See also s. ATCP 134.06
, Wis. adm. code.
A reasonably prudent landlord would be able to understand, by reviewing the relevant statutes and administrative code provisions that, upon withholding some or all of a tenant's security deposit, the landlord may be held criminally liable for failing to provide a tenant with a statement of withholdings. A landlord has sufficient notice that failure to comply with the requirements under s. ATCP 134.06 (4), Wis. Adm. Code, could result in a violation of s. 100.20 as an unfair business or trade practice and, therefore, could be criminally prosecuted under s. 100.26 (3). The statutory scheme is not void for vagueness and comports with due process in this regard. State v. Lasecki, 2020 WI App 36
, 392 Wis. 2d 807
, 946 N.W.2d 137
Section 704.95 prohibits the Department of Agriculture, Trade and Consumer Protection from making different any right or duty originating from this chapter. Regarding security deposits, those rights or duties in this section pertain only to the incurred costs a landlord can lawfully withhold from a tenant's security deposit and the time within which a landlord must return that deposit. Any obligation of a landlord to provide a withholdings statement to a tenant arises only under s. ATCP 134.06 (4), Wis. Adm. Code. Given that this chapter is silent on the topic of withholdings statements, nothing in s. ATCP 134.06 (4), Wis. Adm. Code, regarding withholdings statements “alters" or “makes different" anything originating from this chapter. Section 704.95 thus has no bearing on the department's rulemaking authority over that subject matter. State v. Lasecki, 2020 WI App 36
, 392 Wis. 2d 807
, 946 N.W.2d 137
Recovery of rent and damages by landlord; mitigation. 704.29(1)(1)
Scope of section.
If a tenant unjustifiably removes from the premises prior to the effective date for termination of the tenant's tenancy and defaults in payment of rent, or if the tenant is removed for failure to pay rent or any other breach of a lease, the landlord can recover rent and damages except amounts which the landlord could mitigate in accordance with this section, unless the landlord has expressly agreed to accept a surrender of the premises and end the tenant's liability. Except as the context may indicate otherwise, this section applies to the liability of a tenant under a lease, a periodic tenant, or an assignee of either.
In this subsection, “reasonable efforts" mean those steps that the landlord would have taken to rent the premises if they had been vacated in due course, provided that those steps are in accordance with local rental practice for similar properties.
In any claim against a tenant for rent and damages, or for either, the amount of recovery is reduced by the net rent obtainable by reasonable efforts to rerent the premises. In the absence of proof that greater net rent is obtainable by reasonable efforts to rerent the premises, the tenant is credited with rent actually received under a rerental agreement minus expenses incurred as a reasonable incident of acts under sub. (4)
, including a fair proportion of any cost of remodeling or other capital improvements. In any case the landlord can recover, in addition to rent and other elements of damage, all reasonable expenses of listing and advertising incurred in rerenting and attempting to rerent, except as taken into account in computing the net rent under the preceding sentence. If the landlord has used the premises as part of reasonable efforts to rerent, under sub. (4) (c)
, the tenant is credited with the reasonable value of the use of the premises, which is presumed to be equal to the rent recoverable from the defendant unless the landlord proves otherwise. If the landlord has other similar premises for rent and receives an offer from a prospective tenant not obtained by the defendant, it is reasonable for the landlord to rent the other premises for the landlord's own account in preference to those vacated by the defaulting tenant.
Burden of proof.
The landlord must allege and prove that the landlord has made efforts to comply with this section. The tenant has the burden of proving that the efforts of the landlord were not reasonable, that the landlord's refusal of any offer to rent the premises or a part thereof was not reasonable, that any terms and conditions upon which the landlord has in fact rerented were not reasonable, and that any temporary use by the landlord was not part of reasonable efforts to mitigate in accordance with sub. (4) (c)
; the tenant also has the burden of proving the amount that could have been obtained by reasonable efforts to mitigate by rerenting.
Acts privileged in mitigation of rent or damages.
The following acts by the landlord do not defeat the landlord's right to recover rent and damages and do not constitute an acceptance of surrender of the premises:
Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;
Rerenting the premises or a part thereof, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;
Use of the premises by the landlord until such time as rerenting at a reasonable rent is practical, not to exceed one year, if the landlord gives prompt written notice to the tenant that the landlord is using the premises pursuant to this section and that the landlord will credit the tenant with the reasonable value of the use of the premises to the landlord for such a period;
Any other act which is reasonably subject to interpretation as being in mitigation of rent or damages and which does not unequivocally demonstrate an intent to release the defaulting tenant.
History: 1993 a. 486
; 1995 a. 85
Acceptance of the surrender of premises terminated the lease and deprived the landlord of the right to seek future rent. First Wisconsin Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258
, 286 N.W.2d 360
A court's retention of jurisdiction to determine damages for rents not yet due is permitted. Mitigation expenses that may be recovered are limited to necessary expenses incurred and do not include compensation for time spent in mitigating damages. Kersten v. H.C. Prange Co., 186 Wis. 2d 49
, 520 N.W.2d 99
(Ct. App. 1994).
