Chapter ATCP 134

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.

ATCP 134.06(3) (3) Security deposit withholding; restrictions.

ATCP 134.06(3)(a) (a) Standard withholding provisions. When a landlord returns a security deposit to a tenant after the tenant vacates the premises, the landlord may withhold from the full amount of the security deposit only amounts reasonably necessary to pay for any of the following:

ATCP 134.06(3)(a)1. 1. Except as provided in par. (c), tenant damage, waste, or neglect of the premises.

ATCP 134.06(3)(a)2. 2. Unpaid rent for which the tenant is legally responsible, subject to s. 704.29, Stats.

ATCP 134.06(3)(a)3. 3. Payment that the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.

ATCP 134.06(3)(a)4. 4. Payment that the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant’s nonpayment.

ATCP 134.06(3)(a)5. 5. Unpaid monthly municipal permit fees assessed against the tenant by a local unit of government under s. 66.0435 (3), Stats., to the extent that the landlord becomes liable for the tenant’s nonpayment.

ATCP 134.06(3)(a)6. 6. Any other payment for a reason provided in a nonstandard rental provision document described in par. (b).

ATCP 134.06(3)(b) (b) Nonstandard rental provisions. Except as provided in par. (c), a rental agreement may include one or more nonstandard rental provisions that authorize the landlord to withhold amounts from the tenant’s security deposit for reasons not specified in par. (a) 1. to 5. Any such nonstandard rental provisions shall be provided to the tenant in a separate written document entitled “NONSTANDARD RENTAL PROVISIONS.” The landlord shall specifically identify each nonstandard rental provision with the tenant before the tenant enters into a rental agreement with the landlord. If the tenant signs his or her name, or writes his or her initials, by a nonstandard rental provision, it is rebuttably presumed that the landlord has specifically identified the nonstandard rental provision with the tenant and that the tenant has agreed to it.

ATCP 134.06 Note Note: The separate written document under par. (b) may be pre-printed.

ATCP 134.06(3)(c) (c) Normal wear and tear. This subsection does not authorize a landlord to withhold any amount from a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.

ATCP 134.06 Note Note: For example, a landlord may not withhold from tenant’s security deposit for routine painting or carpet cleaning, where there is no unusual damage caused by tenant abuse.

ATCP 134.06 Note Note: A lease may include a contractual provision requiring the tenant to pay for routine carpet cleaning. OAG 4-13. Even if the lease includes the permitted provision, the cost for routine carpet cleaning may not be collected by the landlord in advance because all prepayments in excess of one month’s rent must be treated as “security deposit.” Even if the lease includes the permitted provision, a landlord may not deduct the cost of routine carpet cleaning from the security deposit, which cannot be withheld for normal wear and tear under sub. (3).

ATCP 134.06(4) (4) Security deposit withholding; statement of claims.

ATCP 134.06(4)(a) (a) If any portion of a security deposit is withheld by a landlord, the landlord shall, within the time period and in the manner specified under sub. (2), deliver or mail to the tenant a written statement accounting for all amounts withheld. The statement shall describe each item of physical damages or other claim made against the security deposit, and the amount withheld as reasonable compensation for each item or claim.

ATCP 134.06(4)(b) (b) No landlord may intentionally misrepresent or falsify any claim against a security deposit, including the cost of repairs, or withhold any portion of a security deposit pursuant to an intentionally falsified claim.

ATCP 134.06(5) (5) Tenant failure to leave forwarding address. A landlord who has otherwise complied with this section shall not be considered in violation solely because the postal service has been unable to complete mail delivery to the person addressed. This subsection does not affect any other rights that a tenant may have under law to the return of a security deposit.

ATCP 134.06 Note Note: “Deliver” includes delivery by an agent of the landlord such as a private courier service.

ATCP 134.06 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80; r. and recr. (1) to (3), Register, December, 1998, No. 516, eff. 1-1-99; correction in (1) (a) (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1999, No. 522; correction in (3) (a) 5. made under s. 13.93 (2m) (b) 7., Stats., Register October 2004 No. 586; CR 14-038: r. and recr. (2), cr. (3) (a) (title), am. (3) (a) (intro.), 1., 3. to 6., cr. (3) (b) (title), am. (3) (b), cr. (3) (c) (title), am. (3) (c) Register August 2015 No. 716, eff. 11-1-15; correction in (2) (intro.) made under s. 35.17, Stats., Register June 2018 No. 750.

