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For LL's: Who has the burden of proof on newley bought property?

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papashaq

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

Hi guys, I recently bought a 12 unit property from an estate. The original owner had died and his father was in charge of the estate. Neither the dad nor the son took very good of paperwork. I got a one page lease for each unit and that was it. He ran things for about a year in between death and sale. I had one tenant move out 1/2 month after I bought the property, she had been living there for 3 to 4 years starting the the tenancy through the deceased son. She had her 30 day notice into the father before the sale. After she moved out I did a walk through with out her and made notes of damages. I then took those off of her security deposit. She is now suing me for every thing I charged her for. I asked her if she filled out a check in sheet at the start of her tenancy and she said no, and then proceeded to say that I bought the property as is, with the damages that already occurred before the sale date, and I knew the unit was like that before I bought it. She also says she has witnessess that will testify about the damages at the time she moved in.

Here are the things I charged her for and what she said about them:

A bedroom painted pink- she says the son paid her to paint it that way, all other rooms are white.

Holes in bifold doors and knobs missing on another set- she says it was that way when she moved in.

Rid apartment of cat urine smell- She says she is not paying for carpet cleaning when that is something that needs to be done anyway. She also says it smelled like cat urine when she moved in, and the basement carpet needs to be replaced anyway. I asked her if she lived in an apt that smelled like cat urine for 3-4 years, and she said yes. I also had to clean the carpets 3 times to get rid of the smell as well as clean ducts and air apt and put a scent thing in the furnace filter and run that for a night.

Holes in screen- she says they were that way when she moved in. One window had the whole bottom half of the screen torn out. when I asked her about it she said she never opened that window for 3 and 1/2 years.

Mising floor register- she says it was gone when she moved in and the son couldn't find the right one to replace it, she just put furniture around it. I had it fixed with one trip to menards and 3 minutes of work.

Broken blinds- she says she purchased them and left them there to be nice. (I did check my purchase contract and it doesn't say window coverings)

Smoke alarm missing covers- she says they are as old as dirt and never had covers

A can light broken and hanging from wires- she say it was that way when she moved in.

In WI we automatically go to mediation to try and hash it out before we go to a trial. I already had one mediation with her and she wouldn't settle for nothing less then the full amount, $630.00, I offered her $400 and she said no. So because she sued me and not my LLC company that owns it, I had the case dismissed. So we get to go to mediation again.

Does she have to prove that the damages were there when she moved in, even without a move in sheet or is she right that I bought the property "as is"? Should I try to mediate or let it go to trial? Will I win? I spent a lot of money to get everything fixed, but I don't want to go after her for the damages if she didn't cause them. Except the cat smell charge...that I will not budge on. Any adivce?

Sorry this is so long, but wanted to make sure you knew all circumstances to give me advice on what to do. Thanks in advance.
 


papashaq

Member
By the way, I am willing to go to trial, just to, as a life lesson, see how the judge will rule on this. Unless anyone has had a similar problem and can tell me the outcome.
 

cabanks27

Member
She has to provide proof that the damages were pre-existing. That inspection sheet protects the tenant, not the landlord.
 

MIRAKALES

Senior Member
The security deposit settlement statement should include all damages (intentional/unintentional, existing/pre-existing) and should be issued within the required twenty-one (21) days set by Wisconsin (WI) law. The original lease agreement should state that premises were delivered in good condition. The property move-in inspection report would determine which issues were pre-existing and attended to (fixed) by LL soon after move-in.

The law makes tenants responsible for all damages except “normal wear and tear.” Tenant would need to prove that damages existed to dispute these worn and torn items. None of the items in question are normal. Tenants must restore premises to original move-in condition and that includes paint, broken or missing items, cleaning and sanitation. It is not necessary for tenant to perform all the work but tenant does assume the cost.

