Respondents Brief — Devines v. Maier

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S3-21kR~- FILED

JUL 30 1984

Case No. a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

DELORES DEVINES, et al.,

Petitioners,

Vv.

HENRY W. MAIER, et al.,

Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT

OF CERTIORARI

GRANT F. LANGLEY

City Attorney

PATRICK B. MCDONNELL

Assistant City Attorney

Attorneys for Respondents

P.O. ADDRESS:

800 City Hall

200 E. Wells St.

Milwaukee, WI 53202

(414) 278-2601 July 25, 1984

BEST AVALLABLE COPY

TABLE OF CONTENTS

Page

QUESTION PRESENTED. cccccccccccccsessccelh a

STATEMENT OF THE CASE...cccccccccceees sl

THE WRIT SHOULD NOT ISSUE BECAUSE

DEVINES II IS IN ACCORDANCE WITH

PRIOR HOLDINGS OF THIS COURT.........11-32

A. NATURE OF TENANT'S PROPERTY

a ee eo!

B. NO REASONABLE EXPECTATIONS

OF CONTINUED OCCUPANCY IN

UNINHABITABLE DWELLING UNIT......19-23

C. HABITABILITY IS A REASONABLE

CONDITION ATTACHING TO THE

RETENTION OF THE RIGHT TO LIVE

IN A DWELLING 0, re fo

I EE er yk

Authorities Cited

Agins v. Tiburon, 447 U.S. 255 (1980)...28

Alexander v. United States Dept.

of Housing & Urban Development,

441 U.S. 39 $2, | Rye

Andrus v. Allard, 444 U.S. 5l

Sg FPP PPT TITTLE TTT TT TT. ft .

Calero-Toledo v. Pearson Yacht Leasing

Co.» 416 Uewe 663 0 ears

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419

PRED &é dk 660640066 60606560808 60 aOR eee

ii.

Miller v. Schoene, 276 U.S. 272

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Mugler v. Kansas, 123 U.S. 623

ESA Tr err rrrererrerer ory 2:

Parratt v. Taylor, 451 U.S. 527 (1981)...4

Penn Central Transportation Co. v.

New York City, 438 U.S.

104 (1978) ....eeeeee2211,19,20,23,24,27

Posnanski v. Hood, 46 Wis. 2d 172,

ere COUPE gc cecceccesecese de

Price v. City of Junction Texas, 71ll

Pa eet: ise... .... 23

Texaco v. Short, 454 U.S. 516

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Webb's Fabulous Pharmacies v. Beckwith,

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CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

Wisconsin Statutes

Page

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Sec. 66.05 (1) (a) -cccccccccccccce seeccese 14

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Sec. 704.07 (3) (a) ecccccseces coceesceceese 12

SOS. 704.07 (4) cccccccccnsesecesscecsescsedss

Milwaukee Code of Ordinances

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Sec. 12-3(3) (4) & (5S). cccccccecevee ee lL5—16

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Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

DELORES DEVINES, et al.,

Petitioners,

Vv.

HENRY W. MAIER, et al.,

Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT

OF CERTIORARI

QUESTION PRESENTED

Whether the court below correctly

applied this Court's prior holdings when

it concluded that the City of Milwaukee

and State of Wisconsin could reasonably

condition the continued retention of a

tenant's property right to occupy a rented

dwelling unit upon the maintenance of that

unit in a habitable state of repair,

without being obliged, under the Fifth and

Fourteenth Amendments, to pay just

compensation to tenants who are ordered

out of dwelling units determined to be

uninhabitable?

STATEMENT OF THE CASE

The petitioners have not presented

the "concise statement of the case"

required by the rules of this Court;

rather they have presented a statement

which offers unsupported conjecture amply

spiced with inaccuracies.

While the petitioners would like to

characterize the City's actions of

placarding an uninhabitable dwelling unit

as a summary proceeding, thereby

intimating no recourse on the occupant's

part, that is hardly the case and the

Seventh Circuit recognized that in Devines

Lie (A-P. p- 120)

e———eeeas“__ SaaS

Tenants and landlords have a numbe.

of opportunities to challenge the

placarding action of the City, including

obtaining a temporary restraining order

challenging the reasonableness of the

Building Inspector's actions pursuant to

sec. 66.05(3), Wis Stats., or if the

Building Inspector is acting under the

building and maintenance codes of the

Milwaukee Code of Ordinances (hereinafter

referred to as "MCO"), i.e., Chapters 12

and 51, MCO, tenants and landlords can

petition the Building Maintenance Code

Enforcement and Appeals Board for review

of the Building Inspector's action.

Section 12-11(3), MCO. Tenants also have

the option of contesting any forfeiture

action brought against them for violation

of a vacate order on the ground that the

subject structure was not uninhabitable.

Section 12-14, MCO.

i P ee 7

7” * igre 2 7 = 2 ake

Paar, ; a es oe ee aie a a

Under any of the above procedures, a

tenant's property right to occupy his

rental unit is not terminated, if he

chooses to contest the matter, until after

the opportunity for a full hearing,

meeting all due process requirements.

Parratt v. Taylor, 451 U.S. 527 (1981).

As the Seventh Circuit said in

Devines II: “(T]he City['s] ... initial

determination of uninhabitability ...

[is] neither final nor binding upon the

affected parties and, in effect, serve as

nothing more than a starting point for a

hearing process that culminates ina full

judicial inquiry into the matter. ..."

(A-P. p. 120)

The petitioners then go on to totally

mischaracterize the reasons behind the

City's placarding actions. They speculate

that: “By summarily ordering petitioners

to vacate their rented homes, the City

seeks to force their landlords to comply

with the city's code by depriving those

owners of some part of their rent

« © &» o @©« (PatEition, p. 9)

The petitioners' assertion could not

be further from the truth. Mr. Alex P.

LeGrand, the City's Building Inspector

through September, 1978, stated that the

basis for an order to vacate is"...

the seriousness of .. . the [code]

infractions which have a direct impact

upon the health and safety of the people

[i.e., the building occupants or invitees]

— = = « 8s 728 at § 6, Ter. p. 16)

Without the basic assumption that building

conditions would cause an immediate threat

to the physical safety of tenants

occupying the building, there would be no

Order to vacate. (R. 72B at q 6, Tr. p.

22) The petitioners themselves must have

recognized the inherent danger in dwelling

in their rented units because in their

complaint (R. 1), none of them contested

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the fact that the buildings were

uninhabitable.

The petitioners' statement at pp. 10-

ll of their Petition concerning the

procedural progression of the case is in

the main correct. Omitted is the fact

that in Devines I, the first Seventh

Circuit Court panel did uphold the

District Court's dismissal of the

petitioners' claims under the Uniform

Relocation Act ("URA"), 42 U.S.C. § 4601

et seq. (A-P. p. 147). However, the court

in Devines I curiously found that

petitioners had a cause of action under

the Wisconsin Relocation Act, sec. 32.19,

Wis. Stats., even though that act

parallels the URA. Because the City

acquired no interest in the petitioners'

property by its placarding action, a state

relocation claim should also have been

denied under the same rationale which

Supported the denial of the URA claim.

(A-P. pp. 148-9). Alexander v. United

States Dept. of Housing & Urban

Development, 441 U.S. 39 (1979).

An even more glaring omission from

the petitioners' characterization of

Devines I is the lack of any reference to

Judge Thomas Fairchild's concurring

opinion; for it was in that concurring

opinion that the seeds for Devines II were

sown.

In his concurrence, Judge Fairchild

observed that: “Where the evidence of

uninhabitability is so overwhelming that

no reasonable person could conclude to the

contrary the mere adjudication of that

status by the state does not require

compensation.” (A-P. p. 150)

Therefore, Judge Fairchild recognized

early on that there could be reasonable

limitations attaching to the permanent

retention of the right to occupy a

dwelling unit and that one of those

gests ney mente ch to ota eect =

re ee OR Ph ae ena aed

A) Absa be ed _. et ee eee

on nd ee ae

a wehat be ar tr'5

reasonable limitations was the unit's

habitability. Judge Fairchild's only

concern seems to have been with whether or

not the evidence of uninhabitability was

"overwhelming". In Devines II, the

Seventh Circuit addressed that issue when

it concluded that there were adequate due

process mechanisms available to a tenant

to challenge the City's initial

determination of uninhabitability. (A-P.

p. 120)

The petitioners then launch into a

complete mischaracterization of the

Seventh Circuit's decision in Devines

II. This was not just a decision by a

different Seventh Circuit Court panel. It

was a decision, which prior to issuance,

had been circulated to all judges of the

Seventh Circuit in regular service. (A-P.

p. 102)

Petitioners also misstate the key

premise of the intervening case of Texaco

v. Short, 454 U.S. 516 (1982), upon which

the Seventh Circuit relied in overturning

Devines I. Texaco v. Short did not

absolve the City from the requirement to

pay "just compensation" simply because the

petitioners’ loss of their property

interest was not the City's fault.

(Although it is correct to state that the

City was not responsible for a unit's

uninhabitability.) The primary teaching

of Texaco, upon which the Seventh Circuit

relied in Devines II, was that the state,

which has the power to create a property

interest, also has the power"... to

condition the permanent retention of that

property right on the performance of

reasonable conditions. ...”" 545 U.S. at

526. The Seventh Circuit followed this

Court's pronouncements in Texaco (A-P. p.

113) and concluded that the Wisconsin

-10-

Statutes and Milwaukee Ordinances

conditioned a renter's property interest

in his rental unit upon"... the

reasonable conditions that the premises

remained fit for human habitation during

the tenant's period of exclusive

possession.” (A-P. p. 113)

Therefore, contrary to the

petitioners’ assertion, this case presents

a question of constitutional law which has

already been clearly and adequately

addressed by this Court, i.e., that a

state, in creating a property right, may

condition the continued retention of that

property right upon the performance of

certain reasonable conditions. Hence,

this case does not merit further review by

this Court.

