Chapter 704

704.02 704.02 Severability of rental agreement provisions. The provisions of a rental agreement are severable. If any provision of a rental agreement is rendered void or unenforceable by reason of any statute, rule, regulation, or judicial order, the invalidity or unenforceability of that provision does not affect other provisions of the rental agreement that can be given effect without the invalid provision.

704.02 History History: 2011 a. 143.

704.03 704.03 Requirement of writing for rental agreements and termination.

704.03(1) (1) Original agreement. Notwithstanding s. 704.02, a lease for more than a year, or a contract to make such a lease, is not enforceable unless it meets the requirements of s. 706.02 and in addition sets forth the amount of rent or other consideration, the time of commencement and expiration of the lease, and a reasonably definite description of the premises, or unless a writing, including by means of electronic mail or facsimile transmission, signed by the landlord and the tenant sets forth the amount of rent or other consideration, the duration of the lease, and a reasonably definite description of the premises and the commencement date is established by entry of the tenant into possession under the writing. Sections 704.05 and 704.07 govern as to matters within the scope of such sections and not provided for in such written lease or contract.

704.03(2) (2) Entry under unenforceable lease. If a tenant enters into possession under a lease for more than one year which does not meet the requirements of sub. (1), and the tenant pays rent on a periodic basis, the tenant becomes a periodic tenant. If the premises in such case are used for residential purposes and the rent is payable monthly, the tenant becomes a month-to-month tenant; but if the use is agricultural or nonresidential, the tenant becomes a year-to-year tenant without regard to the rent-payment periods. Except for duration of the tenancy and matters within the scope of ss. 704.05 and 704.07, the tenancy is governed by the terms and conditions agreed upon. Notice as provided in s. 704.19 is necessary to terminate such a periodic tenancy.

704.03(3) (3) Assignment. An assignment by the tenant of a leasehold interest which has an unexpired period of more than one year is not enforceable against the assignor unless the assignment is in writing reasonably identifying the lease and signed by the assignor; and any agreement to assume the obligations of the original lease which has an unexpired period of more than one year is not enforceable unless in writing signed by the assignee.

704.03(4) (4) Termination of written lease prior to normal expiration date. An agreement to terminate a tenancy more than one year prior to the expiration date specified in a valid written lease is not enforceable unless it is in writing signed by both parties. Any other agreement between the landlord and tenant to terminate a lease prior to its normal expiration date, or to terminate a periodic tenancy or tenancy at will without the statutory notice required by s. 704.19 may be either oral or written. Nothing herein prevents surrender by operation of law.

704.03(5) (5) Proof. In any case where a lease or agreement is not in writing signed by both parties but is enforceable under this section, the lease or agreement must be proved by clear and convincing evidence.

704.03 History History: 1993 a. 486; 2011 a. 143.

704.03 Cross-reference Cross-reference: See also ss. ATCP 134.03, 134.04, 134.08, and 134.09 Wis. adm. code.

704.03 Annotation If there is no written lease, s. 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 s. 704.07, the obligation must be in a written lease signed by both parties. Halverson v. River Falls Youth Hockey Ass’n, 226 Wis. 2d 105, 593 N.W.2d 895 (Ct. App. 1999), 98-2445.

704.05 704.05 Rights and duties of landlord and tenant in absence of written agreement to contrary.

704.05(1) (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. Except as otherwise provided in this section, this section applies to any tenancy.

704.05(2) (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 premises 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.

704.05(3) (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.

704.05(4) (4) Tenant’s fixtures. 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 subsection applies to any fixtures added by the tenant for 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.

704.05(5) (5) Disposition of personalty left by tenant.

704.05(5)(a) (a) At the landlord’s discretion.

704.05(5)(a)1. 1. If a tenant removes from or is evicted from the premises and leaves personal property, the landlord may presume, in the absence of a written agreement between the landlord and the tenant to the contrary, that the tenant has abandoned the personal property and may, subject to par. (am) and s. 799.45 (3m), dispose of the abandoned personal property in any manner that the landlord, in its sole discretion, determines is appropriate.

704.05(5)(a)2. 2. If the landlord disposes of the property by private or public sale, the landlord may send the proceeds of the sale minus any costs of sale and any storage charges if the landlord has first stored the personalty to the department of administration for deposit in the appropriation under s. 20.505 (7) (h).

