DATCP Docket No.   14-R-02        
Rules Clearinghouse No. 14-038            
The Wisconsin department of agriculture, trade and consumer protection adopts the following rule to amend ATCP 134.02 (2), (9) and (10), 134.06 (3) (a) (intro) and 1., 3., 4., 5., and 6., (b) and (c), and 134.09 (4) (b); to repeal and recreate ATCP 134.04 (2) (a), 134.06 (2), 134.08 and 134.09 (4) (a); and to create ATCP 134.06 (3) (a) (title), (b) (title), and (c) (title), relating to Residential Rental Practices.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
Statutes Interpreted
  Statutes Interpreted: ss. 100.20 (1), 704.05 (5) (bf), 704.07 (2) (bm), 704.11, 704.28 (1), (2) and (4) (b), and 704.44, Stats.
Statutory Authority
Statutory Authority:   ss. 93.07 (1), 100.20 (2)(a), and 704.95, Stats.
Explanation of Statutory Authority
DATCP has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP has authority under s. 100.20 (2) (a), Stats., to promulgate administrative rules prohibiting trade practices determined by the department to be unfair, and prescribing trade practices determined by the department to be fair.
The department determined, when the rule was first promulgated in 1981, that the trade practices regulated by ch. ATCP 134, Wis. Adm. Code, were unfair pursuant to s. 100.20, Stats.
Section 704.95, Stats. (created by 2011 Wisconsin Act 143 and amended by 2013 Wisconsin Act 76), provides that a violation of s. 704.28 or 704.44, Stats., may also be an unfair trade practice under s. 100.20. Section 704.95, Stats., also confirms that the department may issue an order or promulgate a rule under s. 100.20 that does not conflict with a right or duty arising under ch. 704, Stats.
This rule only makes changes to existing rules that do not conflict with rights and duties arising under ch. 704, Stats.
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.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.