-ll-

THE WRIT SHOULD NOT ISSUE

BECAUSE DEVINES II IS IN

ACCORDANCE WITH PRIOR

HOLDINGS OF THIS COURT.

NATURE OF TENANT'S PROPERTY RIGHT

The petitioners, while characterizing

their interest in a leasehold as a

property right (a generalization with

which the respondents would agree), have

failed to detail the exact nature of that

right as it exists under Wisconsin law.

When such an analysis is undertaken

it soon becomes evident why the

petitioners could not have harbored any

reasonable expectations2 of a continued

right to occupy a dwelling unit which had

become uninhabitable.

——

1 penn Central Transportation Co. v. New

York City, 438 U.S. 104, (1978).

o12=

The property rights of tenants in

their leasehold premises are created and

to some extent defined under Chapter 704,

Wis. Stats. Section 704.05(3), Wis.

Stats., provides in part that: "The

tenant cannot use the premises for any

unlawful purpose. ..." The term

"unlawful purpose" is not otherwise

defined in that statutory section. The

duty of repair and restoration to the

premises damaged by tenant conduct is also

imposed upon tenants pursuant to sec.

704.07(3) (a), Wis. Stats.

The state also specifically limits

the value of a property interest in an

uninhabitable or untenable rental unit.

Pursuant to sec. 703.07(4), Wis. Stats.,

-13-

an untenable unit may be in effect

worthless* if the tenant chooses to remove

from the unit.

Thus, while the property interest of

a tenant in a leasehold premises is

created under Chapter 704, Wis. Stats.,

that statutory section also imposes

certain limitations on the uses to which

the tenant can put his leasehold, and

imposes certain maintenance obligations

upon the tenant. That statutory chapter

also recognizes a diminution or complete

destruction in the rental unit's value if

it becomes untenable. Therefore, it is

clear there are statutorily imposed

conditions which attach to both the

tenant's continued retention of his

property rights in a leasehold estate and

2 the worthless nature of a renter's

interest in an uninhabitable dwelling unit

was discussed in detail at pp. 34-37 of

respondents' initial brief filed in

Devines ITI.

-14-

to the value of his property interest.

Certain of those statutory conditions come

into play in the facts underlying this

Litigation.

Under sec. 66.05(1) (a), Wis. Stats.,

the continued retention of a property

interest in a dwelling unit is conditioned

upon that dwelling unit not being"...

so old, dilapidated or .. . so out of

repair as to be dangerous, unsafe,

unsanitary or otherwise unfit for human

habitation. ..." If any person (i.e.,

fee owner, tenant or other frequenter or

guest) occupies a building which has been

determined by the City's Department of

Building Inspection and Safety Engineering

to be so old, dilapidated or out of repair

as to be dangerous, unsafe, unsanitary or

Otherwise unfit for human habitation, that

person would be subject to a forfeiture

action under sec. 66.05(1)(c), Wis.

Stats. In essence, continued occupancy of

-15-

such a dwelling unit by a tenant would

constitute a use for an “unlawful

purpose,” thereby failing to meet one of

the essential conditions attaching to the

permanent retention of that property

right. Section 704.05(3), Wis. Stats.

Pursuant to sec. 62.17, Wis. Stats.,

the State of Wisconsin, acting through the

agency of its various municipalities, has

also placed other conditions, i.e.,

through enactment of local building codes,

upon the right, of both the tenants or

landlords, to continued occupancy in any

dwelling unit. In Milwaukee's case, these

conditions are found in Chapters 12 and

51, MCO.

The rather specific circumstances

which would form the basis of a

determination by the Department of

Building Inspection and Safety Engineering

to initiate a placard action under sec.

12-3(6), MCO are set forth in secs. 12-

-16-

3(3), (4) and (5), MCO. Pailure to vacate

the premises in accordance with the

placard notice would subject any person,

i.@., Owner, tenant or frequenter, to a

forfeiture action under sec. 12-14, MCO.

Section 12-15 parcels out, as between

a landlord and a tenant, the

responsibility for making repairs to

premises. This parallels secs. 704.07 (2)

and (3), Wis. Stats. Both the ordinance

and the statute make it clear that if a

code violation is the result of a tenant's

negligence or improper use of the

premises, that the tenant, and not the

landlord, is responsible for the needed

repairs. Hence, a rather interesting and

troubling circumstance is established

whereby a tenant can be the cause of a

code violation leading to a placard

action, be responsible for the correction

of that violation, but also be the

beneficiary of his own illegal acts if the

«]J~

City is forced to pay the tenant any form

of just compensation as a result of the

placarding action.

Complementing the building code

provisions of Chapter 12, MCO, is Chapter

51, MCO, which establishes various

detailed maintenance criteria which must

be met in order to continue occupancy of

any building in the City of Milwaukee.

(Secs. 51-30 to 51-82, MCO) Failure to

meet these criteria can lead to the

issuance of an order by the Department of

Building Inspection and Safety

Engineering. Any person, including a

tenant, affected by such an order can

appeal the order, pursuant to sec. 12-1l,

MCO, to the Building Maintenance Code

Enforcement and Appeals Board pursuant to

sec. 12-11, MCO.

-18-

Under the criteria established by

sec. 12-3(5), MCO, violations of the

Chapter 51 housing standards can lead to a

placarding action pursuant to which the

building is condemned as unfit for human

habitation. Failure to comply with a sec.

12-3(5), MCO condemnation order again

subjects the owner or tenant to a sec. la-

14 forfeiture action which can be

contested.

From the above analysis, it is clear

that while Wisconsin law does create a

property right for a leasehold interest in

a dwelling unit, the state has also

conditioned the right to continue

occupancy of that unit upon the

performance of certain express property

maintenance duties, duties which run to

both the landlord and the tenant.

-19-

NO REASONABLE EXPECTATIONS

OF CONTINUED OCCUPANCY

IN UNINHABITABLE

DWELLING UNIT.

In Penn Central Transportation Co. v.

New York City, 438 U.S. 104, 124 (1978),

this Court stressed that it had in the

past dismissed taking challenges, " . »

on the ground that, while the challenged

governmental action caused economic harm,

it did not interfere with interests that

were sufficiently bound up with the

reasonable expectations of the claimant to

constitute ‘property’. .. ." Given the

statutory nature of the tenant's property

right in the occupancy of a rented

dwelling unit, tenants in Wisconsin cannot

be said to have any reasonable

expectations of a right to continued

occupancy if their residence is determined

uninhabitable. A mere unilateral

expectation is not a property interest

-20-

entitled to protection. Webb's Fabulous

Pharmacies v. Beckwith, 449 U.S. 155, 161

(1980).

This Court in Penn Central went on to

further observe that when traditional

police power concerns of health, safety

and morals or general welfare are

involved, that land use regulations which

have " .. . destroyed or adversely

affected recognized real property

interests” have survived taking

challenges. 438 U.S. at 125. Also see

Miller v. Schoene, 276 U.S. 272 (1928) and

Mugler v. Kansas, 123 U.S. 623 (1887).

This is especially true in the area of the

regulation of housing conditions in

general and the landlord-tenant

relationship in particular. Loretto v.

Teleprompter Manhattan CATV Corp., 458

U.S. 419, 440 (1982).

o2le

The Mugler case makes the following

important distinction between when a

police power act may constitute a

constitutional taking and when such an act

would clearly not constitute a taking.

Specifically this Court stated that:

A prohibition simply upon the use of

property for purposes that are

declared, by valid legislation, to be

injurious to health, morals or safety

of the community, cannot, in any just

sense, be deemed a taking or an

appropriation of property for the

public benefit. Such legislation does

not disturb the owner in the control

or use of his property for lawful

purposes, nor restrict his right to

dispose of it, but it is only a

declaration by the State that its use

by anyone, for certain forbidden

purposes, is prejudicial to the public

interests. (Emphasis added.) 123

U.S. at 668.

The Mugler Court went on to

distinguish the situation in which just

compensation might be required as a result

of the use of the police power:

=2%o

The exercise of the police power by

the destruction of property which is

itself a public nuisance, or the

prohibition of its use in a particular

way, whereby its value becomes

depreciated, is very different from

taking property for public use, or

from depriving a person of his

property without due process of law.

In one case, a nuisance only is

abated; in the other, unoffending

property is taken away from an

innocent owner. 123 U.S. at 669.

Placarding uninhabitable dwelling

units is a police power exercise which

results in the destruction, or at least

the limitation in use, (n.b., tenants must

vacate only while their building remains

uninhabitable), of a piece of property

which has become a public nuisance. It is

not the destruction or the removal of a

primary expectation which the petitioners

can said to have had with respect to the

use of their property. The law in

Wisconsin is simply too clear on the issue

of an individual's inability to continue

to occupy an uninhabitable dwelling unit.

-23-

Therefore, if the petitioners had no

reasonable expectation of an ability to

continue to occupy an uninhabitable

dwelling unit, even the total destruction

of any unreasonable hopes which they may

have held is not a taking requiring just

compensation.

4 Ce

HABITABILITY IS A REASONABLE

CONDITION ATTACHING TO THE

RETENTION OF THE RIGHT TO

LIVE IN A DWELLING UNIT.

Since it is undisputed that Wisconsin

Statutes and the MCO inform anyone and

everyone that they can have no reasonable

expectation of a continued right to dwell

in an uninhabitable structure, the

3 See Price v. City of Junction, Texas,

711 F.2d 582, 591 (Sth ise 1983) in which

the Pifth Circuit applied the Penn Central

test of reasonable investment backed

expectations to inoperable junked vehicles

which were destroyed pursuant to a

municipal ordinance and found that owners

of those vehicles did not have reasonable

investment backed expectations in the

continued possession of such vehicles.

=24-

question which arises and which Devines II

addressed is whether, in light of Texaco

v. Short, 454 U.S. 516 (1982), the

habitability limitations imposed by state

and local law are reasonable conditions

placed upon the permanent retention of a

tenant's property right.

