Evicting a tenant in holdover, do I need a serve notice?

Question

I have a tenant who is on a 12-month lease that ends 12/31/2017. He's aware his lease is ending and I'm not renewing the lease. I have every reason to believe that he'll not actually vacate the property by 1/1/2018 though. As such, I'm getting ready to file for eviction on 1/1 to keep the process moving along as quickly as possible. Still, I'm keeping my fingers crossed that I'm wrong and he'll actually vacate on time, but his word can't be trusted based on our experience.

The property is located in Wisconsin. I realize that when there's a normal violation of the lease, a notice of violation is served to the tenant and depending on the type of notice, if that violation isn't cured, a small claims case may be filed for eviction. In the event of holdover, is a notice of violation required? I've been combing through the state laws on this and I can't see any reference to the type of notice required before filing for eviction in the situation of holdover.

If no notice of violation is required, do I simply file in small claims court on 1/1/2018 for eviction? I've never had to do this before so I want to be sure I'm not missing a step in the process.

Jeff

Account Closed · Answer

First of all, the City Of Milwaukee holds a free landlord class for anyone about twice a month. It is fantastic and I suggest you attend the next one. The city wants good landlords, so they help out with all sorts of useful information, including the differences between a 12 month and a month to month and how to evict in either case.

You need to look at the terms of the lease to see if they put anything in there other than the state law default. The state law default (which Milwaukee follows), says that a 12 month lease will automatically renew as a MTM if a new lease agreement is not entered in to. That means your tenant has the right to stay beyond the 12 months without doing anything. State law default also says If you want your tenant to leave after the 12 months, you need to give them 60 days notice, which in your case would have needed to be done at the end of October. If the lease expires like you say at the end of December, and no other renewal provisions are made, the lease is then a MTM and the MTM rules apply, which is a 30 day notice. Worst case you provide notice of non-renewal before Jan 1 (now) and they must leave at the end of the month. Do this in writing, but you do not need to sent it certified (but that doesn't hurt), just on time - I would send them a text to let them know the letter is coming for an extra layer of proof you sent it, just in case. Good news is that it is much easier and faster to evict once the MTM kicks in. You can move for eviction on February 1st and each day they squat on your property, the court will award you double rent. WI is friendly to landlords in most cases and takes a common sense approach with the laws.

Last tip, there is a company called WI Legal Blank that provides landlord forms. They have a lawyer that goes over them every 6 months to make sure they are up to date with state law. I think it is about $40 for the deluxe package, that includes multiple copies with carbons of every form you could ever need. I get a new one for every new tenant.

Good luck!

Jon Holdman · Answer

IDK the cost in your area.  Around here its under a month start to finish and under $500.  But this varies a lot in different areas.

Attorneys will sometimes do a free initial consultation.  I had one review my lease several years ago.  I think I paid about $200.  Now I'm on their client list and I have called them with questions a couple of times since then and they answered with no further fees.  They also provide forms and an outline of the process.

I assume you do have something in writing stating the lease is not being renewed.  Like Account Closed describes, leases here automatically change to month to month and continue unless explicitly terminated by one party or the other.  The very first step would be to give written notice the lease is not being renewed.

Dawn Anastasi · Answer

I have a link to an eviction attorney on my website. It's only a couple hundred dollars, not thousands.

Account Closed · Answer

I had a couple details a bit wrong - you need to serve notice on the door AND send a letter the same day - there are multiple options for serving, but you must serve notice to legally evict. Also, the notice is 28 days (in your case), not 30.

Check out this link from the city, which provides step by step instructions and the fees. I found this on the city website, that also has all the forms available.

http://county.milwaukee.gov/ImageLibrary/Groups/cntyCourts/MJC/Documents/eviction_checklist.pdf

Wesley W. · Answer

Here in NY my attorney charges about $500, and with all the process server fees, etc. it's about $750 soup to nuts.  This is about a month's rent, and if you are in a very tenant-friendly jurisdiction (like I am), if you miss one minor detail you have to start all over again.  You'll be losing the month's rent, plus the psychological damage of knowing that tenant gets to stay at least another month for free because you screwed up the process...

Jeff Walden · Answer

Thanks @Jon Holdman, I reached out to a local attorney. Will be using him. I know every case is different, but any idea what I can expect for the average eviction filing in terms of attorneys fees? Less than $1,000? Less than $3,000? Looking for feedback on experience in the average eviction process.

Jon Holdman · Answer

Yes, you're missing a step - hire an attorney.  A first time eviction is not a DIY project.  If you make a mistake you'll have to start the process over from the beginning.  IDK the process in WI, but there is likely a notice required and then you proceed to eviction court (not small claims.)

Evicting a tenant in holdover, do I need a serve notice?

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