A landlord cannot evict a tenant solely because the tenant has reported building code violations. Dickhut v. Norton, 45 W (2d) 389, 173 NW (2d) 297.
Retaliatory eviction as a defense. 54 MLR 239.
Landlords' liability for defective premises: caveat lessee, negligence, or strict liability? Love, 1975 WLR 19.
Manner of giving notice. 704.21(1)
Notice by landlord.
Notice by the landlord or a person in the landlord's behalf must be given under this chapter by one of the following methods:
By giving a copy of the notice personally to the tenant or by leaving a copy at the tenant's usual place of abode in the presence of some competent member of the tenant's family at least 14 years of age, who is informed of the contents of the notice;
By leaving a copy with any competent person apparently in charge of the rented premises or occupying the premises or a part thereof, and by mailing a copy by regular or other mail to the tenant's last-known address;
If notice cannot be given under par. (a)
with reasonable diligence, by affixing a copy of the notice in a conspicuous place on the rented premises where it can be conveniently read and by mailing a copy by regular or other mail to the tenant's last-known address;
By mailing a copy of the notice by registered or certified mail to the tenant at the tenant's last-known address;
By serving the tenant as prescribed in s. 801.11
for the service of a summons.
(2) Notice by tenant.
Notice by the tenant or a person in the tenant's behalf must be given under this chapter by one of the following methods:
By giving a copy of the notice personally to the landlord or to any person who has been receiving rent or managing the property as the landlord's agent, or by leaving a copy at the landlord's usual place of abode in the presence of some competent member of the landlord's family at least 14 years of age, who is informed of the contents of the notice;
By giving a copy of the notice personally to a competent person apparently in charge of the landlord's regular place of business or the place where the rent is payable;
By mailing a copy by registered or certified mail to the landlord at the landlord's last-known address or to the person who has been receiving rent or managing the property as the landlord's agent at that person's last-known address;
By serving the landlord as prescribed in s. 801.11
for the service of a summons.
(3) Corporation or partnership.
If notice is to be given to a corporation notice may be given by any method provided in sub. (1)
except that notice under sub. (1) (a)
or (2) (a)
may be given only to an officer, director, registered agent or managing agent, or left with an employe in the office of such officer or agent during regular business hours. If notice is to be given to a partnership, notice may be given by any method in sub. (1)
except that notice under sub. (1) (a)
or (2) (a)
may be given only to a general partner or managing agent of the partnership, or left with an employe in the office of such partner or agent during regular business hours, or left at the usual place of abode of a general partner in the presence of some competent member of the general partner's family at least 14 years of age, who is informed of the contents of the notice.
(4) Notice to one of several parties.
If there are 2 or more landlords or 2 or more cotenants of the same premises, notice given to one is deemed to be given to the others also.
(5) Effect of actual receipt of notice.
If notice is not properly given by one of the methods specified in this section, but is actually received by the other party, the notice is deemed to be properly given; but the burden is upon the party alleging actual receipt to prove the fact by clear and convincing evidence.
Sup. Ct. Order, 67 W (2d) 585, 777 (1975); 1993 a. 486
Service of process in residential tenancy on nonresident party. 704.22(1)(1)
A party to a residential tenancy in this state who is not a resident of this state shall designate an agent to accept service of process in this state for an action involving the tenancy. The agent shall be a resident of this state or a corporation authorized to do business in this state. If a party is a corporation, the agent is the corporation's registered agent.
Designation of an agent under sub. (1)
shall be in writing and filed with the department of financial institutions.
History: 1981 c. 300
; 1995 a. 27
Removal of tenant on termination of tenancy.
If a tenant remains in possession without consent of the tenant's landlord after termination of the tenant's tenancy, the landlord may in every case proceed in any manner permitted by law to remove the tenant and recover damages for such holding over.
History: 1993 a. 486
Effect of holding over after expiration of lease; removal of tenant. 704.25(1)(1)
Removal and recovery of damages.
If a tenant holds over after expiration of a lease, the landlord may in every case proceed in any manner permitted by law to remove the tenant and recover damages for such holding over.
