September 13, 2018
Author: David R. Friedman
Organization: Friedman Law Firm
THE RESIDENTIAL EVICTION ACTION
A. Residential Tenant and Landlord Rights and Obligations
The best places to look for the obligations of both the landlord and the tenant are Wis. Stat. 704 and ATCP 134. Generally, these two sections outline the respective rights when there is a lease in place. It is important to remember that the statute and rules also differ depending on the length of the lease. Generally, there are different rules for leases over one year. This presentation will deal with leases of one year or less.
The tenant has the right to exclusive possession of the premises until the expiration date of the lease, the termination of a period tenancy or tenancy at will and the tenant is not in default.
The landlord may upon advance notice and at reasonable times inspect the property, make repairs and show the property to prospective tenants and purchasers. 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. Advance notice means at least 12 hours advance notice unless the tenant, upon being notified of the proposed entry, consents to a shorter time period.
The tenant can make no physical changes in the nature of the premises, including decorating, removing, altering or adding to the structures, 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.
At the termination of the tenancy, the tenant may remove any fixtures installed by the tenant if the tenant 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 the tenant only if the tenant 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 right applies to any fixtures added by the tenant for the tenant’s convenience.
Wis. Stat. §704.06 governs the thermostat settings for a water heater. A water heater serving only that premises shall set the thermostat of that water heater at no higher than 125 degrees Fahrenheit before any new tenant occupies that premises or at the minimum setting of that water heater if the minimum setting is higher than 125 degrees Fahrenheit.
Wis. Stat. §704.07 sets out the duties of the landlord and also the tenant with respect to repairs and untenantability. Any provision to waive the statute’s requirements is void.
With respect to repairs, the landlord has the following duties:
1. Keep in a reasonable state of repair portions of the premises over which the landlord maintains control.
2. Keep in a reasonable state of repair all equipment under the landlord's control necessary to supply services that the landlord has expressly or impliedly agreed to furnish to the tenant, such as heat, water, elevator, or air conditioning.
3. Make all necessary structural repairs.
4. Except for residential premises subject to a local housing code, and except as provided in sub. (3) (b), repair or replace any plumbing, electrical wiring, machinery, or equipment furnished with the premises and no longer in reasonable working condition.
5. For a residential tenancy, comply with any local housing code applicable to the premises.
(b) If the premises are part of a building, other parts of which are occupied by one or more other tenants, negligence or improper use by one tenant does not relieve the landlord from the landlord’s duty as to the other tenants to make repairs as provided in par. (a). (bm) A landlord shall disclose to a prospective tenant, before entering into a rental agreement with or accepting any earnest money or security deposit from the prospective tenant, any building code or housing code violation to which all of the following apply:
1. The landlord has actual knowledge of the violation.
2. The violation affects the dwelling unit that is the subject of the prospective rental agreement or a common area of the premises.
3. The violation presents a significant threat to the prospective tenant’s health or safety.
4. The violation has not been corrected.
(c) If the premises are damaged by fire, water or other casualty, not the result of the negligence or intentional act of the landlord, this subsection is inapplicable and either sub. (3) or (4) governs.
ATCP 134 sets out duties for the landlord concerning repairs. The first duty is to specify the date or time period on or within which the cleaning, repairs or improvements are to be completed. The second is that all promises made before the initial rental agreement shall be in writing with a copy furnished to the tenant.
The third duty is for the landlord to give timely notice to the tenant of reasons beyond the landlord’s control for any delay in performance, and stating when the cleaning, repairs or improvements will be completed.
With respect to repairs, the tenant has the following duties:
1. If the premises are damaged, including by an infestation of insects or other pests, due to the acts or inaction of the tenant, the landlord may elect to allow the tenant to remediate or repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the remediation, repair or redecoration, and in such case the tenant must reimburse the landlord for the reasonable cost thereof; the cost to the landlord is presumed reasonable unless proved otherwise by the tenant. (Underlining added).
2. Except for residential premises subject to a local building code, 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 the rent.
3. The tenant shall comply with a local housing code applicable to the premises. If there is no written lease, §704.07 applies to the obligation to make repairs. For there to be a remedy for a breach of a duty to repair other than that provided in sec. 704.07, the obligation must be in a written lease signed by both parties. Halverson v. River Falls Youth Hockey Association, 226 Wis.2d 105, 593 N.W.2d 895 (Ct. App. 1999).