704.05(5)(am) (am) Exception for medical items. If the personal property that the tenant leaves behind is prescription medication or prescription medical equipment, the landlord shall hold the property for 7 days from the date on which the landlord discovers the property. After that time, the landlord may dispose of the property in the manner that the landlord determines is appropriate, but shall promptly return the property to the tenant if the landlord receives a request for its return before the landlord disposes of it.

704.05(5)(b) (b) Notice required if property is a manufactured or mobile home or a vehicle.

704.05(5)(b)1. 1. In this paragraph:

704.05(5)(b)1.a. a. “Manufactured home” has the meaning given in s. 101.91 (2).

704.05(5)(b)1.b. b. “Mobile home” has the meaning given in s. 101.91 (10), but does not include a recreational vehicle, as defined in s. 340.01 (48r).

704.05(5)(b)1.c. c. “Titled vehicle” means a vehicle, as defined in s. 340.01 (74), for which a certificate of title has been issued by any agency of this state or another state.

704.05(5)(b)2. 2. If the tenant removes from or is evicted from the premises and leaves behind personal property that is a manufactured home, mobile home, or titled vehicle, before disposing of the abandoned property the landlord shall give notice of the landlord’s intent to dispose of the property by sale or other appropriate means to all of the following:

704.05(5)(b)2.a. a. The tenant, personally or by regular or certified mail addressed to the tenant’s last-known address.

704.05(5)(b)2.b. b. Any secured party of which the landlord has actual notice, personally or by regular or certified mail addressed to the secured party’s last-known address.

704.05(5)(bf) (bf) Notice that landlord will not store property. If the landlord does not intend to store personal property left behind by a tenant, except as provided in par. (am), the landlord shall provide written notice to a tenant, when the tenant enters into or renews a rental agreement, that the landlord will not store any items of personal property that the tenant leaves behind when the tenant removes from, or if the tenant is evicted from, the premises, except as provided in par. (am). Notwithstanding pars. (a), (am), and (b), if the landlord has not provided to a tenant the notice required under this paragraph, the landlord shall comply with s. 704.05, 2009 stats., with respect to any personal property left behind by the tenant when the tenant removes from the premises, or if the tenant is evicted from the premises and the landlord notifies the sheriff under s. 799.45 (3m).

704.05(5)(c) (c) Rights of 3rd persons. The landlord’s power to dispose as provided by this subsection applies to any property left on the premises by the tenant, whether owned by the tenant or by others. The power to dispose under this subsection applies notwithstanding any rights of others existing under any claim of ownership or security interest, but is subject to s. 321.62. The tenant or any secured party has 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 any expenses that the landlord has incurred with respect to the disposition of the property.

704.05(5)(cm) (cm) Inapplicability to self-storage facilities. This subsection does not apply to a lessee of a self-storage unit or space within a self-storage facility under s. 704.90.

704.05 History History: 1993 a. 374, 486; 2001 a. 16; 2003 a. 33; 2005 a. 253; 2011 a. 32, 143; 2013 a. 76.

704.05 Annotation Any act of the landlord that so interferes with the tenant’s enjoyment or possession of the premises as to render them unfit for occupancy for the purposes for which they were leased is an eviction releasing the tenant from the obligation to pay rent. First Wisconsin Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258, 286 N.W.2d 360 (1980).

704.05 Annotation An allegation in a lessee’s complaint that the premises were undamaged did not relieve the lessor of the burden to prove damages. Rivera v. Eisenberg, 95 Wis. 2d 384, 290 N.W.2d 539 (Ct. App. 1980).

704.05 Annotation Landlords’ liability for defective premises: caveat lessee, negligence, or strict liability? Love. 1975 WLR 19.

704.05 Annotation How Wisconsin Circuit Courts Can Ensure Proper Service in Eviction Actions After 2013 Wisconsin Act 76. Ahrendt. 2014 WLR 1201.

704.055 704.055 Disposition of personalty left by trespasser.

704.055(1) (1) Definition. In this section, “trespasser” means a person who is not a tenant and who enters or remains in residential rental property without the consent of the landlord or another person lawfully on the property.

704.055(2) (2) At the landlord’s discretion.

704.055(2)(a) (a) If a trespasser is removed or otherwise removes from residential rental property and leaves personal property, the landlord shall hold the personal property for 7 days from the date on which the landlord discovers the personal property. After that time, the landlord may presume that the trespasser has abandoned the personal property and may dispose of the personal property in any manner that the landlord, in the landlord’s sole discretion, determines is appropriate but shall promptly return the personal property to the trespasser if the landlord receives a request for its return before the landlord disposes of it.

