friend (Mr. D) tried to sublet the house to his own son but his son lost his job and couldn't pay the rent. So Mr. D offered to sublet the house to my brother so he could flee to Florida.

On March 1, 2009, my brother began paying the rent on the house and Mr. D was now living in Florida (since January). Mr. D did not notify his landlord that he had sublet the house and he asked that my brother not tell the landlord either. My brother sent money orders for rent directly to Landlord and put Mr. D's name on them as well as his own initials.

In September, Mr. D had a fight with the person he was living with in Florida and suddenly reappeared in Wisconsin. Within two days, Mr. D became demanding and started causing trouble in the house. Mr. D has no source of income and is on his last go around for unemployment. His plan was to let the house go altogether rather than let my brother actually rent it legally. My brother's son is now on chemo as he was diagnosed with cancer in August.

So essentially, Mr. D had no interest in keeping the house, he wanted my brother and his cancer stricken son to move out (they had nowhere to go) and Mr. D still had this DUI thing out there.

Three weeks ago, the sheriff showed up in the middle of the night and arrested Mr. D on his DUI. He was held without bond in WI but later extradiated to IL. He made bail yesterday and showed back up at the house.

After his arrest, my brother went directly to the landlord and provided proof that he was subletting from Mr. D. He asked that they give him a permanent lease as Mr. D's life was in transistion. They voided Mr. D's lease due to improper sublet and gave my brother a lease from March 1, 2009 to Feb 28, 2010.

After Mr. D showed up yesterday, he told my brother that he was "shutting down" the house November 1. Mr. D still has to face trial for DUI (his 5th). My brother said no to idea of shutting down house and informed Mr. D that lease was now in my brother's name.

This morning, Mr. D went to landlord and concocted some story. Landlord just called my brother and left a voicemail, she told him they were voiding his lease and house still belonged to Mr. D and my brother needed to leave.

Again, my brother has paid the rent on time for nine months. He has paid a security deposit at the time he was given the lease in his own name. As far as my brother is concerned, he has a legal lease that is good until the end of February. Also, Mr. D is unemployed and facing trial which is likely to result in 1-3 years in the Pen.

My brother tried calling landlord back but they are not in at the moment. He'd like to finish out the lease until Feb and then find someplace else. By Feb, his son will be done with chemo and things will be better so he can move.

He really needs some advice and he needs it fast. Please help.

[Mr. Knowitall]

If it were me I would say "to heck with these people" and move. If your brother really doesn't want to do that, he should be seeking help from a lawyer. If his means are limited he can start here.

[Scott67]

I agree that moving to get away from the mess would be the best approach if he can do that. Realizing the trauma and stress of chemo on both the patient and the caregiver, I can see where that could be more than he can deal with right now. Do you know what Mr. D's trial date is (will it be soon enough to make the problem go away)?

Anyway, the landlord cannot unilaterally void a valid written lease with a voice mail. It could be that she was intimidated or even threatened by Mr. D. Assuming that your brother does want to stay until February, I recommend that he talk to the landlord. Explain to her that he can not move immediately due to the chemo, and that the current lease is valid. Ensure that Mr. D does not have a key that works, changing the locks if necessary.

Re Mr. D: If your brother is concerned about potential violence, he should not hesitate to call the police if Mr. D shows up and demands access. If the landlord indicates that Mr. D threatened her, advise her to file a complaint with the police and pursue a restraining order.

Re the landlord: Evictions take time and money when there is no valid lease. In this case with a valid lease, the landlord would have an extremely tough time evicting your brother. She'd have to prove that he fraudulantly got her to void Mr. D's lease using that to establish that his lease is invalid and then proceed with eviction. By that time, February should be here. If the landlord is wise, she won't even start this process; she can look at the calendar, too.

It would be a good idea for your brother to pay for an hour of a Wisconsin attorney's time to make sure there isn't some problem with this approach.

As far as having to retain an attorney, I can say that I have evicted a few people over the years. None of them have retained an attorney; most just stretched it out as long as they could.

[Mr. Knowitall]

You seem to think that the landlord can unilaterally abrogate Mr. D's lease, but not the one that replaced it - you can't have it both ways. More to the point, if the first lease remains valid the landlord didn't have the legal right to convey the same premises to somebody else. I do agree that, if the brother really wants to stay, consulting a lawyer could be helpful.

[Scott67]

Well, sometimes you can have it both ways. It would be up to Mr. D to take legal action to establish that his lease was improperly terminated. The OP stated that the reason for the termination was "improper sublet". Would that hold up if Mr. D challenged it? I think it would, but it probably doesn't matter. If Mr. D takes that action and wins, he would then have to initiate eviction against OP's brother. And, it would appear that Mr. D is quite busy with his dui issues and probably doesn't have the money to pay an attorney to challenge the lease.