This Court addressed the same issue

in Penn Central when it noted that:

- « « a use restriction on real property

may constitute a ‘taking’ if not

reasonably necessary to the effectuation

of a substantial public purpose. ..."”

438 U.S. at 127.

Therefore, while government

admittedly does not have unlimited power

to redefine property rights* nor the right

to by regulation convert property to its

4 Loretto v. Teleprompter, 458 U.S. 419,

439 (1982).

o%G—

own use?, it does have the right to place

reasonable conditions on the continued

retention of a property right and view the

failure to meet those conditions as an

abandonment of the property interest.

In addressing the issue presented by

Texaco, the petitioners attempt to stress

that the burden of the condition imposed

upon the owner of the property right must

be “relatively slight" in order to avoid

the requirement of paying just

compensation.

It is submitted that this

characterization misinterprets Texaco.

What this Court in Texaco and the Seventh

Circuit in Devines II were concerned with

was whether or not the conditions

attaching to the permanent retention of

5 Webb's Fabulous Pharmacies v. Beckwith,

449 U.S. 155, 164 (n.b., no police power

justification was offered for the taking

in Webb's, 449 U.S. at 163).

-26-

the property right were reasonable. 454

U.S. at 526.

It must be remembered that the

property rights in Texaco were valuable

subsoil mineral rights and therefore it

could reasonably be expected that the

conditions attaching to their permanent

retention would and should be slight. The

state snould not be in a position to

easily deprive owners of such valuable

rights. However, the supposed property

rights involved here are admitted public

nuisances, having little or no value, and

any right to continue to retain them

should reasonably be conditioned upon the

abatement of the nuisance.

Moreover, the public interest served

in Texaco, i.e., to clear up uncertainties

in titles to property in order to promote

land development, is only slight compared

to the substantial public interest in

preventing the occupancy of structures

o2%«

which constitute a danger to public health

and safety. Hence, the reasonableness of

the governmental conditions must also be

determined in light of the importance of

the public interest served. Penn Central

v. New York City, 438 U.S. at 127.

The Seventh Circuit in Devines II

made the required Texaco and Penn Central

analysis and found that uninhabitability

was a reasonable condition to place on the

right to continued occupancy of a dwelling

unit, i.e., it was a condition reasonably

necessary to the effectuation of a

substantial public purpose. The Seventh

Circuit reasoned that:

By declaring a dwelling uninhabitable

and issuing an order to temporarily

vacate, the City of Milwaukee is

performing its regulatory duty to

protect the health, safety, morals and

general welfare of the public.

Considering "the character of the

action and .. . the nature and extent

of the interference with rights," Penn

Central Transportation Co. v. New York

City, 438 U.S. at 130-31, 98 S.Ct. at

2662-63 it is a manifest injustice and

contrary to the best interests of

~28-

society to penalize the City of

Milwaukee for properly enforcing its

building code, designed in part, to

reduce the incidence of substandard

housing. (A-P. p. 121-22)

Hence, the Seventh Circuit made the

required weighing of public and private

interest® before determining whether a

compensable taking had occurred.

The court's decision in Devines II

was also consistent with prior holdings of

this Court in which it was determined that

governmental activity limiting the use or

even destroying property, which poses a

danger to health and safety, was not a

taking requiring just compensation under

the Fifth Amendment. Such property has

often itself been considered the offender

to the public good. Calero-Toledo v.

Pearson Yacht Leasing Co., 416 U.S. 663

(1974); Miller v. Schoene, 276 U.S. 272

(1928).

6 Agins v. Tiburon, 447 U.S. 255, 261

(1980).

=29-

The petitioners, in fact, never

challenge the reasonableness of

conditioning continued occupancy in the

dwelling unit upon the habitability of the

unit. (Petition, p. 21) In effect, their

only contention is that the City should

have to pay for the right to enforce this

admittedly reasonable health and safety

restriction on the use of property. / The

consequences of such an approach are

Clearly and catastrophically evident.

Having to regulate such a basic health and

safety issue by purchase® would place an

undue burden on the already overtaxed

resources of every United States

municipality and would place in jeopardy

the adequacy of enforcing and implementing

7 A state has broad power to impose

appropriate restriction upon an owner's

use of his property. Loretto v.

Teleprompter, 458 U.S. at 441.

8 andrus v. Allard, 444 U.S. 51, 65

(1979).

such an essential health and safety

regulation.

As this Court said in Andrus v.

Allard:

To require compensation in all...

circumstances would effectively compel

the government to regulate by

purchase. "Government hardly could go

on if to some extent the values

incident to property could not be

diminished without paying for every

change in the general law."

The Takings Clause, therefore,

preserves governmental power to

regulate, subject only to the dictates

of “justice and fairness." 444 U.S.

at 65.

Forbidding the occupancy of

uninhabitable dwelling units meets the

"dictates of justice and fairness" and

constitutes part of the price that all

must pay for " .. . the advantage of

living . .. in a civilized community."

Andrus v. Allard, 444 U.S. at 67.

Finally, the enforcement of this

condition on a tenant's leasehold is not

limited to the City as petitioners

=3le

contend. Petitioners themselves have the

right to a diminution in rent or a

complete release from their rental

obligation if their dwelling unit becomes

untenable. Section 704.07(4), Wis.

Stats. Thus, without any intervention

from the City's Building Inspector,

tenants can also enforce this reasonable

restriction on their leasehold. Hence,

the petitioners are incorrect when they

state: "No matter what the condition of a

residential unit in Milwauke2 in fact is,

it is not uninhabitable until the City

says it is." (Petition, p. 18) In making

this assertion the petitioners rely upon

the case of Posnanski v. Hood, 46 Wis. 2d

172, 174 N.W.2d 528 (1970). However, a

close reading of Posnanski reveals that

the tenant's attorney failed to plead as

an affirmative defense the provisions of

sec. 234.17, Wis. Stats., [now sec.

704.07(4), Wis. Stats.]. 46 Wis. 2d at

o$2=

176-77. Had that section been pled as a

defense, the tenant, without any

intervention from the Building Inspector,

could unquestionably have introduced

evidence as to his unit's untenability

(i.e., uninhabitability), thereby either

negating or greatly reducing his rental

obligation.

Therefore, uninhabitability is a

basic and reasonable limitation upon a

leasehold property right in Wisconsin; and

it is a limitation which can be enforced

either by the tenant or by the City as the

representative of the societal interest in

insuring that the housing stock remains in

a habitable state.

CONCLUSION

Based upon the above, it is

respectfully submitted that the Seventh

Circuit correctly applied past holdings of

this Court in its decision in Devines II

=%$3o

and therefore certiorari should not issue

to review that decision.

Respectfully submitted,

GRANT F. LANGLEY

City Attorney

PATRICK B. MCDONNELL

Assistant City Attorney

Attorney for Respondents

P.O. ADDRESS:

800 City Hall

200 East Wells Street

Milwaukee, Wisconsin 53202

Telephone: (414) 278-2601 July 25, 1984

EDITOR'S NOTE

Pagination does not follow in

numerical order. There are

no pages missing.

100

INDEX TO APPENDIX

Page

Bee. FOE.9S— WiGe BSCACBccccccecesss 101-104

Sec. 12-3(3) (4) (5) & (6), MCO......105-108

SeC. L2-11(3), MCO. cc cccccccccccces 109-111

SOC. 12-14, MEO. wc cccccccccccccccccces ~-112

SEC. 12-15, MCO. .cccccccccccccccees 113-116

Secs. 51-30 to 51-82, MCO.......... 117-152

101

704.05 Rights and duties of landlord and

tenant in absence of written agreement to

contrary. (1) WHEN SECTION APPLICABLE.

So far as applicable, this section governs

the rights and duties of the landlord and

tenant in the absence of any inconsistent

provision in writing signed by both the

landlord and the tenant. This section

applies to any tenancy.

(2) POSSESSION OF TENANT AND ACCESS BY

LANDLORD. Until the expiration date

specified in the lease, or the termination

of a periodic tenancy or tenancy at will,

and so long as the tenant is not in

default, the tenant has the right to

exclusive possession of the premises,

except as hereafter provided. The

landlord may upon advance notice and at

reasonable times inspect the premises,

make repairs and show the premices to

prospective tenants or purchasers; and if

the tenant is absent from the premises and

the landlord reasonably believes that

entry is necessary to preserve or protect

the premises, the landlord may enter

without notice and with such force as

appears necessary.

(3) USE OF PREMISES, ADDITIONS OR

ALTERATIONS BY TENANT. The tenant can

make no physical changes in the nature of

the premises, including decorating,

removing, altering or adding to the

structures thereon, without prior consent

of the landlord. The tenant cannot use

the premises for any unlawful purpose nor

in such manner as to interfere

unreasonably with use by another occupant

of the same building or group of

buildings.

————e

102

(4) TENANT'S FIXTURES. At the

termination of the tenancy, the tenant may

remove any fixtures installed by him if he

either restores the premises to their

condition prior to the installation or

pays to the landlord the cost of such

restoration. Where such fixtures were

installed to replace similar fixtures

which were part of the premises at the

time of the commencement of the tenancy,

and the original fixtures cannot be

restored the tenant may remove fixtures

installed by him only if he replaces them

with fixtures at least comparable in

condition and value to the original ‘

fixtures. The tenant's right to remove

fixtures is not lost by an extension or

renewal of a lease without reservation of

such right to remove. This subsection

applies to any fixtures added by the

tenant for his convenience as well as

those added for purposes of trade,

agriculture or business; but this

subsection does not govern the rights of

parties other than the landlord and

tenant.