704.055(2)(b) (b) If the landlord disposes of the abandoned personal property by private or public sale, the landlord may send the proceeds of the sale minus any costs of sale and, if the landlord has first stored the personal property, minus any storage charges to the department of administration for deposit in the appropriation under s. 20.505 (7) (h).

704.055(3) (3) Rights of 3rd persons. The landlord’s power to dispose as provided by this section applies to any personal property left on the landlord’s property by the trespasser, whether owned by the trespasser or by others. The power to dispose under this section applies notwithstanding any rights of others existing under any claim of ownership or security interest. The trespasser, other owner, or any secured party has the right to redeem the personal property at any time before the landlord has disposed of it or entered into a contract for its disposition by payment of any expenses that the landlord has incurred with respect to the disposition of the personal property.

704.055 History History: 2015 a. 176.

704.06 704.06 Water heater thermostat settings. A landlord of premises which are subject to a residential tenancy and served by 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.

704.06 History History: 1987 a. 102.

704.07 704.07 Repairs; untenantability.

704.07(1) (1) Application of section. This section applies to any nonresidential tenancy if there is no contrary provision in writing signed by both parties and to all residential tenancies. An agreement to waive the requirements of this section in a residential tenancy, including an agreement in a rental agreement, is void. Nothing in this section is intended to affect rights and duties arising under other provisions of the statutes.

704.07(2) (2) Duty of landlord.

704.07(2)(a) (a) Except for repairs made necessary by the negligence of, or improper use of the premises by, the tenant, the landlord has a duty to do all of the following:

704.07(2)(a)1. 1. Keep in a reasonable state of repair portions of the premises over which the landlord maintains control.

704.07(2)(a)2. 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.

704.07(2)(a)3. 3. Make all necessary structural repairs.

704.07(2)(a)4. 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.

704.07(2)(a)5. 5. For a residential tenancy, comply with any local housing code applicable to the premises.

704.07(2)(b) (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).

704.07(2)(bm) (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:

704.07(2)(bm)1. 1. The landlord has actual knowledge of the violation.

704.07(2)(bm)2. 2. The violation affects the dwelling unit that is the subject of the prospective rental agreement or a common area of the premises.

704.07(2)(bm)3. 3. The violation presents a significant threat to the prospective tenant’s health or safety.

704.07(2)(bm)4. 4. The violation has not been corrected.

704.07(2)(c) (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.

704.07(3) (3) Duty of tenant.

704.07(3)(a) (a) 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. Reasonable costs include any of the following:

704.07(3)(a)1. 1. Materials provided or labor performed by the landlord.

704.07(3)(a)2. 2. At a reasonable hourly rate, time the landlord spends doing any of the following:

704.07(3)(a)2.a. a. Purchasing or providing materials.

704.07(3)(a)2.b. b. Supervising an agent of the landlord.

704.07(3)(a)2.c. c. Hiring a 3rd-party contractor.

704.07(3)(b) (b) Except for residential premises subject to a local housing 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.

704.07(3)(c) (c) A tenant in a residential tenancy shall comply with a local housing code applicable to the premises.

704.07(4) (4) Untenantability. 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 of sub. (2) 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 sub. (2) materially affecting the health or safety of the tenant; or 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 and the condition materially affects the health or safety of the tenant or substantially affects the use and occupancy of the premises, rent abates to the extent the tenant is deprived of the full normal use of the premises. This section 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. This subsection is inapplicable if the damage or condition is caused by negligence or improper use by the tenant.

704.07(5) (5) Restriction of regulation of abatement. An ordinance enacted by a city, town, village, or county regulating abatement of rent shall permit abatement only for conditions that materially affect the health or safety of the tenant or substantially affect the use and occupancy of the premises.

704.07 History History: 1981 c. 286; 1993 a. 213, 486, 491; 2001 a. 103; 2011 a. 143; 2013 a. 76; 2017 a. 317.

704.07 Annotation The remedy provided to the lessor by sub. (3) does not exclude diminution of market value as an alternative method of computing damages, and although the former is to be preferred where the property is easily repairable and the latter where the injury does not destroy the property, evidence of each method may be introduced by either party with the lesser amount awardable as the proper measure of damages. Laska v. Steinpreis, 69 Wis. 2d 307, 231 N.W.2d 196 (1975).

704.07 Annotation A landlord must exercise ordinary care toward tenants and others on leased premises with permission. Pagelsdorf v. Safeco Insurance Co. of America, 91 Wis. 2d 734, 284 N.W.2d 55 (1979).

