Landlord-tenant Law for Brown Bag Lunch
Marquette Law School
Legal Action of Wisconsin, Inc., VLP
September 10, 2009
I. Sources of law. Most Wisconsin authority will be found in:
A. Wis. Stat. Ch. 704 (Landlord-tenant law).
B. Wis. Stat. Ch. 799 (Small Claims Procedure).
C. ATCP Ch. 134 (Residential Trade Practices - Dept. of
Agriculture, Trade and
Consumer Protection). (Available at www.datcp.state.wi.us).
II. Disclosure requirements of landlord. (ATCP 134.04).
A. In writing, before or at time a rental agreement is entered into:
(1) The name and address of person(s) authorized to collect
rent, manage the property and be readily
(2) The owner of the premises or other person authorized to
service of legal process and other notices.
B. Before entering into a rental agreement or accepting any
earnest money or
(1) All uncorrected building and housing code violations of
which the landlord has received notice and which affect
the dwelling unit and common areas.
(2) These conditions: no cold or hot water, heating facilities
not safe or can
not maintain at least 67 F, no electricity or
system unsafe, structural or other conditions
substantial hazard or unreasonable risk of personal
injury, plumbing services or sewage disposal not in
good operating condition.
C. Before entering into a rental agreement or accepting earnest
money or security deposit:
(1) If utilities charges are not included in the rent.
(2) If units and common areas not separately metered, the
basis on which charges will be
allocated among the dwelling units.
D. Before accepting a security deposit or converting an earnest
money deposit to security deposit, notify the tenant in
writing that the tenant may, within 7 days after the start
of the tenancy, (ATCP 134.06):
(1) Inspect the dwelling unit and notify the landlord of
(2) Request a list of damages/defects charged to previous
III. Termination of tenancy. (See, Wis. Stat. Ch. 704). Termination
needed prior to eviction action.
A. What kind of tenancy?
Periodic (usually, month-to-month).
Tenancy at will (possession with permission but no rent
termination agreement. (See chart attached).
C. To terminate a lease for one-year or less:
(1). 5-day right-to-cure notice.
(2). If a subsequent breach within 12 months of breach
then 14-day (non right-to-cure). 14-day must
be for the same category of breach for which the 5-day
was given. The two categories are (a)nonpayment of rent,
(b)any other kind of breach.
(3). Drug nuisance notice.
(a). Non-right to cure 5-day.
(b). Must be letter from a law enforcement agency alleging
(4). 5-day non-right-to-
new Wis. Stat. § 704.16.
D. To terminate a periodic tenancy.
(1). Nonpayment of rent: 5-day right to cure or a 14-day
(2). Breach other than nonpayment: 14-day. (Note: many
landlords give a 5-day for a nonpayment
breach, contrary to statute. See, Wis. Stat.
(3). 28-day notice no reason is ne
(4). Drug nuisance notice. (See above).
(5). 5-day non-right-to-
under new Wis. Stat.
E. To terminate a tenancy at will.
(1). 28-day usually.
(2). Rarely, when there is some agreement for the tenant to
perform some act, (upkeep, for example), a 14-day may be
used, (per caselaw).
(3). 5-day non-right-to-
under new Wis. Stat.
A. Rent withholding as distinguished from rent abatement.
a third party or a procedure. See, Wis.
Stat. § 704.07(4).
(2). It is very helpful, although not required, to have the
assistance of an agency such
as Community Advocates to assist with rent abatement.
- To inspect the premises
- To advise the tenant of the proper amount to abate
- To provide an abatement letter to the landlord
- To provide a witness for court
Department of Neighborhood Services (DNS).
- The tenant pays rent into the program, (upon approval
by the DNS).
- The landlord gets the money from DNS upon completing
(4). A tenant may abate and withhold with DNS for the
704.07(4) means abate, and a tenant may
not abate 100% of the rent and remain in possession.
B. Advise client of building inspector (DNS), abatement,
(1). See Community Resources handout
(2). Community Advocates prefers to conduct its inspection
(3). Any code violations are available online, at the DNS
V. Residential tenants and prospective residential tenants whose
landlords are in foreclosure have protections under new state
and federal laws which went into effect in 2009. (See, Wis.
Stat. §§ 704.35, and 846.35 and Public L. No. 111-22 (2009).