(5) STORAGE OR DISPOSITION OF

PERSONALTY LEFT BY TENANT. (a) Storage,

sale or disposition of personalty less

than $100 in value. If a tenant removes

from the premises and leaves personal

property of an apparent total value of

less than $100, the landlord may:

1. Store such personalty, .with or

without notice to the tenant, on or off

the premises, with a lien on the

personalty for actual cost of removal and

storage or, if stored by the landlord, for

the reasonable value of storage;

2. Give the tenant notice, personally

or by ordinary mail addressed to the

tenant at his last-known address, of the

landlord's intent to dispose of the

personalty by sale or other appropriate

means if the property is not repossessed

by the tenant within 5 days of such

personal service or 8 days of the date of

mailing. If the tenant fails to repossess

within the time specified, the landlord

may proceed to dispose of such property by

private or public sale or any other

appropriate means. The landlord may

deduct from the proceeds of sale any costs

of sale and any storage charges if he has

first stored the personalty under subd. l,

and send the balance of the proceeds to

the tenant by registered mail addressed to

his last-known address; if such proceeds

are returned to the landlord and are not

claimed within 6 months after the date on

which the tenant vacated the premises, the

proceeds belong to the landlord.

(b) Storage of personalty $100 or more

in value. If a tenant removes from the

premises and leaves personal property of

an apparent total value of $100 or more,

the landlord may store such personal

property, with or without notice to the

tenant, on or off the premises; in such

case the landlord has a lien on the

property for the actual cost of removal

and storage or, if stored by the landlord,

for the reasonable value of such

storage. This lien can be foreclosed by

sale of the property substantially in

conformity with s. 409.504, and the

landlord shall have the rights and duties

of a secured party thereunder. When s.

409.504 is applied to the enforcement of

this lien, the word debtor or equivalent,

when used therein, shall be deemed to

104

refer to the tenant and any other person

having an interest shown by instrument

filed as required by law or shown in the

records of the department of

transportation, and the word

"indebtedness" or equivalent shall include

all claims of the landlord for removal,

storage, disposition, arranging for the

Sale and reasonable attorney's fees and

legal expenses.

landlord's lien and power to dispose as

provided by this subsection apply to any

property left on the premises by the

tenant, whether owned by him or by

Others. Such lien has priority over any

ownership or security interest and the

power to dispose under this subsection

applies notwithstanding rights of others

existing under any claim of ownership or

security interest. If the landlord

proceeds under par. (a) 2, notice of

intended disposition need be given only to

the tenant; if the landlord proceeds under

par. (b), notice of intended disposition

shall be given as required by s.

409.504. In either event, the tenant or

any secured party shall have the right to

redeem the property at any time before the

landlord has disposed of it or entered

into a contract for its disposition by

payment of the landlord's charges for

removal, storage, disposition, arranging

for the sale and reasonable attorney's

fees and legal expenses.

(d) Other procedure. The remedies of

this subsection are not exclusive and

shall not prevent the landlord from

resorting to any other available judicial

procedure.

12-3.

(3)

105

Enforcement.

ILLEGAL OCCUPANCY AND USE;

NONCONFORMING EQUIPMENT.

Whenever any existing building,

structure, premises, or

equipment, or portions thereof,

has been erected, or constructed,

or is being occupied or used in

violation of any regulation of

this code, or of the terms of the

permit, or of Section 12-2, the

Commissioner of Building

Inspection shall serve a written

Order on the owner of the

premises, and on the person using

Or causing such illegal occupancy

and use to discontinue such

occupancy and use within not more

than thirty (30) days, and the

owner of the premises and the

person using or causing such

illegal occupancy and use shall

vacate such building, structure,

premises, or equipment, or

portions thereof, within the time

aforesaid. In all cases

involving public safety, such

occupancies and use shall be

ordered discontinued at once.

Such building, structure,

premises, or equipment,

thereafter shall not again be

used or occupied until all of the

regulations of this code, the

terms of the permit, and of

Sections 12-2, applicable

thereto, are complied with.

Until the provisions of this

paragraph are complied with, no

(4)

106

further permits of any kind shall

be issued for any alterations or

additions to, or occupancy and

use of such buildings,

structures, and equipment, other

than a permit to institute full

compliance with the requirements

of this paragraph.

UNSAFE BUILDINGS, STRUCTURES, OR

EQUIPMENT. Whenever the

Commissioner of Building

Inspection shall find any

building, structure, or

equipment, or any part thereof,

in an unsafe condition because of

the insufficiency of stairs,

exits, or structural strength

thereof, or in danger from fire,

due to defects in construction,

Or because of deterioration,

removal of any appliance, device,

Or equipment required by this

code, or because of the hazardous

manner in which it is used, or

because of any other defects

endangering life, limb or

property, or because of illegal

occupancy or use of any building

Or structure, he shall serve a

written order on the owner of the

premises and the persons

occupying or using any such

building, structure, equipment or

premises to discontinue such

occupancy or use at once, or as

ordered, and thereafter until

such defects have been corrected

in accordance with the

regulations of this code.

107

(S) DWELLING UNITS CONDEMNED AS UNFIT

FOR HUMAN HABITATION.

(a) The Commissioner of Building

Inspection shall condemn as

unfit for human habitation

any dwelling or dwelling unit

wherein he finds any of the

following defects:

1. One which is so damaged,

decayed, dilapidated,

insanitary, difficult to

heat, unsafe, or vermin

infested, that it creates

a hazard to the safety or

welfare of the occupants

or the public; or

2. One which lacks

illumination,

ventilation, or sanitary

facilities adequate to

protect the safety or

welfare of the occupants

or the public; or

3. One which, because of its

general condition or

location is insanitary or

otherwise dangerous to

the safety or welfare of

the occupants or of the

public.

(b) Any dwelling or dwelling unit

may be condemned as unfit for

human habitation by the

Commissioner of Building

Inspection if the owner or

occupant failed to comply

with any order based on the

provisions of this code or

108

any rules or regulations

adopted pursuant CheLreto

provided that such dwelling

Or dwelling unit is, in the

opinion of the Commissioner,

unfit for human habitation by

reason of such failure to

comply.

(6) PLACARDING OF BUILDINGS,

STROCTURES, OR EQUIPMENT.

(a) In all cases regulated in

Section 12-2(2), (3), (4),

and (5), the Commissioner of

Building Inspection shall

post at each entrance to such

building, structure, or

equipment, a notice to the

effect that said building,

structure, or equipment, is

unsafe or unfit for human

habitation and has been

condemned; or that this

building or structure is

illegally occupied or used

and shall be vacated at once

as ordered.

(b) Such notice shall remain

posted until the required

repairs or alterations are

made and it shall be unlawful

for any person to remove such

notice without written

permission from the

Commissioner of Building

Inspection and it shall

further be unlawful for any

person tc occupy or use or

enter such building or

structure thereafter, except

for the purpose of making the

required repairs or

alterations.

12-11.

109

Building Maintenance Code

Enforcement and Appeals Board; The

Right to Appeal.

x ke

(3) PETITION FOR HEARINGS, ETC.

(a)

(b)

Request.

Any person affected by any

notice which has been

issued in connection with

the enforcement of any

provision of this chapter,

or of any rule or

regulation adopted

pursuant thereto may

request and shall be

granted a hearing on the

matter before the Board;

provided, that such person

shall file in the office

of the Board a written

petition requesting such

hearings and setting forth

a statement of the grounds

therefor within twenty

(20) days after the day

the notice was served.

Board to Set Date.

Within ten (10) days of

receipt of such petition

the Board shall set a time

and place for such hearing

and shall give the

petitioner written notice

thereof. At such heariuag

the petitioner shall be

given an opportunity to be

heard and to show cause

why such notice should be

modified or withdrawn.

The hearing before the

Board shall be commenced

not later than thirty (30)

days after the date on

which the petition was

filed; provided, that upon

written application of the

petitioner to the Board,

the Board may postpone the

date of the hearing for a

reasonable time beyond

such thirty (30) day

period, if in its judgment

the petitioner has

submitted a good and

sufficient reason for such

postponement. Any notice

served pursuant to Section

12-4(3) of this chapter

shall automatically become

an order if a written

petition for hearing is

not filed in the office of

the Board within twenty

(29) days after such

notice is served. Any

license which has been

suspended by a notice

shall be deemed to be

automatically revoked if a

petition for hearing is

not filed in the office of

the Board within twenty

(20) days after such

notice is served. The

Board shall have the power

to administer oaths and

affirmations in connection

with the conduction of any

hearing held in accordance

(c)

111

with the provisions of

this chapter.

Notification of the

Hearing.

If the complainant is

known relative to any

building code violation

for which an appeal is

taken to the Building

Maintenance Code

Enforcement and Appeals

Board, that complainant

shall be notified by first

class U.S. Mail of the

time and place of the

hearing on that appeal.

That notice shall state

that the complainant may

but is not required to

attend this hearing and

make his position known.

The notice shall be mailed

at least five (5) calendar

days preceding the date

set for the hearing; the

day of the hearing is to

be included in computing

the five-day period.

Pailure of the complainant

to receive the notice or

failure of the notice

being sent shall not

affect the validity or any

proceeding held or action

taken by the Building

Maintenance Code

Enforcement and Appeals

Board.

12-14.

112

Penalties

Any person, being the owner, or

controlling or managing any

building or premises or tenant

thereof, wherein or whereon there

shall be placed or there exists

anything in violation of any of

the regulations of this code (see

also Sections 12-2, 12-3, and 12-

4); or who shall build contrary to -

the plans or specifications

submitted to and approved by the

Commissioner of Building

Inspection; or who shall omit,

neglect, or refuse to do any act

required in this code, except

where special penalty is provided,

shall be subject to a fine of not

less than twenty-five dollars

($25) nor more than five hundred

dollars ($500), together with the

cost of the action, and in default

of payment thereof to imprisonment

in the house of correction or

county jail of Milwaukee County,

for a period of not less than two

days nor more than six months, or

until such fine and cost shall be

paid; and every person shall be

deemed guilty of a separate

offense for each day such

violation, disobedience, omission,

neglect, or refusal shall

continue, provided, however, that

said accumulated penalties

recoverable in any one action

shall not exceed the sum of two

thousand dollars ($2,000).

