Chapter ATCP 134

Ch. ATCP 134 Note Note: This chapter is adopted under authority of s. 100.20 (2), Stats., and is administered by the Wisconsin department of agriculture, trade and consumer protection. Violations of this chapter may be prosecuted under s. 100.20 (6), 100.26 (3) or (6), Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys’ fees.

ATCP 134.01 ATCP 134.01 Scope and application. This chapter is adopted under authority of s. 100.20, Stats. This chapter applies to the rental of dwelling units located in this state, but does not apply to the rental or occupancy of any of the following:

ATCP 134.01(1) (1) A dwelling unit operated by a public or private institution if occupancy is incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar services.

ATCP 134.01(2) (2) A dwelling unit occupied by a member of a fraternal or social organization which operates that dwelling unit.

ATCP 134.01(3) (3) A dwelling unit occupied, under a contract of sale, by the purchaser of the dwelling unit or the purchaser’s successor in interest.

ATCP 134.01(4) (4) A dwelling unit, such as a dwelling unit in a hotel, motel or boarding house, that is being rented only by tourist or transient occupants.

ATCP 134.01(5) (5) A dwelling unit which the landlord provides free of charge to any person, or which the landlord provides as consideration to a person whom the landlord currently employs to operate or maintain the premises.

ATCP 134.01(6) (6) A dwelling unit occupied by a tenant who is engaged in commercial agricultural operations on the premises.

ATCP 134.01(7) (7) A dwelling unit owned and operated by government, or a subdivision or agency of government.

ATCP 134.01 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80; am. (intro.), (1) to (6), Register, December, 1998, No. 516, eff. 1-1-99; am. (7), Register, June, 1999, No. 522, eff. 7-1-99.

ATCP 134.02 ATCP 134.02 Definitions.

ATCP 134.02(1) (1) “Building and housing codes” means laws, ordinances, or governmental regulations concerning the construction, maintenance, habitability, operation, occupancy, use or appearance of any premises or dwelling unit.

ATCP 134.02(1m) (1m) “Consumer credit report” has the meaning given for “consumer report” in 15 USC 1681a(d).

ATCP 134.02(1r) (1r) “Consumer reporting agency that compiles and maintains files on consumers on a nationwide basis” has the meaning given in 15 USC 1681a(p), and includes the agency’s contract affiliates.

ATCP 134.02(2) (2) “Dwelling unit” means a structure or that part of a structure that is primarily used as a home, residence, or place of abode. The term includes a manufactured home as defined in s. ATCP 125.01 (1s) or site as defined in s. ATCP 125.01 (7).

ATCP 134.02(3) (3) “Earnest money deposit” means the total of any payments or deposits, however denominated or described, given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for having a rental agreement considered by a landlord. “Earnest money deposit” does not include a fee which a landlord charges for a credit check in compliance with s. ATCP 134.05 (3).

ATCP 134.02(5) (5) “Landlord” means the owner or lessor of a dwelling unit under any rental agreement, and any agent acting on the owner’s or lessor’s behalf. The term includes sublessors, other than persons subleasing individual units occupied by them.

ATCP 134.02(6) (6) “Lease” means a lease as defined in s. 704.01 (1), Stats.

ATCP 134.02(7) (7) “Owner” means one or more persons, jointly or severally, vested with all or part of the legal title to the premises or all or part of the beneficial ownership and right to present use and enjoyment of the premises. The term includes a mortgagee in possession.

ATCP 134.02(8) (8) “Person” means an individual, partnership, corporation, association, estate, trust, and any other legal or business entity.

ATCP 134.02(9) (9) “Premises” means the property covered by the lease, including not only the realty and fixtures, but also any personal property furnished with the realty.

ATCP 134.02(10) (10) “Rental agreement” means an oral or written agreement between a landlord and tenant, for the rental or lease of a specific dwelling unit or premises, in which the landlord and tenant agree on the essential terms of the tenancy, such as rent. “Rental agreement” includes a lease. “Rental agreement” does not include an agreement to enter into a rental agreement in the future.

ATCP 134.02 Note Note: By approving an individual as a prospective tenant, a landlord does not necessarily enter into a “rental agreement” with that individual, or vice-versa. A “rental agreement: (creating a tenancy interest in real estate) arises only after the parties agree on the essential terms of tenancy, including the specific dwelling unit which the tenant will occupy and the amount of rent which the tenant will pay for that dwelling unit.