A landlord may elect to accept the surrender of premises by a tenant, which terminates any further obligation of the tenant under the lease, but which also relieves the landlord from the obligation to apply payments from the new tenant to the former tenant's unpaid rental obligations. CCS North Henry, LLC v. Tully, 2001 WI App 8
, 240 Wis. 2d 534
, 624 N.W.2d 847
Whenever a landlord does not, by word or deed, accept the surrender of leased premises following a tenant's removal, the landlord must mitigate damages by attempting to re-rent the premises. If a landlord elects to hold the tenant to the tenancy, the landlord's re-renting the premises to another cannot, standing alone, constitute an acceptance of surrender of the premises. A landlord's actions in dealing exclusively with a successor tenant, proposing a new long-term lease to the successor, accepting higher rent from the successor as called for in the proposed lease, and failing to communicate in any way to the tenant that she deemed him responsible for the remainder of the tenancy clearly evidenced an intent to accept the tenant's surrender of the premises. Vander Wielen v. Van Asten, 2005 WI App 220
, 287 Wis. 2d 726
, 706 N.W.2d 123
A landlord has an obligation to rerent when a tenant breaches a lease. Specific performance is not a proper remedy. Chi-Mil. Corp. v. W.T. Grant Co., 422 F. Supp. 46
Remedy on default in long terms; improvements. 704.31(1)(1)
If there is a default in the conditions in any lease or a breach of the covenants thereof and such lease provides for a term of 30 years or more and requires the tenant to erect or construct improvements or buildings upon the land demised at the tenant's own cost and exceeding in value the sum of $50,000, and such improvements have been made and the landlord desires to terminate the lease and recover possession of the property described therein freed from all liens, claims or demands of such lessee, the landlord may, in case of any breach or default, commence an action against the tenant and all persons claiming under the tenant to recover the possession of the premises leased and proceed in all respects as if the action was brought under the statute to foreclose a mortgage upon real estate, except that no sale of the premises shall be ordered.
The judgment shall determine the breach or default complained of, fix the amount due the landlord at such time, and state the several amounts to become due within one year from the entry thereof, and provide that unless the amount adjudged to be due from the tenant, with interest thereon as provided in the lease or by law, shall be paid to the landlord within one year from the entry thereof and the tenant shall, within such period, fully comply with the judgment requiring the tenant to make good any default in the conditions of the lease, that the tenant and those claiming under the tenant shall be forever barred and foreclosed of any title or interest in the premises described in the lease and that in default of payment thereof within one year from the entry of the judgment the tenant shall be personally liable for the amount thereof. During the one-year period ensuing the date of the entry of the judgment the possession of the demised premises shall remain in the tenant and the tenant shall receive the rents, issues and profits thereof; but if the tenant fails to comply with the terms of the judgment and the same is not fully satisfied, and refuses to surrender the possession of the demised premises at the expiration of said year, the landlord shall be entitled to a writ of assistance or execution to be issued and executed as provided by law.
This section does not apply to a lease to which a local professional baseball park district created under subch. III of ch. 229
or the Fox River Navigational System Authority is a party.
Remedies available when tenancy dependent upon life of another terminates. 704.40(1)(1)
Any person occupying premises as tenant of the owner of a life estate or any person owning an estate for the life of another, upon cessation of the measuring life, is liable to the owner of the reversion or remainder for the reasonable rental value of the premises for any period the occupant remains in possession after termination of the life estate. Rental value as used in this section has the same meaning as rental value defined in s. 704.27
The owner of the reversion or remainder can remove the occupant in any lawful manner including eviction proceedings under ch. 799
If the occupant has no lease for a term, upon terminating the occupant's tenancy by giving notice as provided in s. 704.19
If the occupant is in possession under a lease for a term, upon termination of the lease or one year after written notice to the occupant given in the manner provided by s. 704.21
whichever occurs first, except that a farm tenancy can be terminated only at the end of a rental year.
The occupant must promptly after written demand give information as to the nature of the occupant's possession. If the occupant fails to do so, the reversioner or remainderman may treat the occupant as a tenant from month-to-month.
History: 1979 c. 32
s. 92 (16)
; 1993 a. 486
Residential rental agreement that contains certain provisions is void.
Notwithstanding s. 704.02
, a residential rental agreement is void and unenforceable if it does any of the following:
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:
Bring an action for possession of the premises.
Authorizes the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799
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 in s. 704.29
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
Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.
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
or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.
Imposes liability on a tenant for any of the following:
Personal injury arising from causes clearly beyond the tenant's control.
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
or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.
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.
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 the victim, as defined in s. 950.02 (4)
, of that crime.
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
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. (8). 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
Retaliatory conduct in residential tenancies prohibited. 704.45(1)(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:
Making a good faith complaint about a defect in the premises to an elected public official or a local housing code enforcement agency.