12-15.

Landlord-Tenant Relations,

Evictions, False Information and

Penalties.

(1)

LANDLORD-TENANT RELATIONS.

This section applies to any

tenancy, except as noted in

Section 12-16, where there

is no contrary provision in

writing signed by both

parties. Nothing in this

section is intended to

affect rights and duties

under other provisions of

the code.

(a)

Duty of Landlord.

1. Unless the repair

was made necessary by

the negligence or

improper use of the

premises by the tenant,

the landlord is under

duty to:

a. Keep in reasonable

state of repair

portions of the

premises over which he

maintains control;

b. Keep in a

reasonable state of

repair all equipment

under his control

necessary to supply

services which he has

expressly or impliedly

agreed to furnish to

the tenant, such as

heat, water, elevator

or air conditioning;

(b)

Cc. Make all necessary

structural repairs;

d. Repair or replace

any plumbing,

electrical wiring,

machinery or equipment

furnished with the

premises and no longer

in reasonable working

condition, except as

provided in subsection

(1) (b)2. below.

2. If the premises are

part of a building,

other parts of which

are occupied by one or

more tenants,

negligence or use by

one tenant does not

relieve the landlord

from his duty as to the

other tenants to make

repairs as provided in

subsection (1) (a)l.

above.

Duty of Tenant.

1. If the premises are

damaged by the

negligence or improper

use of the premises by

the tenant, the tenant

must repair the damage

and restore the

appearance of the

premises by

redecorating. However,

the landlord may elect

to undertake the repair

or redecoration, and in

(2)

115

such case the tenant

must reimburse the

landlord for reasonable

cost thereof; the cost

to the landlord is

presumed reasonable

unless proved otherwise

by the tenant.

2. The tenant is also

under a duty to keep

plumbing, electrical

wiring, machinery and

equipment furnished

with the premises in

reasonable working

order if repair can be

made at cost which is

minor in relation to

rent.

EVICTIONS, etc.

No lessor of commercial or

residential property shall

take retaliatory action

toward any lessee who

reports building code

violations existing on or

about the premises by

raising rents unreasonably,

or by curtailing of

services, or by eviction.

It shall be a rebuttable

presumption that any attempt

by the lessor to intitiate

any of the aforesaid actions

within two (2) months of

notification of said

violations to the

Commissioner of Building

Inspection is in violation

of this section, except that

(3)

(4)

nonpayment of rent or

commission of waste upon the

premises by the lessee shall

be a basis for eviction.

FALSE INFORMATION.

It shall be unlawful for any

landlord, tenant, or any

other individual to submit

false information to the

Commissioner of Building

Inspection relative to code

violations supposedly

existing on or about any

premises in the city of

Milwaukee.

PENALTIES.

Any person violating any of

the provisions of this

section of the code shall be

subject to penalties as set

forth in Section 12-14.

51-30.

Maintenance of Structures,

Premises, and Accessory Buildings.

(1) SCOPE.

(2)

(3)

The provisions of this section

shall govern the minimum

conditions for maintenance of

structures, premises and

accessory buildings; the

structures, premises, and

accessory buildings shall

comply with the conditions

herein prescribed insofar as

they are applicable. (BOCA

300.1).

RESPONSIBILITY.

No person shall occupy as

Owner-occupant, or let to

another for occupancy, any

structure, dwelling, dwelling

unit, or portion thereof, for

the purpose of occupancy

therein which does not comply

with the following

requirements of this code.

(BOCA 300.2).

MAINTENANCE OF VACANT

STRUCTURES AND LAND.

(a) Clean and Sanitary.

All vacant dwelling units,

dwelling structures,

principal buildings,

accessory buildings, and

yards connected thereto

shall be maintained in a

clean, safe, and sanitary

condition.

(b) Exteriors Maintained.

(c)

The exteriors of the

vacant structures must be

mantained in the same

manner as if they were

occupied so as not to

cause a blighting effect

on the neighborhood.

Closed; Sanitary.

Owner's Responsibility.

The owners shall have the

responsibility for

maintaining all vacant

dwelling units, dwelling

structures, principal

buildings, accessory

buildings, and yards:

a. Free from rubbish or

debris or material which

might constitute a fire

hazard;

b. Free from rodents or

vermin or all food or

other material which may

attract rodents or vermin;

c. All such structures

except accessory buildings

shall be kept in a locked

or closed condition so

that they cannot be

entered without an

unlawful break-in.

119

Notice; Assessment.

If, after reasonable

notice, the owner fails to

maintain the property in a

closed condition or free

of material which can

constitute a fire hazard

Or an attraction for

rodents or vermin, the

Commissioner of Building

Inspection may request the

Department of Public Works

either by city personnel

Or by contract to correct

the situation and charge

the cost thereof upon the

tax rolls of the

property. If, after

reasonable notice, the

owner fails to keep the

property free from rodents

Or vermin, the

Commissioner of Building

Inspection may request the

Health Department either

by city personnel or by

contract to correct the

situation and charge the

cost there upon the tax

rolls of the property.

120

51-31. Premises Condition.

(1) SANITATION.

All exterior property areas

and premises shall be maintained in a

clean, safe and sanitary condition free

from any accumulation of rubbish or

garbage. (BOCA 301.1).

(a) Pacilities.

1. Rubbish Storage

Facilities.

Every multiple

dwelling and every dwelling unit located

on the premises shall be supplied with

adequate rubbish storage facilities whose

type and location are approved.

2. Garbage Storage or

Disposal Facilities.

Every multiple

dwelling and every dwelling unit located

on the premises shall be supplied with

adequate garbage disposal facilities or

garbage storage containers whose type and

location are approved. In addition, the

provisions of Section 79-4 shall apply to

the use of said containers.

3. Adequate Garbage and

Rubbish Storage Facilities.

The owner of every

dwelling unit shall furnish each dwelling

unit with adequate garbage and rubbish

storage containers of a type and in a

location as described in Sections 79-3 and

79-4 of the code and/or as otherwise

approved by the Commissioner of Public

Works.

121

(2) PREMISES, LANDSCAPED, DRAINED,

AND GRADED. (BOCA 301.2).

(a) Required Maintenance.

Every premises shall be

graded and drained so no stagnant water

will accumulate or stand on the premises

Or within any building or structure

located on the premises, and every

premises shall be continuously maintained

in a sanitary, erosion-free, and dust-free

condition by suitable landscaping with

grass, trees, shrubs, or other planted

ground cover, or by paving with asphalt,

concrete, or by such suitable means as

shall be approved by the Commissioner of

Building Inspection.

(b) Occupant's Responsibility.

Where a premises is

occupied or shared by less than two (2)

dwelling units, the continued maintenance

of the premises in the above conditions

shall also be the responsibility of the

occupants.

Any person who violates

this section shall for each violation

forfeit not less than twenty-five dollars

($25) nor more than one hundred dollars

($100).

(d) Enforcement.

Whenever a premises is not

in compliance with subsection (2) (a) above

and presents an immediate hazard to public

health and welfare, the Commissioner of

Building Inspection shall give thirty (30)

122

days' notice to the owner or owners or the

agent of such owners and occupant or

tenant of premises in the City of

Milwaukee to correct the violation. In

the event said vi@lation is not corrected,

the Commissioner of Building Inspection

shall have the power and hereby is

authorized and directed, after the

expiration of said thirty (30) days'

notice, and, noncompliance therewith, to

cause such premises to be landscaped,

seeded, and/or sodded, as necessary, by

the Department of Public Works, at the

expense of the owner. Premises shall be

considered hazardous when it becomes a

potential source of filth and cause of

sickness, when stagnant water or dust is

left to accumulate or stand on the

premises, or when erosion of the soil

Causes the same to spill over onto the

Sidewalk, street, or the adjoining

property.

(5) PUBLIC AREAS.

All sidewalks, steps,

driveways, parking spaces and similar

paved areas for public use shall be kept

in a proper state of repair and free of

all debris. (BOCA 301.5).

(9) FENCES AND ACCESSORY

STRUCTURES.

No owner shall permit any

premises to exist or any nondwelling

structure or fence to exist on any

premises which does not comply with the

following requirements: (BOCA 301.9).

(a) Accessory Structures in

Good Repair.

So. al a ee

Every foundation, exterior

wall, roof, window, exterior door,

basement hatchway, and every other

entrance way of every nondwelling

structure shall be maintained as to

prevent the structure from becoming a

harborage for rats and shall be kept in a

reasonably good state of repair.

(b) Exterior Wood Surfaces

Painted.

All exterior wood surfaces

Of all nondwelling structures shall be

properly protected from the elements and

against decay by paint or other approved

protective coating applied in a

workmanlike manner.

Every fence shall be kept

in a reasonably good state of maintenance

and repair or shall be removed.

51-32. Exterior Structure.

(1) GENERAL.

The exterior of a structure

shall be maintained structurally sound and

Sanitary so as not to pose a threat to the

health and safety of the occupants and so

as to protect the occupants from the

environment. (BOCA 302.1).

(2) STRUCTURAL MEMBERS.

All supporting structural

members of all structures shall be kept

structurally sound, free of deterioration

and maintained capable of safely bearing

the dead and live loads imposed upon

them. (BOCA 302.2).

(3) ALL EXTERIOR SURFACES.

(FOUNDATIONS, EXTERIOR WALLS,

ROOFS.).

Every foundation, exterior

wall, and roof shall be reasonably

weathertight, watertight, rodentproof, and

insectproof; and shall be kept in a

reasonably good state of maintenance and

repair.

(a) Wooden Surfaces Protected.

All exterior wood surfaces

shall be reasonably protected from the

elements and against decay, by paint or

other approved protective coating applied

in a workmanlike fashion.

