Wisconsin Emergency Orders Increase Restrictions on Landlords

March 30, 2020

Over the past two weeks, Governor Evers has continued, through the Department of Health Services, to issue Emergency Orders related to the COVID-19 health crisis.  One area of his focus has been to restrict real estate landlords’ activities.

In his now seemingly old Emergency Order #12  (from last week Tuesday, March 20!), that imposed the Safer-at-Home program, the Governor imposed the somewhat vague restriction on landlords and property managers from entering rental units “unless emergency maintenance is required.”  No additional guidance was provided as to what would constitute emergency maintenance.  This restriction was limited to residential situations.  Commercial landlords are not restricted to entering their properties.

This limited restriction did not last long.  Subsequently, pursuant to Emergency Order #15, issue Friday, March 27 (the Order), the Governor substantially increased restrictions on landlords of both residential and commercial properties.  As was widely reported over the weekend, the Order places a moratorium on residential and commercial evictions in all but limited circumstances.  The focus of the Order is on the safety of tenants and landlords and the people involved in eviction proceedings, such as the Sheriff.  The order also placed restrictions on commencing legal proceedings for mortgage foreclosures, again with some exceptions.

Landlords are still permitted to commence eviction proceedings so long as the eviction is not based on the failure to pay rent and the landlord is willing to attest that a failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person.  Again, no additional guidance has been provided.  However, state law has provided for landlords to terminate tenancies as a result of  imminent threats of serious physical harm for many years.  Specifically, state law allowed the termination if the offending tenant was subject to certain injunctions (otherwise known as restraining orders) with respect to another tenant or child, or criminal complaints alleging matters such as sexual assault, stalking, domestic abuse, or so-called “no contact” conditional releases.

It is highly unlikely that such exceptions will exist in a commercial lease setting, so this moratorium has effectively shut down evictions proceedings in commercial settings until the Order expires or is replaced by action by the State Legislature.

It is also important to realize that eviction proceedings are creatures of and conducted in the county court system where the property is located.  Currently, most Wisconsin county courts are undergoing a restructuring of their hearing procedures to comply with the Governor’s orders as well as restrictions adopted by the Wisconsin Supreme Court.  As such, many counties are delaying or curtailing hearings on evictions.  A review of individual county court operating orders must be undertaking if it is determined that an eviction proceeding may still be commenced pursuant to the Order.

This Order restricting evictions remains in effect until  May 26, 2020.

We will continue to monitor this situation as matters progress and additional clarification is provided.

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