ATCP 134.02(11) (11) “Security deposit” means the total of all payments and deposits given by a tenant to the landlord as security for the performance of the tenant’s obligations, and includes all rent payments in excess of 1 month’s prepaid rent.

ATCP 134.02(12) (12) “Tenant” means a person occupying, or entitled to present or future occupancy of a dwelling unit under a rental agreement, and includes persons occupying dwelling units under periodic tenancies and tenancies at will. The term applies to persons holding over after termination of tenancy until removed from the dwelling unit by sheriff’s execution of a judicial writ of restitution issued under s. 799.44, Stats. It also applies to persons entitled to the return of a security deposit, or an accounting for the security deposit.

ATCP 134.02(13) (13) “Tenancy” means occupancy, or a right to present occupancy under a rental agreement, and includes periodic tenancies and tenancies at will. The term does not include the occupancy of a dwelling unit without consent of the landlord after expiration of a lease or termination of tenancy under ch. 704, Stats.

ATCP 134.02(14) (14) “Tourist or transient occupants” means tourists or other persons who occupy a dwelling unit for less than 60 days while traveling away from their permanent place of residence.

ATCP 134.02 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80; am. (2), Register, February, 1987, No. 374, eff. 3-1-87; correction in (12) made under s. 13.93 (2m) (b) 7, Stats., Register, April, 1993, No. 448; cr. (1m), (1r) and (14), am. (3) and (10), r. (4), Register, December, 1998, No. 516, eff. 1-1-99; CR 13-027: am. (2) Register December 2013 No. 696, eff. 1-1-14; CR 14-038: am. (2), (9), (10) Register August 2015 No. 716, eff. 11-1-15.

ATCP 134.03 ATCP 134.03 Rental agreements and receipts.

ATCP 134.03(1) (1) Copies of rental agreements, rules. Rental agreements and rules and regulations established by the landlord, if in writing, shall be furnished to prospective tenants for their inspection before a rental agreement is entered into, and before any earnest money or security deposit is accepted from the prospective tenant. Copies shall be given to the tenant at the time of agreement.

ATCP 134.03(2) (2) Receipts for tenant payments.

ATCP 134.03(2)(a) (a) Immediately upon accepting any earnest money or security deposit, the landlord shall provide the tenant or prospective tenant with a written receipt for the deposit, stating the nature of the deposit and its amount. A receipt is not required where payment is made by check bearing a notation describing the purpose for which it was given, unless requested by the tenant.

ATCP 134.03(2)(b) (b) If a tenant pays rent in cash, the landlord upon receiving the cash payment shall provide the tenant with a written receipt stating the nature and amount of the payment. A landlord is not required to provide a receipt for rent payments made by check.

ATCP 134.03 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80; renum. (2) to be (2) (a), cr. (2) (b), Register, December, 1998, No. 516, eff. 1-1-99.

ATCP 134.04 ATCP 134.04 Disclosure requirements.

ATCP 134.04(1) (1) Identification of landlord or authorized agents.

ATCP 134.04(1)(a) (a) The landlord shall, except as provided under par. (c), disclose to the tenant in writing, at or before the time a rental agreement is entered into, the name and address of:

ATCP 134.04(1)(a)1. 1. The person or persons authorized to collect or receive rent and manage and maintain the premises, and who can readily be contacted by the tenant; and

ATCP 134.04(1)(a)2. 2. The owner of the premises or other person authorized to accept service of legal process and other notices and demands on behalf of the owner. The address disclosed under this subdivision shall be an address within the state at which service of process can be made in person.

ATCP 134.04(1)(b) (b) A landlord shall keep tenants informed of changes, if any, in the information required under par. (a). The landlord shall mail or deliver written notice of each change within 10 business days after the change occurs.

ATCP 134.04(1)(c) (c) This subsection does not apply to an owner-occupied structure containing no more than 4 dwelling units.

ATCP 134.04(2) (2) Code violations and conditions affecting habitability. Before entering into a rental agreement or accepting any earnest money or security deposit from the prospective tenant, the landlord shall disclose to the prospective tenant:

ATCP 134.04(2)(a) (a) Any building code or housing code violation to which all of the following apply:

ATCP 134.04(2)(a)1. 1. The landlord has actual knowledge of the violation.

ATCP 134.04(2)(a)2. 2. The violation affects the dwelling unit that is the subject of the prospective rental agreement or a common area of the premises.

ATCP 134.04(2)(a)3. 3. The violation presents a significant threat to the prospective tenant’s health or safety.

