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  1. #1
    Join Date
    Nov 2009

    Default Tenant in Jail, Want to Evict

    What is the name of your state (only U.S. law)? WI

    Hi all, I have a tenant that has fallen behind in rent payment the last couple of months. We agreed on a payment plan for the missed rent that he signed. He hasn't come thru with any payments as agreed upon and missed more rents. He promised me he would be out by the 1st of this month so I could rerent it. I posted an ad for his unit, but noticed that towards the end of last month that he was not going to be out in time for a new renter. So I reluctantly didn't rent it, but I have perspective tenants that would like to rent it. I want him out and fast, so I can re rent it. The problem is I just found out he is in jail and will be for the next 15 or so days. (His girlfriend called me to inform me of this) He hasn't paid rent for the past 3 to 4 months and if I give him a 5 day pay or quit he is not going to pay in 5 days and then have to file an eviction for $100 and have him served for another $125. Then wait for a court date sometime within the next month and a half to two months, get the eviction and give him 2 weeks to get out, so I am looking at being able to rerent in February instead of Nov.

    OR, can I consider the unit to be abandoned and have him out now and sue later for past rent?

    Do I have any options here to get him out asap? He is on a verbal month to month lease, or do I have to go thru the 3 month process and lose $1000's that I will never see from him? What can I do? What are my options. Thanks in advance for any help.

  2. #2
    Join Date
    Jan 2008
    Toledo, OH

    Default Re: Tenant in Jail, Want to Evict

    You'll have to go through the formal eviction process.

  3. #3
    Join Date
    Jul 2009
    Cinnaminson, New Jersey, United States

    Default Re: Tenant in Jail, Want to Evict

    You will have to serve him an eviction notice and follow through the normal eviction procedure.

    FILING AN EVICTION - Wisconsin

    An eviction is a process landlords may begin when they believe a tenant has seriously violated the lease, and they want the tenant to fix the problem or leave the apartment. In Wisconsin, the process usually begins with a notice giving the tenant at least 5 days to remedy a violation. The process may eventually end up in small claims court with a judge deciding whether the tenant stays or whether the tenant will be removed from the apartment.
    It is important to remember that in Wisconsin a tenant can only be evicted by a judge.

    The EVICTION PROCESS: The Wisconsin eviction process begins when the landlord serves or gives the tenant a written notice under Wisconsin. Stat. 704.17 A landlord's notice is not the same as a Summons and Complaint from Small Claims Court.

    The Wisconsin landlord should try to give the notice to the tenant or someone in the tenant's family over the age of 14. If the landlord has tried that, he or she may post a copy of in an obvious place on the rented premises and mail a copy to the tenant's last known address, or send it by registered mail. However, if the tenant acknowledges that they actually received the notice, it does not matter what method of service the landlord used.

    Types of Notice: Note: A notice that your lease will not be renewed or a 28-day notice to end a month-to-month tenancy are non-renewal notices, not eviction notices.

    The notice must be in writing and include the date, the rent due or lease clause the tenant has supposedly violated, or the rent owed, the type of notice, and the right to cure the problem, if the tenant has one. There are several types of termination notices:

    1. 5-day Pay or Quit Notice is a warning that the tenant is late with rent. The landlord can only give this notice at a point when the rent is late. This notice can be cured. By law, the landlord has to allow tenants at least 5 days (not counting the day it is served, Saturday or Sunday, according to Wis. Stat. 801.15(1)) to pay all overdue rent. Your county, community action agency, or churches might assist. Some tenants mistakenly think they have to leave after receiving this notice! All tenants need to do to avoid a court summons is to pay all that is owed (and avoid being late again). Tenants may want to send a dated letter that explains how much rent is attached. Tenants should keep a copy of the letter and check for documentation that they paid in time.
    2. 5-day Notice for Non-Rent Violation is a warning that the tenant caused a disturbance, damaged property, or violated a lease rule. The landlord has to allow tenants at least 5 days, and the tenant is only required to promptly take "reasonable steps" to stop the violation, or make a "reasonable offer" to pay the landlord in the case of damages to the unit. Tenants should keep a copy of a letter to the landlord that either denies any violation, or explains that the tenant has taken reasonable steps to cure, or remedy, it (like turning down the stereo) within 5 days.
    3. 14-day no-right-to-cure notice orders you to move within a period of at least 14 days even if you fix the problem. The tenant has no right to cure! Landlords can give this notice to week-to-week and month to- month tenants. Tenants with rental agreements of more than a month can only be given this notice if they already received a 5-day for the same violation type (rent or non-rent) within the previous 12 months.
    4. A 5-day notice with-no-right-to-cure is rare. It can be given by the landlord only if the police give the landlord a notice that their property is a "drug nuisance" (drug making or selling is done by the tenant or done in the tenant's unit). A tenant can challenge this termination (do it in writing to the landlord and keep a copy), and then the landlord must let the tenant stay or schedule a court hearing and prove the "drug nuisance" to a judge.
    5. 30-day notice to cure is served only to tenants with a lease for more than a year, giving them at least 30 days to pay late rent or take steps to stop violating lease rules.

    The 5 or 14-day Notice: If the tenant is on a rental agreement for a year or less, the landlord must serve the tenant with a 5-day notice for the first lease violation. If the tenant commits a violation in the same category (rent or other) within 12 months after the 5-day notice was given, the landlord may serve either a 5- or 14-day notice.