The Wisconsin Court of Appeals in Bennett v. West Bend Mutual Insurance Co., 200 Wis.2d 313, 564 N.W.2d 204 (Wis. App. 1996), stated, “We conclude that this statutory provision prevents a tenant who negligently causes damage to a landlord's property to escape responsibility for the repairs which were paid by the landlord's insurer. A tenant is required by statute to pay for damage to the property caused by his or her negligence. See § 704.07(3)(a), Stats. This is the case regardless of whether the landlord or the landlord's insurer initially pays for the damage.”
There is always the issue of whether the premises is untenantable. The statute outlines the general procedure.
If the premises become untenantable because of damage by fire, water or other casualty or because of any condition hazardous to health, or if there is a substantial violation by the landlord of not repairing damage done by other tenants that materially affecting the health or safety of the tenant, the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard or the substantial violation of §704.07(2)(b) materially affecting the health or safety of the tenant.
Also the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on the tenant.
If the tenant remains in possession, rent abates to the extent the tenant is deprived of the full normal use of the premises. The law does not authorize rent to be withheld in full, if the tenant remains in possession. If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable. If the damage or condition is caused by negligence or improper use by the tenant, rent abatement is not available.
If your municipality had a rent abatement procedure, you need to double check to see if it is still valid.
B. Evictions for Non-Payment of Rent
Wis. Stat. §704.17 sets out the procedure for evictions. The first thing you need to know before you start an eviction action for failure to pay rent is the length of the lease. This is important because the procedure depends on the length of the lease. For month-to-month and week-to-week tenancies, the tenant’s tenancy is terminated if the landlord gives the tenant notice requiring the tenant to pay rent or vacate on or before a date at least 5 days after the giving of the notice and if the tenant fails to pay accordingly. A month-to-month tenancy is terminated if the landlord, while the tenant is in default in payment of rent, gives the tenant notice requiring the tenant to vacate on or before a date at least 14 days after the giving of the notice.
For leases less than one year and year long leases, the tenant fails to pay any installment of rent when due, the tenant's tenancy is terminated if the landlord gives the tenant notice requiring the tenant to pay rent or vacate on or before a date at least 5 days after the giving of the notice and if the tenant fails to pay accordingly. If a tenant has been given such a notice and has paid the rent on or before the specified date, or been permitted by the landlord to remain in possession contrary to such notice, and if within one year of any prior default in payment of rent for which notice was given the tenant fails to pay a subsequent installment of rent on time, the tenant's tenancy is terminated if the landlord, while the tenant is in default in payment of rent, gives the tenant notice to vacate on or before a date at least 14 days after the giving of the notice.
For leases that are for more than one year, where the tenant fails to pay rent when due, the tenancy is terminated if the landlord gives the tenant notice requiring the tenant to pay the rent on or before a date at least 30 days after the giving of the notice, and if the tenant fails to comply with the notice. A tenant is deemed to be complying with the notice if promptly upon receipt of the notice the tenant takes reasonable steps to remedy the default and proceeds with reasonable diligence, or if damages are adequate protection for the landlord and the tenant makes a bona fide and reasonable offer to pay the landlord all damages for the tenant's breach; but in case of failure to pay rent, all rent due must be paid on or before the date specified in the notice.
C. Evictions for Other Causes than Non-Payment of Rent
Once again, the length of the lease determines the procedure to be used. It is very important that the landlord have written standards governing the tenant’s conduct. The standards can be found in the lease or a set of rules that are incorporated into the lease. For a month-to-month tenant who commits waste or a material breach of section 704.07(3) or any covenant or condition of the tenant’s agreement, the tenancy can be terminated if the landlord gives the tenant notice requiring the tenant to vacate on or before a date at least 14 days after the giving of the notice.