(b) Ferrous Metal Surfaces

Protected.

All ferrous metal surfaces

shall be properly surface coated when

required to prevent deterioration.

(d) All cornices,

entablatures, belt courses, corbels,

terracotta trim, wall facings, and similar

decorative features shall be maintained in

good repair with proper anchorage and in a

safe condition. (BOCA 302.3, 4.).

(e) Signs, Marquees, and

Awnings.

All canopies, marquees,

signs, metal awnings, stairways, fire

escapes, standpipes, exhaust ducts and

similar overhang extensions shall be

maintained in good repair and be properly

anchored so as to be kept in a safe and

sound condition. They shall be protected

Ur i

from the elements and against decay and

rust by the periodic application of a

weather-coating material such as paint or

other protective treatment. (BOCA 302.3,

5.).

(£) Chimneys and Supplied

Smoke Pipes.

Every chimney and every

supplied smoke pipe shall be adequately

Supported, reasonably clean, and

maintained in a reasonably good state of

repair.

(g) Stairways and Porches.

Every inside and outside

Stairway, every porch, and every

appurtenance thereto shall be constructed

as to be reasonably safe to use and

capable of supporting the load that normal

use may cause to be placed thereon; and

shall be kept in sound condition and in a

reasonably good state of maintenance and

repair. (BOCA 302.3, 7.).

(h) Stairways, Exits, and

Handrails.

Every exit from every

dwelling shall comply with the following

requirements:

1. It should be kept in a

reasonably good state of repair;

2. It shall be

unobstructed at all times;

3. All exit stairways of

more than three (3) risers shall have at

least one (1) handrail and all stairways

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which are five (5) feet or more in width,

or which are open on both sides, shall

have a handrail on each side. Stairways

which are less than five (5) feet in width

shall have a handrail on the lefthand side

as one mounts the stairs on the open side,

if any; and

4. All handrails shall

not be less than thirty (30) inches

vertically above the nose of the stair

treads and not less than forty-two (42)

inches above stairway platforms.

(4) WINDOWS, DOORS, AND BASEMENT

HATCHWAYS.

(a) In Good Repair.

Every window, exterior

door, and basement hatchway shall be

reasonably weathertight and rodentproof;

and shall be kept in reasonably good

working condition and a reasonably good

state of maintenance and repair.

(b) Openable Windows.

Every window, other than a

fixed window, shall be capable of being

easily opened and shall be held in

position by window hardware.

(d) Insect Screens.

Every window required for

ventilation including bath and toilet

rooms shall be supplied with approved

screening covering 33 1/3% of window area,

except that such screens shall not be

required for window areas above the fifth

floor.

127

1. Screens for Basement

Windows.

Every dwelling having

two (2) or more basement windows shali

have at least two (2) window screens which

cover the entire window. Where there is

only one basement window, it shall be

Similarly screened. Such screens shall

have a wire mesh of not less than number

16.

(e) Door Hardware.

Every exterior door, door

hinge, and door latch shall be maintained

in good condition. Door locks in dwelling

units shall be in good repair and capable

of tightly securing the door. (BOCA

302.4, 5).

(5) ROOFS. (RAINWATER DRAINAGE).

All water shall be conveyed

and drained from every roof so as not to

cause dampness or damage to the exterior

Or interior of the structure. Such water

shall be drained and directed in a manner

which will in no way damage the adjoining

premises.

(6) ROOF GUTTERS AND CONDUCTORS

REQUIRED.

Except for private detached

accessory buildings not more than one

thousand (1,000) square feet in area, all

roofs of all buildings and structures

shall be provided with approved-type

gutters and conductors. Such gutters and

conductors shall be properly installed and

maintained in good repair at all times.

128

51-33. Interior Structure.

(1) GENERAL.

The interior of a structure

and its equipment shall be maintained

structurally sound and in a sanitary

condition so as not to pose a threat to

the health and safety of the occupants and

protect the occupants from the

environment. (BOCA 303.1)

(2) STRUCTURAL MEMBERS.

The supporting structural

members of every building shall be

maintained structurally sound, not showing

any evidence of deterioration which would

render them incapable of carrying the

imposed loads. (BOCA 303.2).

(3) INTERIOR SURFACES.

(a) To be Clean.

Every interior partition,

wall, floor, and ceiling shall be capable

of affording privacy, kept in a reasonably

good state of repair, and maintained so as

to permit them to be kept in a clean and

sanitary condition.

(b) Bathroom and Kitchen

Floors.

Every toilet, bathroom and

kitchen floor surface shall be constructed

and maintained so as to be substantially

impervious to water and so as to permit

such floor to be easily kept in a clean

and sanitary condition. (BOCA 303.3, 2.).

129

(4) FREE FROM DAMPNESS.

In every building, cellars,

basements and crawl spaces shall be

maintained reasonably free from dampness

to prevent conditions conducive to decay

Or deterioration of the structure. (BOCA

303.4).

(5) SANITATION.

(a) Required.

The interior of every

structure shall be maintained in a clean

and sanitary condition free from any

accumulation of rubbish, refuse or

garbage. Rubbish, garbage, and other

refuse shall be properly kept inside

temporary storage facilities as

required. (BOCA 303.5).

(b) Storage.

Garbage or refuse shall

not be allowed to accumulate or be stored

in public halls or stairways. (BOCA

303.5, 1.).

(6) INSECT AND RODENT HARBORAGE.

All structures shall be kept

free from insect and rodent infestation,

and where insects or rodents are found,

they shall be promptly exterminated by

acceptable processes which will not be

injurious to human health. After

extermination, proper precautions shall be

taken to prevent reinfestation. (BOCA

303.6.).

130

(8) EXIT FACILITIES.

All interior stairs and

railings and other exit facilities of

every structure shall be maintained in

sound condition and good repair by

replacing treads and risers that evidence

excessive wear or are broken, warped or

loose. Every inside stair shall be so

constructed and maintained as to be safe

to use and capable of supporting the

anticipated loads. (BOCA 303.8, l.).

51-40. Light, Ventilation and Space

Requirements.

(1) SCOPE.

The provisions of this article

shall govern the minimum conditions and

standards for the light, ventilation and

space for the occupancy of a structure.

All light, ventilation and space

conditions shall comply with the

requirements herein prescribed insofar as

they are applicable. (BOCA 400.1.).

(2) RESPONSIBILITY.

The owner of the structure

shall provide and maintain such light and

ventilation and space conditions in

compliance with these requirements. A

person shall not occupy as owner-occupant

or let to another for occupancy or use any

premises which does not comply with the

following requirements of this article.

(BOCA 400.2.).

131

(4) OPEN SPACE.

An open space when used for

the origin of light and ventilation shall

be maintained unobstructed. (BOCA

400.4.).

(1) GENERAL.

All spaces or rooms shall be

provided sufficient light so as not to

endanger health and safety. (BOCA

401.1.). o

(2) REQUIRED WINDOW AREA.

Every habitable room shall

have at least one window facing directly

to the outdoors. The minimum total window

area, measured between stops, for every

habitable room shall be at least eight

percent (8%) of the floor area of such

room. Whenever the only window in a room

is a skylight-type window in the top of

such room, the total window area of the

skylight shall equal at least fifteen

percent (15%) of the total floor area of

such room. Skylight-type windows existing

on the effective date of this ordinance

(December 6, 1968) may, if less than

fifteen percent (15%) of the total floor

area be increased to fifteen percent (15%)

but no skylight-type window shall be

installed in lieu of a window where a

skylight has not previously existed.

(3) LIGHTING OF COMMON HALLS AND

STAIRWAYS.

(a) Two or More Family

Dwellings.

132

Public pathways and

Stairways in buildings accommodating two

(2), three (3), or four (4) families shall

be provided with convenient light switches

controlling an adequate lighting system

which may be turned on when needed. An

emergency circuit is not required for this

lighting.

(b) Four or More Families.

Public pathways and

Stairways in buildings accommodating more

than four (4) families, or thirty (30)

persons, and in every building which

accommodates transients shall be lighted

at all times with adequate artificial

lighting; except, that such artificial

lighting may be omitted from sunrise to

Sunset where adequate natural lighting is

provided. Whenever the occupancy of the

building exceeds one hundred (100)

persons, the artificial lighting as

regulated herein shall be on an emergency

circuit.

1. Adequate lighting

system, as herein required, shall mean an

intensity of two and one-half (2 1/2) foot

candles at a plane thirty (30) inches

above the floor line.

2. The required intensity

shall apply to both natural and artificial

lighting.

133

(4) OTHER SPACES.

All other spaces shall be

provided with natural or artificial light

of sufficient intensity and so distributed

as to permit the maintenance of sanitary

conditions, and the safe use of the space

and the appliances, equipment and

fixtures. (BOCA 401.4.).

51-42. Ventilation.

(1) GENERAL

All spaces or rooms shall be

provided sufficient natural or mechanical

ventilation so as not to endanger health

and safety. Where mechanical ventilation

is provided in lieu of the natural

ventilation, such mechanical ventilating

system shall be maintained in operation

during the occupancy of any structure or

portion thereof. (BOCA 402.1.).

(2) ADEQUATE VENTILATION REQUIRED.

Every habitable room shall

have at least one window or skylight which

can easily be opened, or such other device

as will adequately ventilate the room.

The total openable window area in every

habitable room shall be equal to at least

fifty percent (50%) of the minimum window

area size or minimum skylight-type size,

as required in Section 51-41(2) except

where there is supplied some other device

affording adequate ventilation.

134

(3) LIGHT AND VENTILATION

REQUIREMENTS FOR BATHROOMS AND

TOILET ROOMS.

Every bathroom and toilet room

shall comply with the light and

ventilation requirements for habitable

rooms contained in Sections 51-41(2) and

51-42(2) except that no windows or

skylights shall be required in adequately

ventilated bathrooms and toilet rooms

equipped with an adequate mechanical

ventilation system. (BOCA 402.3.).

