AB1038: Bill Text

AB1038,9,11 (2) Code violations and conditions affecting habitability. Before entering into a rental agreement with or accepting any earnest money or security deposit from a prospective tenant, a landlord shall disclose to a prospective tenant:

AB1038,9,19 (a) All uncorrected building or housing code violations of which the landlord has received notice from code enforcement authorities, which affect the individual dwelling unit or common areas of the premises and which materially affect the safety or habitability of the dwelling unit. Written disclosure shall be given to the prospective tenant concerning those portions of the building or housing code notices or orders which have not been fully complied with. Code violations shall not be considered corrected until their correction has been reported to code enforcement authorities.

AB1038,9,22 (b) Any of the following conditions affecting habitability, if the landlord knows or could know on the basis of a reasonable inspection of the condition's existence, whether or not notice has been received from code enforcement authorities:

AB1038,9,24 1. That the dwelling unit lacks hot and cold running water, plumbing or sewage disposal facilities in proper operating condition.

AB1038,10,4 2. That heating facilities serving the dwelling unit are not in safe operating condition, or are not capable of maintaining a temperature in the dwelling unit of at least 67 degrees Fahrenheit at a height of 3 feet above floor level in the center of a room when the air temperature outdoors is above minus 10 degrees Fahrenheit.

AB1038,10,10 3. That the electrical wiring, outlets, fixtures or other components of the electrical system are not in safe operating condition. If the dwelling units are metered separately and electrical service to the dwelling unit has been disconnected due to nonpayment by, or at the request of, the previous occupant, the landlord must disclose that condition under this subdivision only if the landlord has actual knowledge of the condition's existence.

AB1038,10,14 4. Any structural or other conditions in the dwelling unit or premises which constitute a substantial hazard to the health or safety of the tenant or create an unreasonable risk of personal injury as a result of any reasonably foreseeable use of the premises other than negligent use or abuse of the premises by the tenant.

AB1038,10,21 (3) Utility charges. A landlord shall disclose to a prospective tenant whether charges for water, heat or electricity are included in the rent before entering into a rental agreement with or accepting any earnest money or security deposit from the prospective tenant. If individual dwelling units and common areas are not separately metered and the charges are not included in the rent, the landlord shall disclose the basis on which charges for utility services will be allocated among individual dwelling units.

AB1038,11,2 704.93 Earnest money deposits. (1) Refund or credit of earnest money deposit. (a) If a rental application is rejected by a landlord, the entire amount of any earnest money deposit shall be refunded to the prospective tenant, less any actual costs, not exceeding $25, incurred for verification of the application or for a credit check if the application contained omissions or falsifications that contributed wholly or in part to the rejection.

AB1038,11,5 (b) If a rental agreement is entered into, the entire amount of any earnest money deposit shall be applied toward the payment of rent or a security deposit or returned to the tenant.

AB1038,11,11 (2) Limitations on earnest money withholding. (a) No portion of an earnest money deposit may be permanently withheld by a landlord in excess of actual costs and damages incurred because of the failure of a prospective tenant to enter into a rental agreement. An earnest money deposit may not be permanently withheld as compensation for lost rents unless the landlord has made reasonable efforts to mitigate the rental loss in the manner provided in s. 704.29.

AB1038,11,14 (b) Upon a written request by any person giving an earnest money deposit, the landlord shall provide that person with a written statement accounting for all amounts permanently withheld from the deposit.

AB1038,11,16 704.935 Security deposits. (1) Check-in procedures; preexisting damages. Whenever a security deposit is required, the landlord shall do all of the following:

AB1038,11,20 (a) Upon accepting a deposit, inform the tenant that he or she may inspect the dwelling unit and notify the landlord of any damages or defects existing at the beginning of the tenancy. The tenant shall be given at least 7 days after the beginning of the tenancy for the inspection and notification.

AB1038,12,2 (b) Upon the written request of a tenant, furnish the tenant with a written itemized description of any physical damages or defects for which deductions from the previous tenant's security deposit were made. The landlord may note, in connection with the damage description, whether the damage or defect has been repaired by the landlord. The landlord is not required to disclose the previous tenant's identity or the amounts withheld from the previous tenant's security deposit.

AB1038,12,6 (2) Return of security deposits. (a) Except as provided in par. (b), a landlord shall return all security deposits to the tenant, less any amounts withheld by the landlord, within 21 days after the last day for which the tenant is legally liable for rent.