LL should require Property Move-In Inspection Reports for all new tenants to avoid future conflict. LL should perform a property inspection of all apartments for remaining tenants to note existing damages and necessary immediate repairs. The “as is” condition included in property purchase agreement is only relevant to the purchase. The “as is” purchase clause only means the seller would not be responsible for damage repairs prior to closing.
 

papashaq

Member
Thank you for the replies. This is how I felt when it all started, I don't think the for LL would have rented her the unit in the shape she is claiming it was in. I have court the beginning of November, I will keep you posted on the outcome.
 

tranquility

Senior Member
She has to provide proof that the damages were pre-existing. That inspection sheet protects the tenant, not the landlord.
Tenant would need to prove that damages existed to dispute these worn and torn items.
Huh? Before any burden of proof shifts to the defendant, the landlord would need to prove up the property's conditions on the move in.

As in all things the preponderance of the evidence is key. The tenant says, "it was like this when I moved in" and the landlord/OP says, "I bought the property and have no idea how it was when the tenant moved in." Who has met the burden?
 

ecmst12

Senior Member
A 3-4 year old paint job would have little to no value and you shouldn't be charging for that. Same with 3-4 year old blinds, if they were the cheap ones, regardless of who originally bought them.

If she owns a cat, it's reasonable for you to link the smell to her and can charge her for cleaning costs. If you'd had to replace the carpet, you could only charge her the depreciated value, but cleaning costs are fair game.

The rest of the items sound at least plausible from both points of view; they are relatively minor issues that she might have just accepted if the rent was low and the place was otherwise to her liking. On the other hand, she has no real proof that she did NOT cause the damage. And on yet another hand, you have no proof that she DID. Wisconsin is an extremely tenant friendly state, so keep that in mind if you decide to risk a trial. However her claiming that you bought the property 'as is' (how would she know that anyway?) has nothing to do with anything. You bought the property INCLUDING the leases and security deposits of the tenants living there, and all the rights that go along with it.
 

HomeGuru

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

Hi guys, I recently bought a 12 unit property from an estate. The original owner had died and his father was in charge of the estate. Neither the dad nor the son took very good of paperwork. I got a one page lease for each unit and that was it. He ran things for about a year in between death and sale. I had one tenant move out 1/2 month after I bought the property, she had been living there for 3 to 4 years starting the the tenancy through the deceased son. She had her 30 day notice into the father before the sale. After she moved out I did a walk through with out her and made notes of damages. I then took those off of her security deposit. She is now suing me for every thing I charged her for. I asked her if she filled out a check in sheet at the start of her tenancy and she said no, and then proceeded to say that I bought the property as is, with the damages that already occurred before the sale date, and I knew the unit was like that before I bought it. She also says she has witnessess that will testify about the damages at the time she moved in.

Here are the things I charged her for and what she said about them:

A bedroom painted pink- she says the son paid her to paint it that way, all other rooms are white.

Holes in bifold doors and knobs missing on another set- she says it was that way when she moved in.

Rid apartment of cat urine smell- She says she is not paying for carpet cleaning when that is something that needs to be done anyway. She also says it smelled like cat urine when she moved in, and the basement carpet needs to be replaced anyway. I asked her if she lived in an apt that smelled like cat urine for 3-4 years, and she said yes. I also had to clean the carpets 3 times to get rid of the smell as well as clean ducts and air apt and put a scent thing in the furnace filter and run that for a night.

Holes in screen- she says they were that way when she moved in. One window had the whole bottom half of the screen torn out. when I asked her about it she said she never opened that window for 3 and 1/2 years.

Mising floor register- she says it was gone when she moved in and the son couldn't find the right one to replace it, she just put furniture around it. I had it fixed with one trip to menards and 3 minutes of work.

Broken blinds- she says she purchased them and left them there to be nice. (I did check my purchase contract and it doesn't say window coverings)

Smoke alarm missing covers- she says they are as old as dirt and never had covers

A can light broken and hanging from wires- she say it was that way when she moved in.

In WI we automatically go to mediation to try and hash it out before we go to a trial. I already had one mediation with her and she wouldn't settle for nothing less then the full amount, $630.00, I offered her $400 and she said no. So because she sued me and not my LLC company that owns it, I had the case dismissed. So we get to go to mediation again.