51-43. Dwelling Unit Limitations.

(1) SEPARATION OF UNITS.

Dwelling units shall be

separate and apart from each other.

Sleeping rooms shall not be used as the

only means of access to other sleeping

rooms or habitable spaces. (BOCA 403.1.).

(2) BASEMENT ROOMS.

Basement rooms used for living

purposes shall comply with Chapter 34 and

Chapter 37 of the Milwaukee Code.

51-44. Space Requirements.

(1) MINIMUM AREA FOR DWELLING UNIT

HAVING ONE HABITABLE ROOM.

Every dwelling unit containing

one habitable room shall have a minimum

floor area of one hundred and fifty (150)

Square feet when occupied by one person

and an additional one hundred (100) square

feet for each additional occupant. Any

dwelling unit created in accordance with

the provisions of the Milwaukee Code prior

135

to October 20, 1971, shall not contain

less than one hundred and twenty (120)

Square feet of habitable room floor area

for one person or not less than one

hundred and seventy (170) square feet of

habitable room floor area if occupied by

more than one occupant. The maximum

occupancy for a one (1) room dwelling unit

shall be two (2) people.

(2) MAXIMUM OCCCUPANCY FOR

DWELLING UNITS OF TWO (2) OR

MORE ROOMS.

No dwelling unit consisting of

two (2) or more rooms shall be occupied by

more occupants than the total number which

is calculated on the following basis:

TYPE OF ROOM OCCUPANCY

SUBTOTAL

- Kitchen 0

2. Each habitable room containing

less than seventy (70) square

feet of floor area 0

3. Each habitable room containing

at least seventy (70) but less

than one-hundred (100) square

feet of floor area 1

4. Each habitable room containing

one-hundred (100) or more square

feet of floor area 2

(4) SLEEPING IN KITCHENS OR

HALLWAYS PROHIBITED.

It shall be prohibited to use

for sleeping purposes any kitchen,

nonhabitable space, or public space.

(BOCA 404.4.).

(S) RESTRICTED USES.

(a) Minimum Ceiling Height.

At least one-half of the

floor area of every habitable room shall

have a ceiling height of at least seven

(7) feet; and the floor area of that part

of any room where the ceiling height is

less than five (5) feet shall not be

considered as part of the floor area in

computing the total floor area of the room

for the purpose of determining the maximum

permissible occupancy thereof.

(b) Creation of Dwelling Unit

Sharing a Toilet and a Bath.

No dwelling unit may be

permitted where occupants share a toilet,

Or a bath, or a lavatory basin with the

occupants of another dwelling unit or

other dwelling units, in accordance with

the provisions of Section 51-51(1) (a)2,

(1) (b)2, and (1) (c)2 unless such unit has

been created in accordance with the

provisions of the Milwaukee Code

applicable at the time of its creation,

and unless every such dwelling is located

in a second class dwelling for which a

valid second class dwelling permit was

issued in accordance with the provisions

of Section 51-19(3) of the Code and in

effect on October 20, 1971.

51-50. Plumbing Facilities and

Fixture Requirements.

(1) SCOPE.

The provisions of this chapter

shall govern the minimum plumbing

facilities and fixtures to be provided.

tor

All plumbing facilities and fixtures shall

comply with the requirements herein

prescribed insofar as they are

applicable. (BOCA 500.1.).

(2) RESPONSIBILITY.

The owner of the structure

shall provide and maintain such plumbing

facilities and fixtures in compliance with

these requirements. A person shall not

occupy as owner-occupant or let to another

for ocupancy or use any structure of

portion thereof or premise which does not

comply with the following requirements of

this article. (BOCA 500.2.).

51-51. Required Facilities.

(1) PLUMBING FACILITIES REQUIRED.

Every occupant of every

dwelling shall have unrestricted access to

a kitchen sink, toilet, bath, and lavatory

basin required in accordance with the

provisions of this section.

(a) Toilet Required.

1. Basic Requirement.

Every dwelling unit

shall contain a toilet, except as

otherwise permitted in subsection (1) (a)2

below.

2. Sharing a Toilet.

The occupants of two

(2) or more second class dwelling units

may share a toilet if the total number of

occupants sharing a single toilet does not

exceed eight (8).

138

(b) Lavatory Basin Required.

1. Basic Requirement.

When existing dwelling

units are remodeled to include any change

in floor plans or there are 2dditions

thereto, each unit, except as otherwise

specified under subsection (1) (b)2 below

shall contain a lavatory basin within the

room in which the required toilet is

located.

2. Sharing a Lavatory

Basin.

Every second class

dwelling shall contain a lavatory basin or

lavatory basins within the room or rooms

in which the communal toilet or toilets

are located and the total number of

lavatory basins shall not be less than the

number of toilets.

1. Basic Requirement.

Every dwelling unit

shall contain a bath, except as otherwise

permitted in subsection (1) (c)2 below.

2. Sharing a Bath.

The occupants of every

second class dwelling unit shall have

access to a bath located within the second

class dwelling unit occupied by them or

the occupants to two (2) or more second

class dwelling units may share a bath,

provided the total number of occupants in

the two (2) or more second class dwelling

units sharing a single bath does not

exceed eight (8).

(tn

139

(d) Kitchen Sink Required.

Every dwelling unit shall

contain an approved kitchen sink.

51-52. Toilet Rooms..

(1) PRIVACY IN A ROOM CONTAINING

TOILET AND BATH.

Every toilet and every bath

shall be contained within a room or within

separate rooms which afford privacy to a

person within said room or rooms. (BOCA

S02.1.).

(2) DIRECT ACCESS.

Toilet rooms and bathrooms

shall not be used as a passageway to a

hall or other space, or to the exterior.

A toilet room or bathroom in a dwelling

unit shall be accessible from any sleeping

room without passing through another

Sleeping room. (BOCA 502.2.).

(3) LOCATION OF COMMUNAL TOILETS

AND BATHS.

Every communal toilet and

bath, required to be provided in

accordance with provisions of Section 5l-

51(1)(b)2 and (1) (c)2 shall be located

within a room or rooms accessible to the

occupants of each dwelling unit sharing

such facilities without going through a

dwelling unit of another occupant and

without going outside of the dwelling, and

said room or rooms shall be located on the

same floor of the dwelling as, or on the

floor immediately above or immediately

below, the dwelling units whose occupants

share the use of such facilities.

_ 2 —

140

51-53. Plumbing Fixtures.

(1) GENERAL.

All plumbing fixtures shall be

maintained in a safe and useable

condition. All plumbing fixtures shall be

of approved material. (BOCA 503.1.).

(2) MAINTENANCE OF SUPPLIED

PLUMBING FIXTURES.

Every supplied plumbing

fixture and water and waste pipe shall be

properly installed and maintained in good

Sanitary, working condition.

(4) ACCESS FOR CLEANING.

Plumbing fixtures shall be

installed as to permit easy access for

Cleaning both the fixture and the area

about it. (BOCA 503.4.).

51-54. Water System.

(1) GENERAL.

Every sink, lavatory, bathtub

or shower, drinking fountain, water closet

or other facility shall be properly

connected to an approved water system.

All sinks, lavatories, bathtubs and

showers shall be supplied with hot and

cold running water. (BOCA 504.1.).

(3) SUPPLY.

The water supply systems shall

be installed and maintained to provide at

all times a supply of water to plumbing

fixtures, devices, and appurtenances in

sufficient volume and at pressures

141

adequate to enable them to function

satisfactorily. (BOCA 504.3.).

(4) HOT WATER HEATING FACILITY.

Every supplied hot water

heating facility shall be properly

connected with the hot water lines

required under the provisions of this

chapter and shall be capable of heating

water to such a temperature as to permit

an adequate amount of water to be drawn at

every kitchen sink, bath, and lavatory

basin required under the provisions of

this chapter, at a temperature of not less

than one-hundred twenty (120) degrees F.

(BOCA 504.4.).

51-55. Sewage System.

(1) GENERAL.

Every sink, lavatory, bathtub

or shower, drinking fountain, water closet

or other facility shall be properly

connected to either a public sewer system

Or to an approved private sewage disposal

system. (BOCA 505.1.).

(2) MAINTENANCE.

Every plumbing stack, waste

and sewer line shall be so installed and

maintained as to function properly and

shall be kept free from obstructions,

leaks, and defects to prevent structural

deterioration or health hazards. All

repairs and installations shall be made in

accordance with the provisions of the

Milwaukee Code. (BOCA 505.2.).

142

51-60. Mechanical and Electrical

Requirements.

(1) SCOPE.

The provisions of this article

shall govern the minimum mechanical and

electrical facilities and equipment to be

provided. All mechanical and electrical

facilities and equipment shall comply with

the requirements herein described insofar

as they are applicable. (BOCA 600.1.).

(2) RESPONSIBILITY.

The owner of the structure

shall provide and maintain such mechanical

and electrical facilities and equipment in

compliance with these requirements. A

person shall not occupy as owner-occupant

or let to another for occupancy or use any

premises which do not comply with the

following requirements of this article.

(BOCA 600.2.).

51-61. Heating Facilities.

(1) HEATING FACILITIES SUPPLIED.

(a) Whenever a dwelling unit

has supplied heating facilities, said

facilities shall be properly installed, be

maintained in reasonably good working

condition and be capable of adequately

heating all habitable rooms, bathrooms,

and toilet rooms contained therein, or

intended for use by the occupants thereof,

to a temperature of at least sixty-seven

degrees (67°) Fahrenheit at a distance of

three (3) feet above fioor level, when the

outdoor temperature is at or above ten

degrees (10°) below zero Fahrenheit.

143

(b) Supplied Heat.

Every owner or operator

who rents, leases, or lets any dwelling

unit on terms, either express or implied,

to supply heat to the occupants thereof,

shall maintain a minimum temperature of

Sixty-seven degrees (67°) Fahrenheit

continuously during periods of occupancy.