ATCP 134.07 ATCP 134.07 Promises to repair.

ATCP 134.07(1) (1) Date of completion. Every promise or representation made by a landlord to a tenant or prospective tenant to the effect that the dwelling unit or any other portion of the premises, including furnishings or facilities, will be cleaned, repaired or otherwise improved by the landlord shall specify the date or time period on or within which the cleaning, repairs or improvements are to be completed.

ATCP 134.07(2) (2) Initial promises in writing. All promises made before the initial rental agreement shall be in writing with a copy furnished to the tenant.

ATCP 134.07(3) (3) Performance; unavoidable delays. No landlord shall fail to complete the promised cleaning, repairs or improvements on the date or within the time period represented under sub. (1), unless the delay is for reason of labor stoppage, unavailability of supplies or materials, unavoidable casualties, or other causes beyond the landlord’s control. The landlord shall 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.

ATCP 134.07 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80.

ATCP 134.08 ATCP 134.08 Prohibited rental agreement provisions — rental agreement that contains certain provisions is void. Notwithstanding s. 704.02, Stats., a rental agreement is void and unenforceable if it does any of the following:

ATCP 134.08(1) (1) Allows a landlord to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services:

ATCP 134.08(1)(a) (a) Increase rent.

ATCP 134.08(1)(b) (b) Decrease services.

ATCP 134.08(1)(c) (c) Bring an action for possession of the premises.

ATCP 134.08(1)(d) (d) Refuse to renew a rental agreement.

ATCP 134.08(1)(e) (e) Threaten to take any action under pars. (a) to (d).

ATCP 134.08(2) (2) Authorizes the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799, Stats.

ATCP 134.08(3) (3) Provides for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise waives the landlord’s obligation to mitigate damages as provided under s. 704.29, Stats.

ATCP 134.08(4) (4) Requires payment by the tenant of attorney fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This subsection does not prevent a landlord or tenant from recovering costs or attorney fees under a court order under ch. 799 or 814, Stats.

ATCP 134.08(5) (5) Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

ATCP 134.08(6) (6) States that the landlord is not liable for property damage or personal injury caused by negligent acts or omissions of the landlord. This subsection does not affect ordinary maintenance obligations of a tenant under s. 704.07, Stats., or of a tenant under a rental agreement or other written agreement between the landlord and the tenant.

ATCP 134.08(7) (7) Imposes liability on a tenant for any of the following:

ATCP 134.08(7)(a) (a) Personal injury arising from causes clearly beyond the tenant’s control.

ATCP 134.08(7)(b) (b) Property damage caused by natural disasters, or by persons other than the tenant or the tenant’s guests or invitees. This paragraph does not affect ordinary maintenance obligations of a tenant under s. 704.07, Stats., or of a tenant under a rental agreement or other written agreement between the landlord and the tenant.

ATCP 134.08(8) (8) Waives any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition, or to maintain the premises during the tenant’s tenancy.

ATCP 134.08(9) (9) Allows the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property if the tenant, or someone who lawfully resides with the tenant, is a victim, as defined in s. 950.02 (4), Stats., of that crime.

ATCP 134.08(10) (10) Allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the notice required under s. 704.14, Stats.

ATCP 134.08 Note Note: A provision requiring the tenant to pay for professional carpet cleaning, in the absence of negligence or improper use by the tenant, does not render a rental agreement void under sub. (7). Because routine carpet cleaning is not a statutorily-imposed obligation of a landlord, assigning this responsibility to a tenant through a contractual provision does not render a rental agreement void. OAG 4-13.

ATCP 134.08 History History: Cr. Register, February, 1980, No. 290, eff. 5-1-80; correction in (1) and (3) made under s. 13.93 (2m), (b) 7., Stats., Register, August, 1990, No. 416; am. (7), Register, December, 1998, No. 516, eff. 1-1-99; CR 14-038: r. and recr. Register August 2015 No. 716, eff. 11-1-15.