Complaining to the landlord about a violation of s. 704.07
or a local housing code applicable to the premises.
Exercising a legal right relating to residential tenancies.
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)
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.
History: 1981 c. 286
See also s. ATCP 134.09
, Wis. adm. code.
A landlord cannot evict a tenant solely because the tenant has reported building code violations. Dickhut v. Norton, 45 Wis. 2d 389
, 173 N.W.2d 297
Disclosure duty; immunity for providing notice about the sex offender registry. 704.50(1)(1)
Except as provided in sub. (2)
, a landlord or his or her agent has no duty to disclose to any person in connection with the rental of real property any information related to the fact that a particular person is required to register as a sex offender under s. 301.45
or any information about the sex offender registry under s. 301.45
If, in connection with the rental of real property, a person requests of a landlord or his or her agent information related to whether a particular person is required to register as a sex offender under s. 301.45
or any other information about the sex offender registry under s. 301.45
, the landlord or agent has a duty to disclose such information, if the landlord or agent has actual knowledge of the information.
Notwithstanding sub. (2)
, the landlord or agent is immune from liability for any act or omission related to the disclosure of information under sub. (2)
if the landlord or agent in a timely manner provides to the person requesting the information written notice that the person may obtain information about the sex offender registry and persons registered with the registry by contacting the department of corrections. The notice shall include the appropriate telephone number and Internet site of the department of corrections.
History: 1999 a. 89
Self-service storage facilities. 704.90(1)(a)
“Default" means the lessee fails to pay rent or other charges due under a rental agreement for a period of 7 consecutive days after the due date under the rental agreement.
“Last-known address" means the address provided by a lessee to an operator in the most recent rental agreement between the lessee and the operator or the address provided by a lessee to an operator in a written notice of a change of address, whichever address is provided later.
“Leased space" means a self-service storage unit or a space located within a self-service storage facility that a lessee is entitled to use for the storage of personal property on a self-service basis pursuant to a rental agreement and that is not rented or provided to the lessee in conjunction with property for residential use by the lessee.
“Lessee" means a person entitled to the use of a leased space, to the exclusion of others, under a rental agreement, or the person's sublessee, successor or assign.
“Operator" means the owner, lessor or sublessor of a self-service storage facility or of a self-service storage unit, an agent of any of them or any other person who is authorized by the owner, lessor or sublessor to manage the self-service storage facility or unit or to receive rent from a lessee under a rental agreement.
“Personal property" means movable property not affixed to land, including goods, wares, merchandise, vehicles, watercraft, household items, and furnishings.
“Rental agreement" means a lease or agreement between a lessee and an operator that establishes or modifies any provisions concerning the use of a leased space, including who is entitled to the use of the leased space.
“Self-service storage facility" means real property containing leased spaces but does not include a warehouse or other facility if the operator of the warehouse or facility issues a warehouse receipt, bill of lading or other document of title for personal property stored in the leased spaces.
“Self-service storage unit" means a box, shipping container, or trailer that is leased by a tenant primarily for use as a storage space whether the box, shipping container, or trailer is located at a facility owned or operated by the owner or at a location designated by the tenant.
“Verified mail" means any method of mailing that is offered by the U.S. postal service or other commercial mail delivery service and that provides evidence of mailing.
An operator may not knowingly permit a leased space to be used for residential purposes.
A lessee may not use a leased space for residential purposes.
Written rental agreement.
Every rental agreement shall be in writing and shall contain a provision allowing the lessee to specify the name and last-known address of a person who, in addition to the lessee, the operator is required to notify under sub. (5) (b) 1.
If the rental agreement contains a provision that places a limit on the value of property that is stored in the leased space, that provision shall be typed in bold type or underlined type of the same size as the remainder of the agreement.
Lien and notice in rental agreement. 704.90(3)(a)
An operator has a lien on all personal property stored in a leased space for rent and other charges related to the personal property, including expenses necessary to the preservation, removal, storage, preparation for sale and sale of the personal property. The lien attaches as of the first day the personal property is stored in the leased space and is superior to any other lien on or security interest in the personal property except for a statutory lien or a security interest that is perfected by filing prior to the first day the personal property is stored in the leased space, a security interest in a vehicle perfected under ch. 342
or a security interest in a boat perfected under ch. 30
A rental agreement shall state in boldface type that the operator has a lien on personal property stored in a leased space and that the operator may satisfy the lien by selling the personal property, as provided in this section, if the lessee defaults or fails to pay rent for the storage of personal property abandoned after the termination of the rental agreement.
If the rental agreement contains a limit on the value of property stored in the lessee's storage space, the limit shall be presumed to be the maximum value of the property stored in that space.
Care and custody.
Except as provided in the rental agreement and in this section, a lessee has exclusive care, custody and control of personal property stored in the lessee's leased space.