ATCP 134.04 Note
Madison, WI 53708-8911
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.
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)(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)(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)(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)(a)(a) Except as provided under
par. (b), a landlord may require a prospective tenant to pay the landlord's actual cost, up to $20, 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.
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)(a)(a) Within 21 days after a tenant surrenders the rental premises, the landlord shall deliver or mail to the tenant the full amount of any security deposit held by the landlord, less any amounts properly withheld by the landlord under
sub. (3).
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. 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(2)(b)
(b) A tenant surrenders the premises under
par. (a) on the last day of tenancy provided under the rental agreement, except that:
ATCP 134.06(2)(b)1.
1. If the tenant vacates before the last day of tenancy provided under the rental agreement, and gives the landlord written notice that the tenant has vacated, surrender occurs when the landlord receives the written notice that the tenant has vacated. If the tenant mails the notice to the landlord, the landlord is deemed to receive the notice on the second day after mailing.
ATCP 134.06(2)(b)2.
2. If the tenant vacates the premises after the last day of tenancy provided under the rental agreement, surrender occurs when the landlord learns that the tenant has vacated.
ATCP 134.06(2)(b)3.
3. If the tenant is evicted, surrender occurs when a writ of restitution is executed, or the landlord learns that the tenant has vacated, whichever occurs first.
ATCP 134.06(2)(c)
(c) If a tenant surrenders the premises without leaving a forwarding address, the landlord may mail the security deposit to the tenant's last known address.
ATCP 134.06(2)(d)
(d) If a landlord returns a security deposit in the form of a check, draft or money order, the landlord shall make the check, draft or money order payable to all tenants who are parties to the rental agreement, unless the tenants designate a payee in writing.
ATCP 134.06(2)(e)
(e) A tenant does not waive his or her right to the full amount owed under
par. (a) merely by accepting a partial payment of that amount.
ATCP 134.06(3)(a)(a) A landlord may withhold from a tenant's security deposit only for the following:
ATCP 134.06(3)(a)3.
3. Payment which 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 which 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 mobile home parking fees which a local unit of government has assessed against the tenant under s.
66.0435 (3), Stats., to the extent that the landlord becomes liable for the tenant's nonpayment.
ATCP 134.06(3)(b)
(b) A rental agreement may include one or more nonstandard rental provisions which authorize a landlord to withhold from a tenant's security deposit for reasons not identified under
par. (a). The landlord shall include the nonstandard provisions, if any, in a separate written document entitled "NONSTANDARD RENTAL PROVISIONS" which the landlord provides to the tenant. The landlord shall specifically identify and discuss each nonstandard provision with the tenant before the tenant enters into any rental agreement with the landlord. If the tenant signs or initials a nonstandard rental provision, it is rebuttably presumed that the landlord has specifically identified and discussed that nonstandard 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) This subsection does not authorize a landlord to withhold 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(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.
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. No rental agreement may:
ATCP 134.08(1)
(1) Authorize 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(2)
(2) Provide for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise purport to waive the landlord's obligation to mitigate damages as provided under s.
704.29, Stats.
ATCP 134.08(3)
(3) Require payment, by the tenant, of attorney's fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This does not prevent the recovery of costs or attorney's fees by a landlord or tenant pursuant to a court order under ch.
799 or
814, Stats.
ATCP 134.08(4)
(4) Authorize the landlord or any agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.
ATCP 134.08(5)
(5) Relieve, or purport to relieve the landlord from liability for property damage or personal injury caused by negligent acts or omissions of the landlord. This does not affect ordinary maintenance obligations assumed by a tenant under a rental agreement, in accordance with
sub. (7) and s.
704.07, Stats.
ATCP 134.08(6)
(6) Impose, or purport to impose liability on a tenant for:
ATCP 134.08(6)(a)
(a) Personal injury arising from causes clearly beyond the tenant's control.
ATCP 134.08(6)(b)
(b) Property damage caused by natural disasters, or by persons other than the tenant or the tenant's guests or invitees. This does not affect ordinary maintenance obligations assumed by a tenant under the rental agreement, in accordance with
sub. (7) and s.
704.07, Stats.
ATCP 134.08(7)
(7) Waive any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition, or maintain the premises during tenancy.
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.
ATCP 134.09(1)
(1)
Advertising or rental of condemned premises. No landlord may rent or advertise for rent any premises which have been placarded and condemned for human habitation, or on which a notice of intent to placard and condemn, or an order to raze, or to rehabilitate or raze, or any similar order has been received under state or local laws or ordinances, until and unless all repairs required to bring the property into compliance with the laws or ordinances have been completed.
ATCP 134.09(2)(a)1.
1. Enter a dwelling unit during tenancy except to inspect the premises, make repairs, or show the premises to prospective tenants or purchasers, as authorized under s.
704.05 (2), Stats. A landlord may enter for the amount of time reasonably required to inspect the premises, make repairs, or show the premises to prospective tenants or purchasers.
ATCP 134.09(2)(a)2.
2. Enter a dwelling unit during tenancy except upon advance notice and at reasonable times. Advance notice means at least 12 hours advance notice unless the tenant, upon being notified of the proposed entry, consents to a shorter time period.
ATCP 134.09(2)(b)1.
1. The tenant, knowing the proposed time of entry, requests or consents in advance to the entry.
ATCP 134.09(2)(b)3.
3. The tenant is absent and the landlord reasonably believes that entry is necessary to protect the premises from damage.
ATCP 134.09(2)(c)
(c) A rental agreement may include a nonstandard rental provision authorizing a landlord to enter a tenant's dwelling unit at reasonable times, under circumstances not authorized under
par. (a) or
(b). The landlord shall include the nonstandard provision, if any, in a separate written document entitled "NONSTANDARD RENTAL PROVISIONS" which the landlord provides to the tenant. The landlord shall specifically identify and discuss the nonstandard provision with the tenant before the tenant enters into any rental agreement with the landlord. If the tenant signs or initials the nonstandard rental provision, it is rebuttably presumed that the landlord has specifically identified and discussed that nonstandard provision with the tenant, and that the tenant has agreed to it.
ATCP 134.09 Note
Note: The separate written document under par. (c) may be pre-printed.
ATCP 134.09(2)(d)
(d) No landlord may enter a dwelling unit during tenancy without first announcing his or her presence to persons who may be present in the dwelling unit, and identifying himself or herself upon request.
ATCP 134.09 Note
Note: For example, a landlord may announce his or her presence by knocking or ringing the doorbell. If anyone is present in the dwelling unit, the landlord must then identify himself or herself upon request.
ATCP 134.09(3)
(3) Automatic lease renewal without notice. No landlord shall enforce, or attempt to enforce, an automatic renewal or extension provision in any lease unless, as provided under s.
704.15, Stats., the tenant was given separate written notice of the pending automatic renewal or extension at least 15 days, but no more than 30 days before its stated effective date.