(See, Wis. Stat. Ch. 799)
VI. Return date.
they are scheduled for 2:00 p.m., Mon. through Fri., in
Room 400 of the Milwaukee County
Courthouse, 901 N. 9th Street, Milwaukee, Wisconsin.
B. A written answer not necessary, under statute, unless ownership
is in question. However, it is usually
helpful to have written answer even if
ownership is not in question. (Note: Wis. Stat. § 803.01(1) states
that an action may not be dismissed for failure
to name the real party in interest until a reasonable
amount of time has been allowed after objection).
C. The case will be called by the clerk. Approach the bench and
state your appearance. File any
written answer or motion that you have prepared, and
serve a file-stamped copy on the plaintiff. The plaintiff must
file the affidavits of service (of the
termination notice and the summons and complaint) as well
as the termination notice.
D. The commissioner will call the case and discuss it briefly with
the parties or attorney(s). Often the
commissioner will explore the possibility of a stipulation
to resolve the case. Note: If a defendant appears on the return date in
case must be scheduled for trial before
a judge, (unless there is a stipulation or adjournment). See,
Wis. Stat. § 799.206(3). Inform the Commissioner of an
Emergency Assistance (EA)
application, which will stay the eviction proceedings.
See, Wis. Stat. § 799.40(4).
E. The commissioner will schedule a trial date (which will be
before the small claims judge) if there is no
agreement between the parties to adjourn or
resolve the case by stipulation. The available trial dates/times
are on a clipboard, with yellow pages,
behind the clerk (in Room 400). Eviction trials
are held in the afternoon.
A. Trials in Milwaukee County are in Room 409. (Yearly
rotation). The current small claims judge is the
Hon. John Siefert.
B. Proceedings are governed by Wis. Stat. Ch. 799. Also, except
as otherwise provided in Ch. 799, the general
rules of practice and procedure in chs. 750 to 758 and
801 to 847 apply. The rules of evidence do not apply except those
relating to privileges under Ch. 905 or to
admissibility under § 901.05. The court shall
admit all other evidence having reasonable probative value, but
may exclude irrelevant or repetitious evidence or
arguments. An essential finding of fact may
statement unless it would be admissible under the rules of
evidence. See, § 799.209.
C. After the judge calls the case and parties/attorneys state their
appearances the judge will usually request a
summary of the case status and defenses. Inform
the judge of your defenses as well as any motions. Be sure to
inform the judge of an EA application and request
a stay of proceedings. The judge will usually request
a copy of the EA application or letter from the EA agency
indicating that an application has been made.
D. If an eviction judgment is granted you may request, under
certain circumstances, a
Summary of Notices to Terminate
Tenancies in Wisconsin
Safe Nuisance 5-day 14-day 28-day 30-day
Housing Notice Notice Notice Notice Notice
Wis. Stat. Wis. Stat. Wis. Stat. Wis. Stat. Wis. Stat. Wis. Stat.
§ § 704.17 § 704.17 § 704.17 § § 704.17
704.16 (1)( c), (1)(a), (1)(a), 704.19(3) (3)(a)
(2)(c), (2)(a) (1)(b)
No right to No right to Right to No right to No right to Right to
cure cure cure cure cure cure
Notice Notice Notice Notice Notice
notice to period period period period period
landlord at least 5 at least 5 at least 14 at least 28 at least 30
no notice days. days. days. days, for days.
notice to periodic
offending tenancy or
tenant tenancy at
at least 5 will.
To To To To To To
terminate terminate terminate terminate terminate terminate
periodic periodic periodic month-to- month-to- a lease for
tenancy or tenancy or tenancy month month more than
lease. lease. for periodic periodic one year
nonpayme tenancy tenancy or for rent or
nt of rent. for rent or tenancy at non-rent
non-rent will. related
To related breach.
lease (for No reason
one year To necessary
or less), terminate for
for rent or lease (for terminatio
non-rent one year n.
related or less), for
breach. rent or
Prepared by Legal Action of Wisconsin, Inc. (2009), with funding from the Legal Services Corporation,
Prepared by Legal Action of Wisconsin, Inc., on behalf of low-income clients and was funded by
the Legal Services Corporation, Washington, D.C. 2009. Any opinions expressed herein are those of the
authors and should not be construed as those of the Legal Services Corporation.