(2) Creation of periodic tenancy by holding over. 704.25(2)(a)(a) Nonresidential leases for a year or longer.
If premises are leased for a year or longer primarily for other than private residential purposes, and the tenant holds over after expiration of the lease, the landlord may elect to hold the tenant on a year-to-year basis.
All other leases.
If premises are leased for less than a year for any use, or if leased for any period primarily for private residential purposes, and the tenant holds over after expiration of the lease, the landlord may elect to hold the tenant on a month-to-month basis; but if such lease provides for a weekly or daily rent, the landlord may hold the tenant only on the periodic basis on which rent is computed.
When election takes place.
Acceptance of rent for any period after expiration of a lease or other conduct manifesting the landlord's intent to allow the tenant to remain in possession after the expiration date constitutes an election by the landlord under this section unless the landlord has already commenced proceedings to remove the tenant.
(3) Terms of tenancy created by holding over.
A periodic tenancy arising under this section is upon the same terms and conditions as those of the original lease except that any right of the tenant to renew or extend the lease, or to purchase the premises, or any restriction on the power of the landlord to sell without first offering to sell the premises to the tenant, does not carry over to such a tenancy.
(4) Effect of contrary agreement.
This section governs except as the parties agree otherwise either by the terms of the lease itself or by an agreement at any subsequent time.
(5) Holdover by assignee or subtenant.
If an assignee or subtenant holds over after the expiration of the lease, the landlord may either elect to:
Hold the assignee or subtenant or, if he or she participated in the holding over, the original tenant as a periodic tenant under sub. (2)
Remove any person in possession and recover damages from the assignee or subtenant or, if the landlord has not been accepting rent directly from the assignee or subtenant, from the original tenant.
(6) Notice terminating a tenancy created by holding over.
Any tenancy created pursuant to this section is terminable under s. 704.19
History: 1983 a. 36
Damages for failure of tenant to vacate at end of lease or after notice.
If a tenant remains in possession without consent of the tenant's landlord after expiration of a lease or termination of a tenancy by notice given by either the landlord or the tenant, or after termination by valid agreement of the parties, the landlord may recover from the tenant damages suffered by the landlord because of the failure of the tenant to vacate within the time required. In absence of proof of greater damages, the landlord may recover as minimum damages twice the rental value apportioned on a daily basis for the time the tenant remains in possession. As used in this section, rental value means the amount for which the premises might reasonably have been rented, but not less than the amount actually paid or payable by the tenant for the prior rental period, and includes the money equivalent of any obligations undertaken by the tenant as part of the rental agreement, such as payment of taxes, insurance and repairs.
History: 1993 a. 486
This section requires a minimum award of double rent where greater damages have not been proved. Vincenti v. Stewart, 107 W (2d) 651, 321 NW (2d) 340 (Ct. App. 1982).
"Rental value" includes only those obligations tenant is required to pay during holdover period regardless of whether or not tenant uses premises. Univest Corp. v. General Split Corp. 148 W (2d) 29, 435 NW (2d) 234 (1989).
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.
(2) Measure of recovery.
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. Reasonable efforts mean those steps which the landlord would have taken to rent the premises if they had been vacated in due course, provided that such steps are in accordance with local rental practice for similar properties. 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.
(3) 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.
(4) 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
Sale of property constituted acceptance of surrender of premises and termination of lease. First Wis. Trust Co. v. L. Wiemann Co. 93 W (2d) 258, 286 NW (2d) 360 (1980).
Court's retention of jurisdiction to determine damages for rents not yet due is permitted. Mitigation expenses which may be recovered are limited to necessary expenses incurred and does not include compensation for time spent in mitigating damages. Kersten v. H.C. Prange Co. 186 W(2d) 49, 520 NW(2d) 99 (Ct. App. 1994).
Landlord has obligation to rerent when tenant breaches lease; specific performance is not 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
is a party.
History: 1993 a. 486
; 1995 a. 56
Remedies available when tenancy dependent upon life of another terminates. 704.40(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
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
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 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, 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 to receive rent from a lessee under a rental agreement.
"Personal property" means movable property not affixed to land, including goods, wares, merchandise, motor 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.
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.
(2m) 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.