    If the tenant has a month-to-month rental agreement, the landlord may give a 5- or 14-day notice for the first rent payment violation.

    Responding to the notice: Once you receive a 5, 14, or 30-day notice, you have three options:
    1. You can fix the problem and remain in the apartment.

    If you received a 5-day notice and you pay up or take reasonable steps to fix another type of violation within the time limit (the day served, Saturday and Sunday do not count (Wis. Stat. 801.15(1)), then you have the right to remain in the apartment. The landlord does not have a right to remove you or even go to court or to refuse a rent payment from you. Write a dated letter to the landlord saying the problem is cured and keep a copy. If you received a 14-day notice and fix the problem (remembering to document that you cured with a copied letter) you may still have to negotiate with your landlord. The landlord could refuse your rent and file an eviction summons and complaint to schedule a small claims court hearing. If you reach a settlement, try to get any agreement in writing, signed by all parties, and keep a copy.
    2. You can deny any violation and stay.

    You might wish to stay if you believe the landlord had no legal reason for giving the notice. Remember, you have a right to a trial and the landlord will need to pay a filing fee, wait for a hearing, and prove you violated the lease and that proper notices were given. Sometimes evictions have no grounds. Judges can allow tenants to reduce a percentage of rent to compensate for major health and safety hazards. Some evictions are thrown out or tenants win counter-claims because of laws against discrimination and landlord retaliation against tenants exercising their legal rights. Contact Tenant Resource Center for more information or a housing attorney for legal advice.

    However, if you stay and the landlord files a summons, even if the case is dismissed, the summons is public record. Future landlords might turn you down even for the dismissed eviction - so it is better to avoid the summons if possible.

    Also, the landlord could win the eviction and get a judgment for double the pro-rated rent for each day after the last 5- or 14-day. This situation is rare, but it happens. If possible, sometimes the safest option is to negotiate with your landlord; any agreement reached should be in writing with copies for both you and your landlord. Tenants and landlords can also use the Housing Mediation Service at (608) 257-2799 to negotiate an agreement.
    3. Move out

    This may be an option if you have a place to go. However, moving out does not end your responsibility for the rental agreement. Even if you leave, you will probably still owe the rent, as well as costs to re-rent or until the lease ends. (The landlord has a duty to make all reasonable efforts to rerent the unit, according to Wisconsin Stat. 704.29.) Also, even if you leave, the landlord may still file in court to evict you, just to make sure you do not move back in (avoid this by giving the landlord notice in writing of your move-out date and keep a copies for your records.) This court record or the landlord's bad reference or credit report can make it difficult to find another apartment.

    IF THE TENANT DOES NOT MOVE OUT: The only way a landlord may remove you is by a court order. Landlords cannot: change your locks, remove your possessions, push you out, turn off your utilities, throw things out in the street, or any self-help eviction. Most states are the same.

    The landlord needs a court order to remove you from the premises. Your landlord can be prevented from trying to remove you illegally, and can be fined, or even sued. Document what happens and any costs you have related to the illegal eviction. Call the sheriff's office, Consumer Protection at (800) 422- 7128, Legal Action, or a private attorney.

    The landlord must pay a filing fee and file at the county court. You should receive the Summons, from a sheriff or a civil process server, at least 5 days before the joinder conference or initial hearing. You must appear in court on that day or you will be evicted. You do not need to bring witnesses to a joinder conference, but be prepared to discuss your case at this time. The purpose of the conference is to find out if there will be a settlement (like a written payment plan or agreement for the tenant to leave on a certain date), or if there will need to be a trial. If a settlement is not reached, either party can request the trial to be on a different date. It is important that if you make a payment agreement that it is a reasonable payment schedule. If you make an agreement and do not follow through, you may be evicted without returning to court.

    If the case is not settled at the joinder conference it will proceed to trial. If you tell the small claims clerk that you do not want to hold the joinder conference and the trial on the same date, state law requires that the trial be rescheduled to a later date. At trial, you should be prepared to present all evidence and witnesses. Check with your clerk of courts to learn the procedure in your county.

    If Evicted: If you go to trial and lose in Wisconsin, the judge will issue a written order called a writ of restitution. After the landlord gives the sheriff the writ, the sheriff will come within 10 days to remove you from the apartment. Usually the sheriff will post a 24-hour notice before removing you from the premises. Only the sheriff has the authority to post a 24-hour notice and remove a tenant. (The tenant may contact the sheriff and attempt to arrange a move out date). If the sheriff removes you, your possessions will be moved to storage and you will have to pay reasonable moving and storage costs to retrieve them (but not back rent). After an eviction, it may be very difficult to rent again. If you are evicted you may wish to contact Tenant Resource Center, county human services, and First Call For Help at 211 or (608) 246-4357 (in Dane County) for agencies that provide emergency rent, shelter, and other assistance.

    After you are evicted, and the landlord has the opportunity to determine how much money you may owe, a rent and damages hearing will be held. The tenant should receive a notice of this hearing. At this hearing, a hearing examiner will determine the amount of judgment against you. It is important to attend so that you can provide information that may minimize the amount of the judgment. For example, landlords cannot charge for time spent rerenting or a rerental processing fee. Landlords have an unwaivable duty to mitigate or minimize all rerental costs (Wis. Stat. 704.29). For more information contact Tenant Resource Center. For legal advice, contact a housing attorney.

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