The Wisconsin Court of Appeals, in Three & One Co. v. Geilfuss, 178 Wis.2d 400, 408, 409, 504 N.W.2d 393, said “[w]aste is defined as ‘the unreasonable conduct by the owner of a possessory estate that results in physical damage to the real estate and substantial diminution in the value of the estates in which others have an interest.’ Whether a particular act is waste depends on the circumstances. Waste may be active (i.e., intentional or voluntary) or passive (the result of negligence or the failure to act).” (citations omitted)
If a tenant under a lease for a term of one year or less, or a year-to-year tenant, commits waste or a material violation of § 704.07 (3) or breaches any covenant or condition of the tenant's lease, the tenant's tenancy is terminated if the landlord gives the tenant a notice requiring the tenant to remedy the default or vacate the premises on or before a date at least 5 days after the giving of the notice, and if the tenant fails to comply with such notice.
A tenant is deemed to be complying with the notice if promptly upon receipt of such notice the tenant takes reasonable steps to remedy the default and proceeds with reasonable diligence or if damages are adequate protection for the landlord and the tenant makes a bona fide and reasonable offer to pay the landlord all damages for the tenant's breach.
If within one year from the giving of any such notice, the tenant again commits waste or breaches the same or any other covenant or condition of the tenant's lease, other than for payment of rent, the tenant's tenancy is terminated if the landlord, prior to the tenant's remedying the waste or breach, gives the tenant notice to vacate on or before a date at least 14 days after the giving of the notice.
If a tenant under a lease for more than one year commits waste, or breaches any other covenant or condition of the tenant's lease, the tenancy is terminated if the landlord gives the tenant notice requiring the tenant to repair the waste, or otherwise comply with the lease on or before a date at least 30 days after the giving of the notice, and if the tenant fails to comply with the notice.
A tenant is deemed to be complying with the notice if promptly upon receipt of the notice the tenant takes reasonable steps to remedy the default and proceeds with reasonable diligence or if damages are adequate protection for the landlord and the tenant makes a bona fide and reasonable offer to pay the landlord all damages for the tenant's breach.
The statute also contains provisions for removing the tenant where the landlord has received written notice from a law enforcement agency of a city, town or village or from the district attorney’s office that a nuisance in the form of a drug or criminal gang house exists in the tenant’s rental unit or was caused by the tenant on the owner’s property. In such situations the procedure is the same regardless of the length of the leases.
Once the landlord receives such a notice, the landlord may terminate the tenancy if the property owner gives the tenant written notice to vacate on or before a date at least 5 days after the giving of the notice. The notice shall state the basis for its issuance and the right of the tenant to contest the termination of tenancy in an eviction action under ch. 799. If the tenant contests the termination of tenancy, the tenancy may not be terminated without proof by the property owner by the greater preponderance of the credible evidence of the allegation in the notice from the law enforcement agency of a city, town or village or the district attorney’s office that a nuisance under § 823.113 (1) or (1m) (b) exists in that tenant's rental unit or was caused by that tenant.
D. Notice Requirements
Wis. Stat. §704.19 sets out the requirement for the notice to be given to the tenant regardless of whether it is for rent or violations (other than the drug or criminal gang house).
Generally, either party can terminate the tenancy be giving written notice to the other party. A periodic tenancy can be terminated by notice only at the end of a rental period. In the case of a tenancy from year-to-year, the end of the rental period is the end of the rental year even though rent is payable on a more frequent basis.
The effect of a properly given notice is that the tenant is not entitled to possession or occupancy of the premises after the date of termination as specified in the notice. The content of the notice is very basic. Notice must be in writing, formal or informal, and substantially inform the other party to the landlord-tenant relation of the intent to terminate the tenancy and the date of termination. A notice is not invalid because of errors in the notice which do not mislead, including omission of the name of one of several landlords or tenants.
Notice should be given at least 28 days' notice must be given except if rent is payable on a basis less than monthly, notice at least equal to the rent-paying period is sufficient.
You give notice by one of five methods. (The law also says that if there are 2 or more cotenants, notice to one is notice to all).
Method One. Give a copy of the notice personally to the tenant or by leaving a copy at the tenant's usual place of abode in the presence of some competent member of the tenant's family at least 14 years of age, who is informed of the contents of the notice.
Method Two. Leave a copy with any competent person apparently in charge of the rented premises or occupying the premises or a part thereof, and by mailing a copy by regular or other mail to the tenant's last-known address.
Method Three. If after reasonable diligence, the first two methods do not work, you then give notice by affixing a copy of the notice in a conspicuous place on the rented premises where it can be conveniently read and by mailing a copy by regular or other mail to the tenant's last-known address.
