Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These laws address common topics such as rental agreements, security deposits, and other duties of landlords and tenants.
Summary of Factual Data and Analytical Methodologies
This rule modifies the current rule only to conform it to recent changes to the Wisconsin statutes. DATCP did not conduct any factual or data analysis.
Analysis and Supporting Documents used to Determine Effect on Small Business or in Preparation of an Economic Impact Analysis
DATCP has carefully reviewed the provisions of ch. 704, Stats. (as amended by 2011 Wisconsin Act 143 and 2013 Wisconsin Act 76) to ensure that changes to the rule align with the provisions of ch. 704. DATCP will also review the public comments on this rule before preparing a final analysis. Effect on Small Business
DATCP anticipates that this rule will not have an economic impact on business. This rule makes changes to the current rule to align the rule with recent statutory changes to ch. 704, Stats. Accordingly, there are no changes in the rights or duties prescribed by current law. DATCP Contact
Questions and comments related to this rule may be directed to:
Michelle Reinen
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone (608) 224-5160
______________________________________________________________________________
Section 1. ATCP 134.02 (2) is amended to read:
ATCP 134.02 (2) “Dwelling unit” means a structure or that part of a structure that is primarily used as a home, residence, or place of abode. The term includes a manufactured home as defined in s. ATCP 125.01 (1s) or manufactured home site as defined in s. ATCP 125.01 (1s) and (7). Section 2. ATCP 134.02 (9) and (10) are amended to read:
ATCP 134.02 (9) “Premises” means a dwelling unit and the structure of which it is a part and all appurtenances, grounds, areas, furnishings and facilities held out for the use or enjoyment of the tenant or tenants generally the property covered by the lease, including not only the realty and fixtures, but also any personal property furnished with the realty.
(10) “Rental agreement” means an oral or written agreement between a landlord and tenant, for the rental or lease of a specific dwelling unit or premises, in which the landlord and tenant agree on the essential terms of the tenancy, such as rent. “Rental agreement” includes a lease. “Rental agreement” does not include an agreement to enter into a rental agreement in the future.
Section 3. ATCP 134.04 (2) (a) is repealed and recreated to read:
ATCP 134.04 (2) (a) Any building code or housing code violation to which all of the following apply:
1. The landlord has actual knowledge of the violation.
2. The violation affects the dwelling unit that is the subject of the prospective rental agreement or a common area of the premises.
3. The violation presents a significant threat to the prospective tenant’s health or safety.
4. The violation has not been corrected.
Section 4. ATCP 134.06 (2) is repealed and recreated to read:
ATCP 134.06 (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 the any of the following:
(a) If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.
(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.
(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. 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). 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. Section 5. ATCP 134.06 (3) (a) (title) is created to read:
ATCP 134.06 (3) (a) Standard withholding provisions.
Section 6. ATCP 134.06 (3) (a) (intro) and 1., 3., 4., 5., and 6. are amended to read:
ATCP 134.06 (3) (a) A When a landlord returns a security deposit to a tenant after the tenant vacates the premises, the landlord may withhold from a tenant’s the full amount of the security deposit only amounts reasonably necessary to pay for any of the following:
1. Tenant Except as provided in par. (c), tenant damage, waste or neglect of the premises.
3. Payment which that the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.
4. Payment which 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.
5. Unpaid mobile home parking fees which a local unit of government has 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. 6. Other reasons authorized Any other payment for a reason provided in the a nonstandard rental agreement according to provision document described in par. (b).
Section 7. ATCP 134.06 (3) (b) (title) is created to read:
ATCP 134.06 (3) (b) Nonstandard rental provisions.
Section 8. ATCP 134.06 (3) (b) is amended to read:
ATCP 134.06 (3) (b) A Except as provided in par. (c), a rental agreement may include one or more nonstandard rental provisions which that authorize a the landlord to withhold amounts from a the tenant’s security deposit for reasons not identified under specified in par. (a) 1. to 5. The landlord shall include the Any such nonstandard rental provisions, if any, shall be provided to the tenant 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 rental provision with the tenant before the tenant enters into any 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 and discussed that the nonstandard rental provision with the tenant, and that the tenant has agreed to it.
Section 9. ATCP 134.06 (3) (c) (title) is created to read:
ATCP 134.06 (3) (c) Normal wear and tear.
Section 10. ATCP 134.06 (3) (c) is amended to read:
ATCP 134.06 (3) (c) 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.
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). Section 11. ATCP 134.08 is repealed and recreated to read:
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: (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:
(a) Increase rent.
(b) Decrease services.
(c) Bring an action for possession of the premises.
(d) Refuse to renew a rental agreement
(e) Threaten to take any action under pars. (a) to (d).
(2) Authorizes the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799, Stats. (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. (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. (5) Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.
(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. (7) Imposes liability on a tenant for any of the following:
(a) Personal injury arising from causes clearly beyond the tenant’s control.
(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. (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.
(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. (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. 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. Section 12. ATCP 134.09 (4) (a) is repealed and recreated to read:
ATCP 134.09 (4) Confiscating personal property. (a) Except as provided in ss. 704.05 (5), 704.11 and 779.43, Stats., or by express agreement of the parties, a landlord has no right to a lien and is prohibited from seizing or holding a tenant’s property. Section 13. ATCP 134.09 (4) (b) is amended to read.
(b) A lien An express agreement under par. (a), if any, shall be executed in writing at the time of the initial rental agreement. The landlord shall include the lien agreement in a separate written document entitled “NONSTANDARD RENTAL PROVISION” which the landlord provides to the tenant. The landlord shall specifically identify and discuss the lien agreement with the tenant before the tenant enters into any rental agreement with the landlord. The lien agreement is not effective unless signed or initialed by the tenant.
Section 14. Effective date: This rule takes effect on the first day of the third month following publication in the Wisconsin Administrative Register, pursuant to s. 227.22(2) (b), Stats.