AB1038,12,12 (b) If a tenant vacates the premises before the end of the lease term, provides the landlord with written notice of his or her intention to vacate the premises before the end of the lease term and pays all rents and other charges for which the tenant is legally liable under the lease, the landlord shall return all security deposits to the tenant, less any amounts withheld by the landlord, within 21 days after the latest of the following:

AB1038,12,14 1. The day on which the landlord receives the notice from the tenant of his or her intention to vacate the premises before the end of the lease term.

AB1038,12,16 2. The day on which the landlord receives all rents and other charges for which the tenant is liable under the lease.

AB1038,12,17 3. The day on which the tenant vacates the premises.

AB1038,12,19 (c) All security deposits returned to a tenant shall be returned by the landlord in person or by mail to the last-known address of the tenant.

AB1038,12,24 (3) Limitations on security deposit withholding; rebuttable presumption. (a) Except for other reasons clearly agreed upon in writing at the time that the rental agreement is entered into, other than in a form provision, security deposits may be withheld only for tenant damage, waste or neglect of the premises or for nonpayment of any of the following:

AB1038,13,2 1. Rent or other charges for which the tenant is legally responsible, subject to s. 704.29.

AB1038,13,4 2. Actual amounts owed for utility service provided by the landlord under terms of the rental agreement and not included in the rent.

AB1038,13,7 3. Actual amounts owed by the tenant for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant's nonpayment.

AB1038,13,10 4. Mobile home parking fees assessed against the tenant by a local unit of government under s. 66.058 (3), to the extent that the landlord becomes liable for the tenant's nonpayment.

AB1038,13,13 (b) Nothing in this subsection shall be construed as authorizing any withholding for normal wear and tear or other damages or losses for which the tenant is not otherwise responsible under applicable law.

AB1038,13,16 (c) Damage to a dwelling unit that occurs during a tenancy is rebuttably presumed to have been caused by the tenant's action or by the tenant's negligent failure to protect the dwelling unit.

AB1038,13,22 (4) Security deposit withholding; statement of claims. (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 damage or other claim made against the security deposit and the amount withheld as reasonable compensation for each item or claim.

AB1038,13,25 (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 on the basis of an intentionally falsified claim.

AB1038,14,6 (c) A landlord is not in violation of this subsection for returning an erroneously withheld amount to the tenant after the time specified in sub. (2) if the landlord had a reasonable basis for withholding the amount and the amount is returned to the tenant with reasonable promptness after the error is discovered. The burden of proof is on the landlord to show that the basis for withholding the amount and the time within which the amount was returned were reasonable.

AB1038,14,11 (5) Tenant failure to leave forwarding address. A landlord who has otherwise complied with this section is not 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.

AB1038,14,17 704.94 Promises to repair. (1) Date of completion. Every written promise 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 on or time period within which the cleaning, repairs or improvements are anticipated to be completed.

AB1038,14,19 (2) Initial promises in writing. All promises made before the initial rental agreement shall be in writing with a copy furnished to the tenant.

AB1038,15,2 (3) Performance; unavoidable delays. A landlord shall make a reasonable attempt 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 war, acts of God, government regulation or decree, strikes, shortage of labor or materials, unseasonable weather conditions 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 shall state when the cleaning, repairs or improvements are anticipated to be completed.

AB1038,15,4 704.945 Prohibited rental agreement provisions. No rental agreement may do any of the following:

AB1038,15,6 (1) Authorize the eviction or exclusion of a tenant from the premises other than by judicial eviction procedures under ch. 799.

AB1038,15,10 (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 in the manner provided under s. 704.29.

AB1038,15,12 (3) Authorize the landlord or any agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

AB1038,15,16 (4) 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 subsection does not affect ordinary maintenance obligations for which the tenant is responsible under the rental agreement or under s.704.07.

AB1038,15,17 (5) Impose, or purport to impose, liability on a tenant for any of the following:

AB1038,15,18 (a) Personal injury arising from causes clearly beyond the tenant's control.

AB1038,15,22 (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 for which the tenant is responsible under the rental agreement or under s. 704.07.

AB1038,15,25 (6) Provide for the waiver of 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 tenancy.

AB1038,16,4 (7) Require payment by a 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 prohibit the recovery by a landlord or tenant of attorney fees or costs that are ordered by a court under ch. 799 or 814.

AB1038,16,11 704.95 Prohibited practices. (1) Advertising or rental of condemned premises. No landlord may rent or advertise for rent any premises that have been placarded and condemned for human habitation or any premises regarding 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, unless all repairs required to bring the property into compliance with the laws or ordinances have been completed.