Method Four. Mail a copy of the notice by registered or certified mail to the tenant at the tenant's last-known address.
Method Five. Serve the tenant as prescribed in § 801.11 for the service of a summons.
If the tenant is going to give the landlord notice, the tenant can use methods one, two, four and five.
E. Timing of Notice Requirements
So how do you count the days to determine whether timely notice has been given? For methods one, on the day of giving the notice to the tenant or a competent person of the tenant’s family and that day is counted as the first day of the notice period. For methods two and three, it is the date of leaving or affixing a copy or the date of mailing, whichever is later.
For method four, it is the 2nd day after mailing for address in the State of Wisconsin and the 5th day in all other cases.
For method five, it is the day of service. Finally there is a catch all or fail safe provision for the landlord. If notice is not properly given by one of the methods specified in this section, but is actually received by the other party, the notice is deemed to be properly given; but the burden is upon the party alleging actual receipt to prove the fact by clear and convincing evidence.
The law also recognizes that not all notices are accurately given, and there is procedure to deal with this matter.
If a notice provides that a periodic tenancy is to terminate on the first day of a succeeding rental period rather than the last day of a rental period, and the notice was given in sufficient time to terminate the tenancy at the end of the rental period, the notice is valid. Also if the notice was given by the landlord the tenant may remove on the last day specified in the notice.
If a notice specified any other inaccurate termination date, because it does not allow the 28 days or because it does not correspond to the end of a rental period in the case of a periodic tenancy, the notice is valid but not effective until the first date which could have been properly specified in such notice subsequent to the date specified in the notice, but the party to whom the notice is given may elect to treat the date specified in the notice as the legally effective date.
F. Acceptance of rent after notice to pay or vacate
Wis. Stat. §799.40(1m) reads a follows: Acceptance of rent or other payment. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed because the landlord accepts past due rent or any other payment from the tenant after serving notice of default or after commencing the action.
G. Avoiding Illegal Evictions
Retaliatory conduct in residential tenancies prohibited under Wis. Stat. §704.45 (1) Except as provided in sub. (2), a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises, refuse to renew a lease or threaten any of the foregoing, if there is a preponderance of evidence that the action or inaction would not occur but for the landlord's retaliation against the tenant for doing any of the following:
a) Making a good faith complaint about a defect in the premises to an elected public official or a local housing code enforcement agency.
(b) Complaining to the landlord about a violation of s.704.07 or a local housing code applicable to the premises.
(c) Exercising a legal right relating to residential tenancies.
(2) Notwithstanding sub. (1), a landlord may bring an action for possession of the premises if the tenant has not paid rent other than a rent increase prohibited by sub. (1).
(3) This section does not apply to complaints made about defects in the premises caused by the negligence or improper use of the tenant who is affected by the action or inaction.
You need to be aware of another provisions. ATCP §134.0 (5) deals with retaliatory evictions. It reads as follows:
No landlord shall terminate a tenancy or give notice preventing the automatic renewal of a lease, or constructively evict a tenant by any means including the termination or substantial reduction of heat, water or electricity to the dwelling unit, in retaliation against a tenant because the tenant has:(a) reported a violation of this chapter or a building or housing code to any governmental authority, or filed suit alleging such violation; or (b) joined or attempted to organize a tenant’s union or association; or (c) asserted, or attempted to assert any right specifically accorded to tenants under state or local law. With respect to self-help evictions, ATCP 134.09(7) states as follows: “[n]o landlord may exclude, forcibly evict, or constructively evict a tenant from a dwelling unit other than by an eviction procedure specified under Chapter 799.”
H. Bringing the Case to Trial
Chapter 799 covers evictions and all evictions take place in small claims court. There is a statewide mandate summons and complaint form that must be used. (It is one document). Even though it is a state mandated form, you still need to check your county’s procedure because counties such as Dane and Milwaukee have modified the mandatory form. You will also have to file an affidavit of non-military service. §799.06(2) says a person may commence and prosecute or defend an action or proceeding under this chapter and may appear in his, her, or its own proper person or by an attorney regularly authorized to practice in the courts of this state. Under this subsection, a person is considered to be acting in his, her, or its own proper person if the appearance is by a member, as defined in s. 183.0102 (15), agent, or authorized employee of the person, or by an agent of the member or an authorized employee of the agent. An assignee of any cause of action under this chapter shall not appear by a full-time authorized employee, unless the employee is an attorney regularly authorized to practice in the courts of this state.