The second lease doesn't automatically become invalid because someone claims that they have a prior one. It would take court action to sort it out. OPs brother being in the property and paying rent means that SOMEONE would need to legally evict him to get him out. The fact that the landlord and Mr. D may have some issues to resolve to determine which of them could evict actually plays in the favor of OPs brother.

So, OP's brother either has a legal sublet from Mr. D, or a legal lease from the landlord.

But, we are agreeing that a discussion with an attorney would be wise. I just feel that the OP's brother's position is stronger than you do.

[Don'tsmoke]

Scott, you are correct in thinking that someone has to evict him. The big question here is who???

Mr. D was calling brother daily, demanding to know when he will vacate "his house". The landlord was contacted by legal aid and was combative and rude per the attorney who contacted her. She told the attorney to call her back on Monday to discuss further but now refuses to take the attorney's calls.

If brother sublet from Mr. D, then WI law provides that Mr. D give him written notice. If he has a valid Lease from Landlord, then Landlord owes him proper writtten notice. Either party MUST comply with the law and that hasn't happened yet.

LL claims that she doesn't give out Leases only Rental Agreements. The paper my brother has from LL agent clearly states that it is a Lease. In any case, LL sent a ten day notice to vacate claiming that my brother obtained the house under false pretense. No other details were included. Brother has proof that what he says is correct and true. Mr. D is the one making stuff up. Legal Aid says there is no such thing as a ten day notice in WI and is trying to strike a deal with LL. LL who claims she doesn't issue Leases is using a provision within the Lease document my brother has to give ten day notice. Even then, the provision lists five causes under which the Lease can terminate and none of those apply here.

Brother is paying November rent and balance of security deposit. He is going to make LL refuse his payment. Mr. D has trial date this month for his DUI and is likely to end up in jail for quite some time. He stopped calling after brother told him he would see him in court. Mr. D even called utility and claimed he was owner of the house and he wanted the power shut off immediately. Utility has this noted on my brother's account. It's a big mess.

Brother has contacted a mortgage broker and is now looking for a home to purchase with his VA loan. He is merely trying to stay put until he has somewhere else to go. I guess that is the silver lining here, he finally decided to buy his own place and stop renting.

[Scott67]

It is somewhat confusing why the landlord would be that "active" in trying to get your brother to vacate if Mr. D. is effectively now out of the picture. Seems very strange; I'd think she'd be happy to be collecting rent. It might be humorous to hear her try to present her case on why she feels your brother obtained the house under false pretenses faced with a lease with her signature on it. If she is trying to evict, it has to be under the terms of the lease she signed with him. If she wants to take some sort of civil action to prove that he somehow mislead her to get her to give him the lease and that that makes the lease invalid, I'd doubt that she could even get a court date before February.

At any rate, it is a good time to buy a house with prices and interest rates both down. If your brother can find a place that he can purchase that quickly, she's actually given him an out, to get out of the lease before February. Assuming that he finds a place, advise him not to jump too quickly on moving. Sometimes people in an uncomfortable situation accept an "early move in" prior to close of escrow. Lots of things can go wrong at that point. He should make sure that all the i's are dotted and the t's are crossed before moving so he doesn't get himself into another stressful situation.

February is just around the corner in terms of real estate transactions.

[HollywoodLandlord]

The first problem is that the landlord cannot just 'cancel' Mr. D's lease and immediately put it into your brother's name.

The landlord would have to formally evict Mr. D for breaking the terms of the lease (presumably the lease said, "no subletting without properly notifying the landlord or no subletting at all)... this process would take some time.

So, your brother (even though he has a lease in his name) is technically living on Mr. D's lease until he is evicted and the landlord is given possession of his own property back. The landlord is actually the one in the wrong right now regardless of what happens to Mr. D.

Whether or not your brother has any rights due to the lease he was provided by the landlord is a whole separate question that would best be answered by an attorney.

[Don'tsmoke]

Hi Scott,

Mr. D is now having his mail forwarded from house as per USPS mailed notice my brother received in mailbox.

LL is somehow related to Mr. D albiet rather distantly (like she is the sister of Mr. D's sister's husband or some such nonsense) That might be why she is being so stubborn about it all.

In any case, Mr. D appears to have given up. No more calls and no more visits. With mail being forwarded now, it appears Mr. D is onto plan B.

Brother sent balance of security deposit in per agreement as well as rent for November. He sent it trackable mail so he confirms LL agent received it. So far, nothing has happened. It hasn't cleared his bank and it hasn't been returned.

Brother has found a home in school district he can afford. He made a deal with seller and should be able to take possession of it at end of the Lease term with this crazy LL. So, alls well that ends well. Thanks for your advice. It really gave my brother some comfort when all was crazy.

[Scott67]

You are very welcome. It is great to know something turned out for the better and that we have had some small part in that happening. Thank you for the feedback and update.