Background
The department enacted ch.
ATCP 134, Wis. Adm. Code, (“the existing rule") in 1980 and the rule was revised in 1998. The current rule regulates rental transactions between landlords and residential tenants as follows:
• Requires disclosure of rental agreement and earnest money receipts to the tenant.
• Requires disclosures to tenant prior to lease relating to the identity of the landlord, conditions affecting habitability, and utility charges.
• 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 confess 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.
Rule Content
The Wisconsin legislature enacted Act 143 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.
• Confiscating personal property left behind by a tenant.
• Violations of Landlord Tenant law may constitute a violation of Unfair Trade Practices Law.
As a result of Act 143, some provisions of the existing rule overlap and conflict with Ch.
704. This rule would modify the current rule to conform to the new statutory requirements.
Disclosures required before entering into a rental agreement
The current rule requires certain disclosures a landlord must make to the tenant before entering into a rental agreement with, or accepting any earnest money or security deposit from, a prospective tenant. These disclosures relate to conditions affecting habitability.
Act 143 creates s.
704.07 (2) (bm), Stats., which requires disclosures relating to habitability that are similar, but not identical, to the disclosures prescribed by the current rule.
This rule repeals and recreates the required disclosures to make them identical to the disclosures required by statute.
Returning security deposits
Under the current rule, if the tenant surrenders the property before the last day of the rental agreement, the landlord must return the security deposit within 21 days after the landlord receives a written notice from the tenant that the tenant has surrendered the premises.
Act 143 creates s.
704.28 (4) (b), Stats., which requires the landlord, if the tenant surrenders the property before the last day of the rental agreement, to return the security deposit within 21 days after the last day of the rental agreement.
This rule amends the requirement to return a security deposit to be identical to the provision of the Act.
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 that the landlord is liable for unpaid amounts; or other reasons specifically listed in the rental agreement as “nonstandard rental provisions."
Act 143 creates s.
704.28 (1), Stats., which incorporates very similar (but not identical) provisions into the statute.
This rule makes minor changes to the wording of the provisions relating to withholding a tenant's security deposit to conform with Act 143, but does not substantially change the requirements from the current rule.
Prohibited rental agreement provisions
The current rule describes provisions that a landlord is prohibited from placing in a rental agreement, such as:
• Authorizing eviction by other than judicial procedure.
• Acceleration of rent payments if tenant breaches obligations.
• Requiring the tenant to pay landlord's attorney's fees in the event of a dispute.
• Relieving the landlord from liability for damage or injury caused by negligent acts or omissions of the landlord.
• Imposing liability on the tenant for personal injury arising from causes clearly beyond the tenant's control.
Act 143 creates portions of s.
704.44, Stats., which describe prohibited rental agreement provisions that are similar, but not identical, to provisions in the current rule. Further, Act 143 states that the entire rental agreement is void and unenforceable if it contains any of the prohibited provisions. The current rule does not have such a provision, but instead relies on a test established by the courts to determine whether the entire rental agreement is void based on the inclusion of a prohibited provision.
This rule makes minor changes in wording related to prohibited rental agreement provisions so that the rule is identical to the new statute. This rule also incorporates the provision in s.
704.44, Stats.,
that declares the entire rental agreement is void and unenforceable if it contains any of the prohibited rental agreement provisions.
Confiscating personal property left behind by the tenant
The current rule prohibits the landlord from confiscating the tenant's personal property except as authorized by law or in accordance with a written lien agreement. The current rule also prescribes the form and manner in which the landlord and tenant may execute the lien agreement.
Act 143 allows a landlord to dispose of personal property left behind by the tenant at the landlord's discretion as long as certain conditions are met. For example, there must not be a written agreement to the contrary, and the landlord must provide notice to the tenant of his or her intent not to store the property before the tenant enters into or renews a rental agreement.
This rule amends the current rule so that provisions relating to abandoned personal property are identical to the statute.
Summary of, and comparison with, existing or proposed federal statutes and regulations
Federal law does not generally regulate landlord and tenant relationships or residential rental practices. The Federal Fair Housing Act of 1968 makes it illegal for a landlord to discriminate against a potential tenant because of a person's race, sex, national origin, or religion, and it prohibits certain discriminatory conduct.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These statutes and rules 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 to conform to policies dictated by a change in Wisconsin statutes.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
DATCP anticipates that the economic impact of this rule will be minimal. This rule makes minor changes to conform to Ch.
704, Stats. This rule also makes changes to the current rule to replace requirements that are no longer enforceable because of changes in Ch.
704, Stats.
Effect on Small Business/Initial Regulatory Flexibility Analysis
Rule summary
The Wisconsin legislature enacted Act 143 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.
• Confiscating personal property left behind by a tenant.
• Violations of Landlord Tenant law may constitute a violation of Unfair Trade Practices Law.
As a result of Act 143, some provisions of the existing rule overlap and conflict with Ch.
704. This rule would modify the current rule to conform to the new statutory requirements.
Disclosures required before entering into a rental agreement
The current rule requires certain disclosures a landlord must make to the tenant before entering into a rental agreement with, or accepting any earnest money or security deposit from, a prospective tenant. These disclosures relate to conditions affecting habitability.
Act 143 creates s.
704.07 (2) (bm), Stats., which requires disclosures relating to habitability that are similar, but not identical, to the disclosures prescribed by the current rule.
This rule repeals and recreates the required disclosures to make them identical to the disclosures required by statute.
Returning security deposits
Under the current rule, if the tenant surrenders the property before the last day of the rental agreement, the landlord must return the security deposit within 21 days after the landlord receives a written notice from the tenant that the tenant has surrendered the premises.
Act 143 creates s.
704.28 (4) (b), Stats., which requires the landlord, if the tenant surrenders the property before the last day of the rental agreement, to return the security deposit within 21 days after the last day of the rental agreement.
This rule amends the requirement to a return a security deposit to be identical to the provision Act.
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 that the landlord is liable for unpaid amounts; or other reasons specifically listed in the rental agreement as “nonstandard rental provisions."
Act 143 creates s.
704.28 (1), Stats., which incorporates very similar (but not identical) provisions into the statute.
This rule makes minor changes to the wording of the provisions relating to withholding a tenant's security deposit to conform with Act 143, but does not substantially change the requirements from the current rule.
Prohibited rental agreement provisions
