WISCONSIN RESIDENTIAL REAL ESTATE AND ONLINE FORMS DO NOT MIX
Before I start haranguing landlords about the hazards of using online forms, let me start at the beginning of why we have lawyers, laws, and even crazy laws.
Lawyers are necessary in this nation of laws. Laws govern collective behavior from how fast you can drive to where you can build a building and whether you have to follow safe building practices in doing so. Without elaborating on anarchy, suffice to say that anarchy means people drive as fast as they want, on or off the road, cut corners when building houses, skyscrapers, or bridges. And when they see something someone else has that they want, they feel free to take it, by force or otherwise. Laws classify this behavior as allowable, desirable, or undesirable, etc.
But laws are not enough. You also need enforcement through police, district attorneys, courts, and other institutions to work together to form the justice system and government to protect the public. Healthy arguments about what needs to be changed in the justice system and government have always been needed. But almost all people can agree that some form of government is necessary. Lawyers are the other institutions mentioned. Without lawyers, law violations can go unnoticed, unnecessary or unsolvable disputes arise, and resolutions to arguments may not even be possible.
Even laws that seem crazy serve some purpose. Granted that purpose may be crazy, misguided, or overbearing. But sometimes the Legislature in its wisdom decrees a crazy law to alleviate a problem it sees impending, that exists in rare instances, or as part of a scheme to improve society. One such set of laws are residential tenancy laws. The legislature has decided that landlords have more knowledge, money, and access to information than tenants. Therefore, it has passed laws that are strongly worded in favor of tenants, partially to scare landlords into friendly patterns of behavior.
Now you may ask where online forms come in. Forms is my term for boilerplate contracts that business owners, landlords, or others find online or in form bank libraries. People with no legal training use these forms. Oftentimes they do so following the mantra of “something is better than nothing.” And they would rather start small or cheap than lawyer up. Online forms are extremely common today. I see these forms used by all sorts of people. Money, distrust of lawyers, disorganization, or inability to commit to getting a lease written is often the culprit.
But something is only sometimes better than nothing. And the Wisconsin legislature understands that. That is the reason for the host of laws inviting consumers or other unsophisticated parties to sue and collect double or treble damages for certain infringements. Word gets around. Double damages means the party being sued can countersue for twice the damages plus attorney’s costs for the lawsuit. These double damages provisions shift bargaining power—by design—to the weaker party in a contract. This is done to allay the perceived evil of landlords taking advantage of naïve college kids; or contractors taking advantage of homeowners. If you are a contractor or landlord, these laws act like landmines for your business.
If you walk through a mine field, you may survive. By chance, you could walk right by all sorts of mines and come through unscathed. A friend of mine did that once overseas. The unbelief on his face when he saw the mines behind him should be the same reaction you show, if you have been operating with online forms for years but have yet to be sued for a pile of money. There are ten clear ways that a landlord could be walking through a minefield right now.
A term exists in their leases allowing:
- The landlord to increase rent, decrease services, evict, refuse to renew, or threaten to take action because a tenant has contacted law enforcement, health, or safety services;
- Eviction of a tenant other than by a court order;
- Acceleration of rent payments for breach, or waiver of the duty to mitigate damages;
- Payment of attorney’s fees or costs to landlord in case of legal action or dispute;
- Landlord to speak on behalf of tenant in a legal action;
- Landlord to waive liability for damages from his or her own negligence;
- Landlord to impose liability on tenant for personal injury for causes beyond tenants control, or property damage caused by natural disasters or people who are not tenant’s guests;
- Landlord to waive any obligation to maintain habitability of the premises;
- Landlord to cancel lease based on commission of a crime where tenant is a victim;
- Landlord to cancel the lease for commission of a crime where proper legal notice is not rendered.
These ten mines are spelled out in ATCP 134.08. But these are not the only buried, explosive traps in the statutes or common law. The best thing you can do as a landlord is have a lawyer write your leases. It is an investment in your business that pays back in more than one way. Not only do you avoid the mine field, but your leases can be clear and make sense. Online forms are often missing important information as well as containing problematic information. And the tenant can tell when a lease is found online. They can hardly respect you as a landlord when they can google a blank version of your lease with no effort.
To conclude, lawyers are not always fun to pay for their work. But a lawyer that you work with regularly is worth their weight in gold. Lawyers shall always have a place in the economy despite the current rise and prevalence of online forms. Lawyers are either writing the leases, or suing on the messes that are the result of online forms—whichever you prefer.