The procedure for serving the summons and complaint has been changed. §799.42 says, “the complaint shall be served with the summons when service is had under s. 799.12 (1), (2), or (3).” Even though mail service is allowed, I still suggest personal service.
You need to state the reason why you are evicting the tenant and attach the appropriate documents.
In some counties you can sue to evict the tenant and also for any unpaid rent or damages. In Dane County, and some other counties, the eviction action is held first and then to sue for rent and damages. You may have to wait until you know the full amount of rent and damages. You then go to the clerk of court and ask for the forms to collect these amounts. It is not a separate action, but rather a continuation of the eviction action. Most importantly, you do not have to pay an additional filing fee.
If you need to have a witness testify, you need to make the necessary arrangements. Even though a witness can testify by telephone, it is better to have the witness at the hearing. If you are going to have the witness appear by phone, make sure you contact the court in advance to make the appropriate arrangements. When you come to the hearing, bring all your documents. This means that when you send the tenant a document, you have to make sure you keep a copy. It would also help to have proof you sent the tenant the documents in case the tenant claims the documents were not received.
If you prevail, the court will issue a Writ of Restitution. New is the amendment of §799.44(2). Once the court orders judgment for restitution of the premises, the court shall immediately order the Writ to be issued. This Writ allows for removal of the tenant and the tenant’s possessions. Next, you need to work with the sheriff to establish a time for the tenant to move out. The amount of time to move out varies by judge and by county.
There is a statutory procedure for a short stay of the Writ. The court may, in cases where it determines hardship to exist, stay the issuance of the writ by a period not to exceed 30 days from the date of the order for judgment. Any such stay shall be conditioned upon the defendant paying all rent or other charges due and unpaid at the entry of judgment and upon the defendant paying the reasonable value of the occupancy of the premises, including reasonable charges, during the period of the stay upon such terms and at such times as the court directs. How this interacts with the requirement for an immediate issuance of the writ is let to be determined.
The court may further require the defendant, as a condition of such stay, to give a bond in such amount and with such sureties as the court directs, conditioned upon the defendant's faithful performance of the conditions of the stay.
Upon the failure of the defendant to perform any of the conditions of the stay, the plaintiff may file an affidavit executed by the plaintiff or attorney, stating the facts of such default, and the writ of restitution may forthwith be issued.
I. What Defense Does the Tenant Have?
Wis. Stat. §799.43 establishes what the defendant may plead in an eviction action. “The defendant may plead to the complaint orally or in writing, except that if the plaintiff's title is put in issue by the defendant, the answer shall be in writing and subscribed in the same manner as the complaint. Within the limitation of s.799.02 the defendant may counterclaim provided that in construing s.799.02 as applied to eviction actions, any claim related to the rented property shall be considered as arising out of the transaction or occurrence which is the subject matter of the plaintiff's claim.” The Defendant can also claim the eviction is either a retaliatory or self-help eviction. The Defendant can also challenge the whether the Plaintiff followed the statutory notice, service and other requirements for both the eviction and the commencement of the law suit.
Counterclaims relating to oral agreements to pay increased rent, unfair trade practices, oral guarantees and interference with quiet enjoyment were properly dismissed as extrinsic to a lease. Scalzo v. Anderson, 87 Wis.2d 834, 275 N.W.2d 894 (1979). A tenant raising a constructive eviction defense is required to abandon the premises within a reasonable time of \"any disturbance,\" not necessarily prior to any proceedings. In Schaaf v. Nortman, 19 Wis.2d 540, 543-44, 120 N.W.2d 654, 656-57 (1963), the court explained the defense of constructive eviction: \"`It is now well established that any disturbance of the tenant's possession by the landlord, . . . which renders the premises unfit for occupancy for the purposes for which they were demised or which deprives the tenant of the beneficial enjoyment of the premises, causing him to abandon them, amounts to a constructive eviction, provided the tenant abandons the premises within a reasonable time.'\" (Italics in the original).