Whenever a dwelling is

heated by means of a furnace, boiler, or

other heating apparatus under the control

of the owner or operator of the dwelling,

such owner or operator, in the absence of

a written contract or agreement to the

contrary, shall be deemed to have

contracted, undertaken or bound himself to

furnish heat in accordance with the

provisions of this subsection to every

dwelling unit which contains radiators,

furnace heat duct outlets, or other

heating apparatus outlets, and to every

communal kitchen, communal dining room,

communal bathroom and communal toilet room

located within each dwelling.

(2) HEATING FACILITIES NOT

SUPPLIED.

Whenever a dwelling unit does

not have supplied heating facilities, it

shall contain a sufficient number of

chimney outlets to permit the occupant,

through the use of space heaters furnished

by said occupant, to adequately heat all

habitable rooms, bathrooms and toilet

rooms contained therein or intended for

use by the occupants thereof, to a

temperature of at least sixty-seven

degrees (67°) Fahrenheit, at a distance

i ,

144

three (3) feet above floor level, when the

Outdoor temperature is at or above ten

degrees (10°) zero Fahrenheit.

(a) Central Heating Systems.

Every supplied central

heating system shall comply with all of

the following requirements:

1. The central heating

unit shall be in reasonably good operating

condition;

2. Every heat duct, steam

pipe, and hot water pipe shall be free of

leaks and shall function so that an

adequate amount of heat is delivered where

intended; and

3. Every seal between the

sections of a hot air furnace shall be

tight, so noxious gases will not escape

into heat ducts.

(b) Space Heaters.

Every owner or tenant

installed space heater shall be properly

installed, maintained in reasonably good

working condition, and shall comply with

all of the following requirements:

1. No space heater

burning solid, liquid, or gaseous fuels

shall be a portable type;

2. Every space heater

burning solid, liquid, or gaseous fuels

shall be properly vented to a chimney or

duct leading to outdoor space;

145

3. Every coal-burning

space heater shall have a fire-resistant

panel beneath it;

4. Except as noted in

subsection (2) (b)6 below, every space

heater located within two (2) feet of a

wall shall be equipped with insulation

sufficient to prevent the overheating of

the wall;

5. Every space heater

smoke pipe shall be equipped with guards,

properly constructed of nonflammable

material at the point where the pipe goes

through a wall, ceiling, or partition; and

6. The clearance of

automatically controlled gas space heaters

to combustible construction shall be as

set forth in Section 39-7(18) of the code.

(3) COOKING AND HEATING EQUIPMENT.

All cooking and heating

equipment, components, and accessories in

every heating, cooking, and water heating

device shall be maintained free from leaks

and obstructions, and kept functioning

properly so as to be free from fire,

health, and accident hazards. All

installations and repairs shall be made in

accordance with the provisions of the

building code, or other laws or ordinances

applicable thereto. Portable cooking

equipment employing flame is prohibited,

except for approved residential type food

trays or salvers which are heated by a

candle or alcohol lamp. (BOCA 601.3.).

146

(4) INSTALLATION.

All mechanical equipment shall

be properly installed and safely

maintained in good working condition, and

be capable of performing the function for

which it was designed and intended. (BOCA

601.4.).

(a) Flue.

All fuel-burning equipment

shall be connected to an approved chimney

flue or vent. (BOCA 601.4.1.).

(b) Clearances.

All required clearances to

combustible materials shall be

maintained. (BOCA 601.4.2.).

All safety controls for

fuel-burning equipment shall be maintained

in effective operation. (BOCA 601.4.3.).

(d) Combustion Air.

A supply of air for

complete combustion of the fuel and for

ventilation of the space shall be provided

the fuel-burning equipment. (BOCA

601.4.4.).

(5) FIREPLACES.

Fireplaces, and other

construction and devices intended for use

Similar to a fireplace, shall be stable

and structurally safe and connected to

approved chimneys. (BOCA 601.5.).

147

51-62. Electrical Facilities.

(1) ELECTRIC OUTLETS REQUIRED.

Where there is suitable

electric service available from supply

lines which are not more than three

hundred (300) feet away from a dwelling,

including all existing dwellings now

supplied with electrical service, every

kitchen, living room, rooming unit, and

hotel unit within such dwelling shall

contain at least two (2) separate and

remote floor or walli-type electric

convenience outlets, or one (1) such

convenience outlet and one (1) supplied

ceiling or wall-type electric light

fixture, and every bedroom, dining room,

toilet room, bathroom, laundry room,

furnace room, and public hall shall

contain at least one (1) supplied ceiling-

type or wall-type electric light fixture;

provided, that in lieu of one (1) supplied

ceiling-type or wall-type electric light

fixture, a bedroom and a dining room may

each contain at least two (2) separate and

remote floor or wall-type electric

convenience outlets. Every such outlet

and fixture shall be properly installed,

shall be maintained in reasonably good

working condition, and shall be connected

to the source of electric power ina

proper manner.

(2) INSTALLATION.

All electrical equipment,

wiring, and appliances shall be installed

and maintained in a safe manner in

accordance with all applicable laws. All

electrical equipment shall be of an

approved type. (BOCA 602.2).

148

(3) DEFECTIVE SYSTEM.

Where it is found, in the

opinion of the Commissioner of Building

Inspection that the electrical system in a

structure constitutes a hazard to the

occupants or the structure by reason of

inadequate service, improper fusing,

insufficient outlets, improper wiring or

installation, deterioration or damage, or

for similar reasons, he shall require the

defects to be corrected to eliminate the

hazard. (BOCA 602.3).

51-80. Responsibility of Persons.

Responsibility of Owners,

Operators, and Occupants.

The provisions of Sections 51-81

and 51-82 shall govern the responsibility

of persons for the maintenance of

structures, equipment and premises

thereof. (BOCA 800.1)

51-81. Sanitary Conditions.

(1) CLEANLINESS.

(a) Occupant's Responsibility.

Every occupant of a

dwelling or dwelling unit shall keep in a

clean and sanitary condition that part of

the dwelling, dwelling unit and premises

thereof which he occupies or controls, and

prior to moving, vacating, or

relinquishing occupancy or control. Every

occupant of a dwelling or dwelling unit

shall properly dispose of all garbage and

rubbish, in accordance with the

requirements of this code.

149

(b) Owner's Responsibility.

Every owner of a dwelling

containing two (2) or more dwelling units

and every owner of a premises where two

(2) or more dwelling units share the same

premises shall be responsible for

maintaining in a clean and sanitary

condition all communal, shared, or public

areas of the dwelling and premises thereof

which are used or shared by the occupants

of two (2) or more dwelling units.

In any rental dwelling or

rental dwelling unit, storm windows shall

be supplied to the tenant for each window

in each habitable room of the rental

dwelling or rental dwelling unit upon

occupancy except that storm windows need

not be provided hereunder if heat in the

rental dwelling or rental dwelling unit is

supplied by the owner or if heat in the

rental dwelling or rental dwelling unit

may be reasonably maintained at a

temperature of sixty-seven degrees (67°)

Fahrenheit within such rental dwelling or

rental dwelling unit. These storm windows

shall cover the entire window surface and

be capable of adequately sealing out cold

air and be constructed of rigid, clear

material. The responsibility of

installing the storm windows shall be

assumed by the tenant.

(11) BASEMENT DOOR LOCKS SUPPLIED

BY OWNER.

Every owner of a multifamily

dwelling containing three (3) or more

units shall install locks on basement and

cellar utility and laundry room doors of

said dwelling and provide keys for all

tenants.

150

(12) USE BY OCCUPANT OF SUPPLIED

HEATING FACILITIES.

Every occupant of a dwelling

unit shall be responsible for the exercise

of reasonable care, proper use, and proper

operation of supplied heating facilities.

(13) REQUIRED SERVICES,

FACILITIES, EQUIPMENT OR UTILITIES

NOT TO BE DISCONTINUED.

(a) Required Services Must Be

Maintained.

No owner or operator

shall cause any service, facility,

equipment or utility which is required or

supplied to be removed from or shut off

from, or discontinued for any occupied

dwelling or dwelling unit let or occupied

by him, except for such temporary

interruption as may be necessary while

actual repairs, replacements, or

alterations are being made.

(b) Required Services for

Rental Units.

See Section 51-30 for

regulations governing the maintenance of

essential services in residential rental

premises.

(14) DESTRUCTION, MUTILATION, OR

DEFACING OF PROPERTY.

No person shall willfully or

wantonly damage, mutilate, or deface any

part of residential real estate, supplied

fixtures and equipment, and supplied

furnishings or any other property of

another.

151

51-82. Extermination.

(1) OWNER.

(2)

(b)

The owner of any structure

shall be responsible for

extermination within the

structure prior to renting,

leasing, or selling the

structure. (BOCA 802.1).

EXTERMINATION OF PESTS.

(a) Owner's Responsibility.

Every owner of a dwelling

containing two (2) or more

Gwelling units shall be

responsible for the

extermination of insects,

rodents, or other pests on the

premises. Whenever

infestation exists in two (2)

Or more of the dwelling units

in any dwelling, or in the

shared or public parts of any

dwelling containing two (2) or

more dwelling units,

extermination thereof shall be

the responsibility of the

owner.

Tenant-Occupant's

Responsibility.

Every occupant of a dwelling

containing a single dwelling

unit shall be responsible for

the extermination of any

insects, rodents, or other

pests therein or on the

premises; and every occupant

of a dwelling unit ina

152

dwelling containing more than

one (1) dwelling unit shall be

responsible for such

extermination within the unit

occupied by him whenever his

dwelling unit is the only one

infested. Notwithstanding the

foregoing provisions of this

subsection, whenever

infestation is caused by

Failure of the owner to

maintain a dwelling in a

reasonably rodentproof or

reasonably insect proof

condition, extermination shall

be the responsibility of the

owner.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.