ATCP 134.04(2)(a)4. 4. The violation has not been corrected.

ATCP 134.04(2)(b) (b) The following conditions affecting habitability, the existence of which the landlord knows or could know on basis of reasonable inspection, whether or not notice has been received from code enforcement authorities:

ATCP 134.04(2)(b)1. 1. The dwelling unit lacks hot or cold running water.

ATCP 134.04(2)(b)2. 2. Heating facilities serving the dwelling unit are not in safe operating condition, or are not capable of maintaining a temperature, in all living areas of the dwelling unit, of at least 67° F (19° C) during all seasons of the year in which the dwelling unit may be occupied. Temperatures in living areas shall be measured at the approximate center of the room, midway between floor and ceiling.

ATCP 134.04(2)(b)3. 3. The dwelling unit is not served by electricity, or the electrical wiring, outlets, fixtures or other components of the electrical system are not in safe operating condition.

ATCP 134.04(2)(b)4. 4. Any structural or other conditions in the dwelling unit or premises which constitute a substantial hazard to the health or safety of the tenant, or create an unreasonable risk of personal injury as a result of any reasonably foreseeable use of the premises other than negligent use or abuse of the premises by the tenant.

ATCP 134.04(2)(b)5. 5. The dwelling unit is not served by plumbing facilities in good operating condition.

ATCP 134.04(2)(b)6. 6. The dwelling unit is not served by sewage disposal facilities in good operating condition.

ATCP 134.04(3) (3) Utility charges. If charges for water, heat or electricity are not included in the rent, the landlord shall disclose this fact to the tenant before entering into a rental agreement or accepting any earnest money or security deposit from the prospective tenant. If individual dwelling units and common areas are not separately metered, and if the charges are not included in the rent, the landlord shall disclose the basis on which charges for utility services will be allocated among individual dwelling units.

ATCP 134.04 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80; am. (1) (b), (2) (b) 1. and 2., cr. (2) (b) 5. and 6., Register, December, 1998, No. 516, eff. 1-1-99; CR 14-038: r. and recr. (2) (a) Register August 2015 No. 716, eff. 11-1-15.

ATCP 134.05 ATCP 134.05 Earnest money deposits and credit check fees.

ATCP 134.05(1) (1) Accepting an earnest money deposit. A landlord may not accept an earnest money deposit or security deposit from a rental applicant until the landlord identifies to the applicant the dwelling unit or units for which that applicant is being considered for tenancy.

ATCP 134.05 Note Note: A credit check fee authorized under sub. (4) is not an “earnest money deposit” or a “security deposit.” See definition of “earnest money deposit” under s. ATCP 134.02 (3).

ATCP 134.05(2) (2) Refunding or crediting an earnest money deposit.

ATCP 134.05(2)(a) (a) A landlord who receives an earnest money deposit from a rental applicant shall send the full deposit to the applicant by first-class mail, or shall deliver the full deposit to the applicant, by the end of the next business day after any of the following occurs:

ATCP 134.05(2)(a)1. 1. The landlord rejects the rental application or refuses to enter into a rental agreement with the applicant.

ATCP 134.05(2)(a)2. 2. The applicant withdraws the rental application before the landlord accepts that application.

ATCP 134.05(2)(a)3. 3. The landlord fails to approve the rental application by the end of the third business day after the landlord accepts the applicant’s earnest money deposit, or by a later date to which the tenant agrees in writing. The later date may not be more than 21 calendar days after the landlord accepts the earnest money deposit.

ATCP 134.05(2)(b) (b) A landlord who receives an earnest money deposit from a rental applicant shall do one of the following if the landlord enters into a rental agreement with that applicant:

ATCP 134.05(2)(b)1. 1. Apply the earnest money deposit as rent or as a security deposit.

ATCP 134.05(2)(b)2. 2. Return the earnest money deposit to the tenant.

ATCP 134.05(2)(c) (c) A person giving an earnest money deposit to a landlord does not waive his or her right to the full refund or credit owed under par. (a) or (b) merely by accepting a partial payment or credit of that amount.

ATCP 134.05(3) (3) Withholding an earnest money deposit.

ATCP 134.05(3)(a) (a) A landlord may withhold from a properly accepted earnest money deposit if the prospective tenant fails to enter into a rental agreement after being approved for tenancy, unless the landlord has significantly altered the rental terms previously disclosed to the tenant.

