Related Statutes and Rules
Chapter 704, Stats., regulates transactions between landlords and both residential and non-residential tenants. The department does not administer ch. 704, Stats. (except for s. 704.90, Stats., relating to self-service storage facilities). Chapter ATCP 125, Wis. Adm. Code, regulates rental transactions for sites upon which the tenant places a manufactured home owned by the tenant. 2011 Wisconsin Act 143 and 2013 Wisconsin Act 76 also created s. 66.0104, Stats., which limits a municipality’s authority to restrict certain rights and duties of landlords and specifically states that an ordinance that is “inconsistent” with the protected rights and duties of a landlord “does not apply and may not be enforced.”
Plain Language Analysis
The department enacted ch. ATCP 134, Wis. Adm. Code, in 1980 and the rule was revised in 1998. The existing rule regulates rental transactions between landlords and residential tenants as follows:
• Requires the landlord to provide to the tenant before entering into the rental agreement copies of the rental agreement and a receipt for any earnest money or security deposits that the tenant has paid to the landlord.
• Requires the landlord to disclosure to the tenant before entering into the rental agreement the names and addresses of the owners and managers, code violations and other conditions affecting habitability, and any utility charges that the tenant may be required to pay.
• Prescribes procedures for accepting and withholding earnest money fees and credit check fees.
• Prescribes procedures for handling security deposits.
• Prescribes procedures for promises to repair.
• Prohibits a landlord from including in rental agreements provisions that do the following:
• Authorize unlawful eviction.
• Accelerate rent payments in event of tenant default.
• Require the tenant to pay attorney’s fees.
• Authorize the landlord to enter a plea in a court action on behalf of the tenant in which the tenant agrees to accept a judgment against the tenant.
• Relieve the landlord from liability for property damage or personal injury caused by the landlord.
• Impose liability on the tenant for property damage or personal injury not caused by the tenant.
• Waive statutory or legal obligations of the landlord.
• Prohibits a landlord from:
• Advertising or renting condemned premises.
• Unauthorized entries.
• Automatically renewing a lease without notice.
• Unlawfully confiscating personal property.
• Engaging in retaliatory or self-help eviction.
• Charging late rental fees and other penalties not set out in the lease.
• Misrepresenting the dwelling units offered or the amount of all rent and non-rent charges.
• Failing to disclose all non-rent charges in connection with the representation of any rent amount.
2011 Wisconsin Act 143 was enacted on March 21, 2012. Act 143 made changes to ch. 704, Stats., that affect some of the provisions of the current rule relating to:
• Disclosures required before entering into a rental agreement.
• Returning security deposits.
• Withholding security deposits.
• Prohibiting certain rental agreement provisions.
• Disposing of personal property left behind by a tenant.
• Violations of Landlord Tenant law may constitute a violation of Unfair Trade Practices Law.
2013 Wisconsin Act 76 was enacted on December 12, 2013. Act 76, among other things, made additional changes to landlord tenant requirements in ch. 704, Stats., including:
• Disposing of personal property left behind by a tenant.
• Damage to premises due to action or inaction of the tenant.
• Check-in sheets.
• Requiring notice of domestic abuse protections.
• Prohibition on rental agreement terms that allows landlord to terminate tenancy if a crime is committed in or on the rental property.
This rule makes revisions to ch. ATCP 134 that are necessary to conform the rule to provisions of ch. 704, Stats. (as amended), and ensure that enforcement of the rule will not change a right or duty provided by ch. 704, Stats.
The proposed rule makes a minor, technical revision to the existing rule definition of “dwelling unit” to conform to recent changes in ch. ATCP 125, Wis. Adm. Code. The proposed rule revises existing rule definitions of “premises” and “rental agreement” to conform them to the most recent version of ch. 704, Stats.
Disclosures required before entering into a rental agreement
The current rule requires a landlord to make certain disclosures to the prospective tenant before entering into a rental agreement or accepting any earnest money or security deposit. These disclosures relate to various conditions affecting habitability, including uncorrected building code violations.
2011 Act 143 created s. 704.07 (2) (bm), Stats., which requires disclosures relating to building code violations that are generally similar to the disclosures prescribed by the current rule.
This rule repeals and recreates the building code violation disclosure requirement to conform it to the disclosure required by the statute.
Returning security deposits
The current rule establishes a deadline for return of security deposits to the tenant. In most cases, the landlord must return the security deposit with 21 days of the tenant vacating the property.
2011 Act 143 created, and 2013 Act 76 amended, s. 704.28 (4), Stats., which incorporates similar security deposit return requirements. Under the new statutory requirements, if the tenant vacates the property before the end of the rental agreement, and the landlord does not re-rent the property, the landlord must return the security deposit within 21 days of the last day of the rental agreement.
This rule amends the requirement to a return a security deposit to conform to the statutory provision.
Withholding security deposits
Under the current rule, a landlord may withhold a tenant’s security deposit only for specific reasons listed in the rule such as damage to the premises; unpaid rent; unpaid utilities or assessments for which the landlord is liable; or other reasons specifically listed in the rental agreement as “nonstandard rental provisions.”
Act 143 created s. 704.28 (1), Stats., which incorporates very similar (but not identical) provisions into the statute. This rule makes minor changes to the provisions relating to withholding a tenant’s security deposit to conform to the statute, but does not substantially change the requirements from the current rule. It also makes slight changes related to “nonstandard rental provisions” to conform to s. 704.28 (2), Stats., as created by 2011 Act 143 and amended by 2013 Act 76.
Prohibited rental agreement provisions