AB1038,16,22 (2) Unauthorized entry. No landlord may 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). Entry may not be made except at reasonable times and upon at least 12 hours' advance notice unless the tenant, upon being notified of the proposed entry, consents to a shorter time period. This subsection does not apply to situations in which the tenant requests or consents to a proposed entry at a specified time; the tenant requests specified repairs and the repairs are made during normal working hours within 2 weeks after the tenant's request for the repair; a health or safety emergency exists, the tenant is absent and the landlord reasonably believes that entry is necessary to protect the premises from damage; or entry is otherwise authorized in writing other than in a form provision.

AB1038,17,2 (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, the tenant was given separate written notice of the pending automatic renewal or extension at least 15 days but not more than 30 days before the effective date of the automatic renewal or extension.

AB1038,17,7 (4) Confiscation of personal property. No landlord may seize or hold a tenant's personal property or otherwise prevent the tenant from having access to or removing his or her personal property, except as authorized under s. 704.05 (5) or 799.45 (3) (am), or under a lien agreement entered into in writing other than in a form provision.

AB1038,17,12 (5) Retaliatory eviction. A landlord may not terminate a tenancy or give notice preventing the automatic renewal of a lease or constructively evict a tenant by any means including the termination or substantial reduction of heat, water or electricity to the dwelling unit solely in retaliation against a tenant because the tenant has done any of the following:

AB1038,17,14 (a) Reported a violation of this chapter or a building or housing code to any governmental authority or filed suit alleging such a violation.

AB1038,17,15 (b) Joined or attempted to organize a tenant's union or association.

AB1038,17,17 (c) Asserted, or attempted to assert, any right specifically accorded to tenants under state or local law.

AB1038,17,21 (6) Failure to deliver possession. A landlord shall deliver possession of the dwelling unit to the tenant at the time agreed upon in the rental agreement, unless the landlord is unable to deliver possession because of circumstances beyond the landlord's control.

AB1038,17,24 704.955 Effect of rules on local ordinances. (1) This subchapter does not prohibit or nullify any local government ordinance that is not in direct conflict with this subchapter.

AB1038,18,3 (2) In the event of any direct conflict between this subchapter and any local government ordinance such that complying with one results in violating the other, this subchapter is controlling.

AB1038, s. 10 Section 10. 757.69 (1) (d) of the statutes is amended to read:

AB1038,18,7 757.69 (1) (d) In small claims actions, conduct initial return appearance and conciliation conferences and all proceedings related to eviction actions, except trials to a jury.

AB1038, s. 11 Section 11. 799.05 (3) (b) of the statutes is amended to read:

AB1038,18,14 799.05 (3) (b) Except in eviction actions, the return date for a summons served upon a resident of this state shall be not less than 8 days nor more than 30 days from the issue date, and service shall be made not less than 8 days prior to the return date. In eviction actions, the return date for a summons served upon a resident of this state shall be not less than 5 days nor more than 30 15 days from the issue date, and service shall be made not less than 5 days prior to the return date.

AB1038, s. 12 Section 12. 799.206 (3) of the statutes is amended to read:

AB1038,18,22 799.206 (3) When all parties appear in person or by their attorneys on the return date in an eviction, a garnishment or replevin action and any party claims that a contest exists, the matter shall be forthwith scheduled for a hearing, to be held as soon as possible before a judge. When all parties appear in person or by their attorneys on the return date in an eviction action and any party claims that a contest exists, the matter shall be forthwith scheduled for a hearing, to be held before a judge or court commissioner within 5 working days.

AB1038, s. 13 Section 13. 799.44 (4) of the statutes is amended to read:

AB1038,19,2 799.44 (4) Writ of restitution; form and contents. The writ of restitution shall be in the name of the court, sealed with its seal, signed by its clerk, directed to the sheriff of the county in which the real property is located, and in substantially the following form:

AB1038,19,3 (Venue and caption)

AB1038,19,4 THE STATE OF WISCONSIN To the Sheriff of .... County:

AB1038,19,7 The plaintiff, ...., of .... recovered a judgment against the defendant, ...., of ...., in an eviction action in the Circuit Court of .... County, on the .... day of ...., 19.., to have restitution of the following described premises:

AB1038,19,8 .... (description as in complaint), located in .... County, Wisconsin.

AB1038,19,13 YOU ARE HEREBY COMMANDED To immediately remove the defendant, ...., from the said premises and to restore the plaintiff, ...., to the possession thereof. You are further commanded to remove from said premises all personal property not the property of the plaintiff, and to store and dispose of the same according to law, and to make due return of this writ within ten days.

AB1038,19,15 Witness the Honorable ...., Court Commissioner or Judge of the said Circuit Court, this .... day of ...., 19..