ATCP 134.05(3)(b) (b) A landlord may withhold from an earnest money deposit, under par. (a), an amount sufficient to compensate the landlord for actual costs and damages incurred because of the prospective tenant’s failure to enter into a rental agreement. The landlord may not withhold for lost rents unless the landlord has made a reasonable effort to mitigate those losses, as provided under s. 704.29, Stats.

ATCP 134.05 Note Note: See Pierce v. Norwick, 202 Wis. 2d 588 (1996), regarding the award of damage claims for failure to comply with provisions of this chapter related to security deposits. The same method of computing a tenant’s damages may apply to violations related to earnest money deposits.

ATCP 134.05(4) (4) Credit check fee.

ATCP 134.05(4)(a) (a) Except as provided under par. (b), a landlord may require a prospective tenant to pay the landlord’s actual cost, up to the amount specified in s. 704.085 (1) (a), Stats., to obtain a consumer credit report on the prospective tenant from a consumer reporting agency that compiles and maintains files on consumers on a nationwide basis. The landlord shall notify the prospective tenant of the charge before requesting the consumer credit report, and shall provide the prospective tenant with a copy of the report.

ATCP 134.05(4)(b) (b) A landlord may not require a prospective tenant to pay for a consumer credit report under par. (a) if, before the landlord requests a consumer credit report, the prospective tenant provides the landlord with a consumer credit report, from a consumer credit reporting agency that compiles and maintains files on consumers on a nationwide basis that is less than 30 days old.

ATCP 134.05 Note Note: Paragraph (b) does not prohibit a landlord from obtaining a more current consumer credit check at the landlord’s expense.

ATCP 134.05 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80; reprinted to correct error in (1) (a), Register, March, 1984, No.339; r. and recr., Register, December, 1998, No 516, eff. 1-1-99; CR 20-033: am. (4) (a) Register October 2021 No. 790, eff. 11-1-21; correction in (4) (a) made under s. 35.17, Stats., Register October 2021 No. 790.

ATCP 134.06 ATCP 134.06 Security deposits.

ATCP 134.06(1) (1) Check-in procedures; pre-existing damages.

ATCP 134.06(1)(a) (a) Before a landlord accepts a security deposit, or converts an earnest money deposit to a security deposit under s. ATCP 134.05, the landlord shall notify the tenant in writing that the tenant may do any of the following by a specified deadline date which is not less than 7 days after the start of tenancy:

ATCP 134.06(1)(a)1. 1. Inspect the dwelling unit and notify the landlord of any preexisting damages or defects.

ATCP 134.06(1)(a)2. 2. Request a list of physical damages or defects, if any, charged to the previous tenant’s security deposit. The landlord may require the tenant to make this request, if any, in writing.

ATCP 134.06(1)(b) (b) If a tenant makes a request under par. (a) 2., the landlord shall provide the tenant with a list of all physical damages or defects charged to the previous tenant’s security deposit, regardless of whether those damages or defects have been repaired. The landlord shall provide the list within 30 days after the landlord receives the request, or within 7 days after the landlord notifies the previous tenant of the security deposit deductions, whichever occurs later. The landlord may explain that some or all of the listed damages or defects have been repaired, if that is the case. The landlord need not disclose the previous tenant’s identity, or the amounts withheld from the previous tenant’s security deposit.

ATCP 134.06(2) (2) Returning security deposits. A landlord shall deliver or mail to a tenant the full amount of any security deposit paid by the tenant, less any amounts that may be withheld under sub. (3), within 21 days after any of the following:

ATCP 134.06(2)(a) (a) If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.

ATCP 134.06(2)(b) (b) If the tenant vacates the premises or is evicted before termination date of the rental agreement, the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

ATCP 134.06(2)(c) (c) If the tenant vacates the premises or is evicted after the termination date of the rental agreement, the date on which the landlord learns that the tenant has vacated the premises or has been removed from the premises under s. 799.45 (2), Stats.

ATCP 134.06 Note Note: A rent payment in excess of one month’s prepaid rent is considered a “security deposit” as defined under s. ATCP 134.02 (11). This chapter does not prevent a landlord from collecting more than one month’s prepaid rent. However, if the landlord holds any rent prepayment in excess of one month’s prepaid rent when the tenant surrenders the premises, the landlord must treat that excess as a “security deposit” under sub. (2).

ATCP 134.06 Note Note: See Pierce v. Norwick, 202 Wis. 2d 588 (1996), regarding the award of damage claims for failure to comply with provisions of this chapter related to security deposits and earnest money deposits.