Does she have to prove that the damages were there when she moved in, even without a move in sheet or is she right that I bought the property "as is"? Should I try to mediate or let it go to trial? Will I win? I spent a lot of money to get everything fixed, but I don't want to go after her for the damages if she didn't cause them. Except the cat smell charge...that I will not budge on. Any adivce?

Sorry this is so long, but wanted to make sure you knew all circumstances to give me advice on what to do. Thanks in advance.
**A: the money is so small it is not even worth arguing about.
 

MIRAKALES

Senior Member
The plaintiff initiating legal action has the burden of proof. The defendant responding to legal action needs only to make a reasonable and legal defense. Several of the items listed would make the premises hazardous or uninhabitable, if true. Therefore, it is not likely the hazardous premise conditions existed at move-in, such as missing floor registers, missing smoke alarm covers, hanging electrical fixture, cat urine, etc. These items are not considered "normal wear and tear" and tenant has the burden of proof if these damages were pre-existing.

Most well-written lease agreements will stipulate that the premises were delivered in good condition. Even if it is not mentioned in the lease agreement, it is not reasonable that any tenant would accept the premises in substandard condition and be willing to pay rent for it. Irresponsible tenants often create an escape clause for lease violations... this is not new or original. A responsible tenant would notify LL in writing of the damages in order to request repair. (It is not likely that tenant will have proof of LL notification to prove their case.)
 

tranquility

Senior Member
Therefore, it is not likely the hazardous premise conditions existed at move-in, such as missing floor registers, missing smoke alarm covers, hanging electrical fixture, cat urine, etc.
Not likely? Based on WHAT? Are you going to argue the judge should take judicial notice of such? Are you bringing in an expert who will say this? Please. Learn evidence law before stating rubbish.

These items are not considered "normal wear and tear" and tenant has the burden of proof if these damages were pre-existing.
Give me a cite for this theory which vaires from black letter evidence law.

Most well-written lease agreements will stipulate that the premises were delivered in good condition.
Pity the OP has no such "well-written" lease. Did you even read his post? How about we stick to the facts and not make thing up?

Even if it is not mentioned in the lease agreement, it is not reasonable that any tenant would accept the premises in substandard condition and be willing to pay rent for it.
Do you have case law which supports this theory?

A responsible tenant would notify LL in writing of the damages in order to request repair.
Interesing duty. A tenant has an affirmative dute to notify the landlord of substandard conditions. Are there any other duties you'd like to make up?


Please stick to the law and/or the facts in your responses. I am not addressing WI law specifically, but know income property landlord/tenant law pretty well in general. There is no support I know of for your propositions. I call you out to prove them up.
 
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papashaq

Member
Tranquility, where do YOU think I stand then? What would make my case stronger/weaker? With your knowledge of the LL/Tenant law can you tell me where the courts would stand on this? If I were your client what would you advise? Thank you.
 

MIRAKALES

Senior Member
Advice to LL: Let the court decide. If still concerned about trial… attend a few housing court hearings and note the judges line of questioning. Allow tenant to confirm their disposition and allow the court to determine if it is reasonable. Bring evidence of other apartment conditions. Obtain affidavits of premise conditions from tenants in good standing.
It is more important to enforce the judgment and collection when LL succeeds. LL’s concern is to restore premises to original condition for new qualified tenant.
For the future, if LL does not have an attorney then review court records for recommendations or use the former LL’s attorney. Join a national or local landlord association for successful advice.

Tenant: Your Honor, having lived in this apartment for 3-4 years without the benefit of floor registers, smoke alarm covers, light fixtures, door knobs and urine stained carpet, it is tenant’s position that LL is responsible for the substandard living conditions. As tenant, I performed my duty of payment despite the substandard conditions. In addition, LL accepted the sale of the property “as-is” therefore tenant is not responsible for any damages existing to the property.

Judge:
“Been there... Heard that…”

It does not make for a solid case. Irresponsible tenants often create an escape clause for lease violations.
 

cabanks27

Member
I wouldn't worry about tranquility's kangaroo advice, Papa.

The tenant will say "It was there before I moved in" and the judge will say, "Do you have proof? Pictures? A move in inspection sheet? No? Judgement for the Landlord."
 

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