Notice provision for city inspection preempted by state statute

by Andrea Vaage

Olson et al. v. City of La Crosse
Wisconsin Court of Appeals, July 16, 2015

Landlords in La Crosse, Wisconsin challenged a City ordinance that would have required them to participate in an inspection and registration program. The circuit court rejected the challenge. The landlords appeal, arguing the part of the ordinance requiring the landlords to notify tenants of a city inspection was preempted by state statute.

The LaCrosse notice provision in question states:

“(3) The owner [of a rental property] shall arrange for access to the dwelling or dwelling unit and all portions of the property affected by the rental of the dwelling or dwelling unit and shall notify all tenants of the [City] inspection in accordance with Wisconsin law and the lease agreement between the owner and the tenant. Failure to provide access to the property and dwelling or dwelling unit on the agreed inspection date will subject the owner to the fees specified in Section 8.09 of this Code and denial of the registration certificate.

(4)  Except as otherwise provided by law …, inspections shall not be conducted:

….(c)  Without prior notice to the tenant by the owner as required by state law or the lease agreement.”

 

The relevant Wisconsin statute provides: “No city, village, town, or county may enact an ordinance that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.”

Despite the Wisconsin statute cited above, the City identified two state statues and an administrative code provision that they argued worked together to require a landlord to notify tenants of a city inspection. The Court found that the first of the state statutes, and the administrative code, applied to landlord inspections, not city inspections, and were inapplicable to the situation.

The other statute, Wis. Stat. 704.07(2), requires landlords to “comply with any local housing code.” The City argued that the notice provision was part of the local housing code, and therefore proper under Wis. Stat. 704.07(2). The Court interpreted these statutes in a manner that harmonized them. “We give each its full force and effect by interpreting them as requiring landlords to “comply with any local housing code” while also prohibiting local governments from including in local housing codes any provision that “requires a landlord to communicate to tenants any information that is not required to be communicated to tenants” under any other federal or state law.” This interpretation, the court stated, would not substantially change the powers of the municipality. The City could still conduct inspections, but they would be responsible for notifying tenants of city inspections, not the landlords.

The Court reversed the circuit court decision to uphold the notice provision, while upholding the rest of the ordinance.

 

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