704.07 Annotation Sub. (3) (a) requires a tenant to pay for damage that the tenant negligently causes to a landlord’s property regardless of whether the landlord or landlord’s insurer initially pays for the damage. Bennett v. West Bend Mutual Insurance Co., 200 Wis. 2d 313, 546 N.W.2d 204 (Ct. App. 1996), 95-2673.

704.07 Annotation If there is no written lease, this section 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 this section, the obligation must be in a written lease signed by both parties. Halverson v. River Falls Youth Hockey Ass’n, 226 Wis. 2d 105, 593 N.W.2d 895 (Ct. App. 1999), 98-2445.

704.07 Annotation Sub. (2) does not authorize an independent cause of action for defective conditions that do not rise to the level of a health or safety hazard, but are nonetheless the result of the failure of a landlord to maintain equipment in a reasonable state of repair. Sub. (4) is the exclusive remedy for violations of sub. (2). Zehner v. Village of Marshall, 2006 WI App 6, 288 Wis. 2d 660, 709 N.W.2d 64, 04-2789.

704.07 Annotation Sub. (2) (a) 3. does not require the landlord to make all structural repairs, only all necessary structural repairs, and implies that the landlord will have some notice of the defect, latent or obvious, so that he or she can evaluate whether a repair is, in fact, a necessary repair. Raymaker v. American Family Mutual Insurance Co., 2006 WI App 117, 293 Wis. 2d 392, 718 N.W.2d 154, 05-1557.

704.07 Annotation Nothing in the history of the section suggests any intent by the legislature to impose negligence per se for a violation of this section. Rather, the legislature intended only to alter the common law rule to make the landlord and tenant more evenly share the duties of repair. Sub. (4) provides the tenant with the remedy of rent abatement if the landlord fails to fulfill his or her repair duties and to the extent the tenant is deprived of use of the premises, but this section does not provide a private cause of action. Raymaker v. American Family Mutual Insurance Co., 2006 WI App 117, 293 Wis. 2d 392, 718 N.W.2d 154, 05-1557.

704.07 Annotation An appliance that cannot be used as intended without creating a risk of fire or electrocution is not in reasonable working condition and constitutes a substantial violation materially affecting the health or safety of the tenant under sub. (4), entitling the tenant to rent abatement. Boelter v. Tschantz, 2010 WI App 18, 323 Wis. 2d 208, 779 N.W.2d 467, 09-1011.

704.07 Annotation Section 66.0104 (2) (d) 1. a. preempted a provision in an ordinance requiring landlords to notify tenants of city inspections under the city’s inspection and registration program; it does not stop local governments from implementing rental housing inspection and registration programs as part of a housing code, let alone preclude other substantive housing code regulations. Olson v. City of La Crosse, 2015 WI App 67, 364 Wis. 2d 615, 869 N.W.2d 537, 15-0127.

704.07 Annotation The term “repair” does not extend to routine cleaning. Thus cleaning carpets at the end of a tenancy does not fall within the sphere of duties assigned to landlords under sub. (2). Because carpet cleaning is not a landlord’s legally-prescribed duty, including a provision in a residential rental agreement requiring the tenant to have carpets professionally cleaned does not waive the landlord’s legal obligation. This section is silent with regard to the imposition of cleaning responsibilities, as distinct from repairs, leaving the parties free to assign responsibilities through lease provisions. OAG 4-13.

704.07 Annotation Landlord and tenant law — the implied warranty of habitability in residential leases. 58 MLR 191.

704.07 Annotation Landlord no longer immune from tort liability for failure to exercise reasonable care in maintaining premises. 64 MLR 563 (1981).

704.07 Annotation Landlords’ liability for defective premises: caveat lessee, negligence, or strict liability? Love. 1975 WLR 19.

704.08 704.08 Check-in sheet. A landlord shall provide to a new residential tenant when the tenant commences his or her occupancy of the premises a check-in sheet that the tenant may use to make comments, if any, about the condition of the premises. The tenant shall be given 7 days from the date the tenant commences his or her occupancy to complete the check-in sheet and return it to the landlord. The landlord is not required to provide the check-in sheet to a tenant upon renewal of a rental agreement. This section does not apply to the rental of a plot of ground on which a manufactured home, as defined in s. 704.05 (5) (b) 1. a., or a mobile home, as defined in s. 704.05 (5) (b) 1. b., may be located.

704.08 History History: 2011 a. 143; 2013 a. 76.