AB1038,19,16 .... Clerk

AB1038, s. 14 Section 14. 799.45 (1) of the statutes is amended to read:

AB1038,20,2 799.45 (1) When executed. Upon delivery of a writ of restitution to the sheriff, and after payment to the sheriff of the fee required by s. 814.70 (8), the sheriff shall execute the writ. The If the plaintiff, or the plaintiff's attorney or agent, does not notify the sheriff under sub. (3) (am) that the plaintiff or his or her agent will remove and store the property, the sheriff may require that prior to the execution of any writ of restitution the plaintiff deposit a reasonable sum representing the probable cost of removing the defendant's property chargeable to the plaintiff under s. 814.70 (8) and (10) and of the services of deputies under s. 814.70 (8). In case of dispute as to the amount of such the required deposit, the amount thereof of that deposit shall be determined by the court under s. 814.70 (10).

AB1038, s. 15 Section 15. 799.45 (2) (b) of the statutes is amended to read:

AB1038,20,7 799.45 (2) (b) Remove Unless the plaintiff or his or her agent removes and stores the property under sub. (3) (am), remove from the premises described in the writ, using such reasonable force as may be necessary, all personal property found therein not the property of the plaintiff.

AB1038, s. 16 Section 16. 799.45 (2) (bg) of the statutes is created to read:

AB1038,20,11 799.45 (2) (bg) Assist the plaintiff or his or her agent in the removal, under sub. (3) (am), of all personal property found in the premises described in the writ, not the property of the plaintiff, using such reasonable force as may be necessary.

AB1038, s. 17 Section 17. 799.45 (2) (c) of the statutes is amended to read:

AB1038,20,16 799.45 (2) (c) Exercise ordinary care in the removal of all persons and property from the premises and, unless the plaintiff or his or her agent removes and stores the property under sub. (3) (am), in the handling and storage of all property removed therefrom from the premises.

AB1038, s. 18 Section 18. 799.45 (3) (a) of the statutes is amended to read:

AB1038,20,20 799.45 (3) (a) In Except as provided under par. (am), in accomplishing the removal of property from the premises described in the writ, the sheriff is authorized to engage the services of a mover or trucker.

AB1038, s. 19 Section 19. 799.45 (3) (am) of the statutes is created to read:

AB1038,21,6 799.45 (3) (am) When delivering a writ of restitution to the sheriff, the plaintiff or his or her attorney or agent may notify the sheriff that the plaintiff or the plaintiff's agent shall be the mover or trucker of the property that is found in the premises described in the writ and that does not belong to the plaintiff. If the sheriff is notified that the plaintiff or the plaintiff's agent shall be the mover or trucker of the property, the sheriff shall, in executing the writ of restitution, allow the plaintiff or the plaintiff's agent to act as the mover or trucker. If the sheriff is notified that the plaintiff or the plaintiff's agent shall be the mover or trucker of the property, the plaintiff or the plaintiff's agent shall remove and store the property, following the procedures under s. 704.05 (5).

AB1038, s. 20 Section 20. 799.45 (3) (b) of the statutes is amended to read:

AB1038,21,22 799.45 (3) (b) Except as provided in par. pars. (am) and (c), the property removed from such premises shall be taken to some place of safekeeping within the county selected by the sheriff. Within 3 days of the removal of the goods, the sheriff shall mail a notice to the defendant as specified in sub. (4) stating the place where the goods are kept and shall deliver to the defendant any receipt or other document required to obtain possession of the goods. Warehouse or other similar receipts issued with respect to goods stored by the sheriff under this subsection shall be taken in the name of the defendant. All expenses incurred for storage and other like charges after delivery by the sheriff to a place of safekeeping shall be the responsibility of the defendant, and any person accepting goods from the sheriff for storage under this subsection shall have all of the rights and remedies accorded by law against the defendant personally and against the property stored for the collection of such charges, including the lien of a warehouse keeper under s. 407.209. Risk of damages to or loss of such property shall be borne by the defendant after delivery by the sheriff to the place of safekeeping.

AB1038, s. 21 Section 21. Initial applicability.

AB1038,21,25 (1) The treatment of sections 757.69 (1) (d) and 799.206 (3) of the statutes first applies to eviction actions commenced on the effective date of this subsection.

AB1038, s. 22 Section 22. Effective dates. This act takes effect on the day after publication, except as follows:

AB1038,22,4 (1)  The repeal and recreation of section 100.26 (6) of the statutes takes effect on July 1, 1996, or on the day after publication, whichever is later.