704.17(2)(c)
(c) A property owner may terminate the tenancy of a tenant who is under a lease for a term of one year or less or who is a year-to-year tenant if the property owner receives written notice from a law enforcement agency of a city, town or village that a nuisance under
s. 823.113 (1) or
(1m) (b) exists in that tenant's rental unit or was caused by that tenant on the property owner's property and if the property owner gives the tenant written notice requiring the tenant to vacate on or before a date at least 5 days after the giving of the notice. The notice shall state the basis for its issuance and the right of the tenant to contest the termination of tenancy in an eviction action under
ch. 799. If the tenant contests the termination of tenancy, the tenancy may not be terminated without proof by the property owner by the greater preponderance of the credible evidence of the allegation in the notice from the law enforcement agency of a city, town or village that a nuisance under
s. 823.113 (1) or
(1m) (b) exists in that tenant's rental unit or was caused by that tenant.
704.17(3)(a)(a) If a tenant under a lease for more than one year fails to pay rent when due, or commits waste, or breaches any other covenant or condition of the tenant's lease, the tenancy is terminated if the landlord gives the tenant notice requiring the tenant to pay the rent, repair the waste, or otherwise comply with the lease on or before a date at least 30 days after the giving of the notice, and if the tenant fails to comply with the notice. A tenant is deemed to be complying with the notice if promptly upon receipt of the notice the tenant takes reasonable steps to remedy the default and proceeds with reasonable diligence, or if damages are adequate protection for the landlord and the tenant makes a bona fide and reasonable offer to pay the landlord all damages for the tenant's breach; but in case of failure to pay rent, all rent due must be paid on or before the date specified in the notice.
704.17(3)(b)
(b) A property owner may terminate the tenancy of a tenant who is under a lease for a term of more than one year if the property owner receives written notice from a law enforcement agency of a city, town or village that a nuisance under
s. 823.113 (1) or
(1m) (b) exists in that tenant's rental unit or was caused by that tenant on the property owner's property and if the property owner gives the tenant written notice to vacate on or before a date at least 5 days after the giving of the notice. The notice shall state the basis for its issuance and the right of the tenant to contest the termination of tenancy in an eviction action under
ch. 799. If the tenant contests the termination of tenancy, the tenancy may not be terminated without proof by the property owner by the greater preponderance of the credible evidence of the allegation in the notice from the law enforcement agency of a city, town or village that a nuisance under
s. 823.113 (1) or
(1m) (b) exists in that tenant's rental unit or was caused by that tenant.
704.17(4)
(4) Form of notice and manner of giving. Notice must be in writing and given as specified in
s. 704.21. If so given, the tenant is not entitled to possession or occupancy of the premises after the date of termination specified in the notice.
704.17(5)
(5) Contrary provision in the lease. Provisions in the lease or rental agreement for termination contrary to this section are invalid except in leases for more than one year.
704.17 Annotation
Only a limited number of defenses may be raised in an eviction action, including such defenses as the landlord's title to the premises and whether the eviction was in retaliation for the tenant's reporting housing violations, but not including those raised by defendants as to violation of federal antitrust and state franchise laws—as well as public policy defenses. Clark Oil & Refining Corp. v. Leistikow, 69 W (2d) 226, 230 NW (2d) 736.
704.17 Annotation
Absent notice of termination, the violation of the terms of a lease that required landlord permission for long term guests did not result in in the tenants losing their rights to possession of the property. Consequently the tenants' guests were on the premises with the legal possessor's permission and were not trespassers. Johnson v. Blackburn, 220 W (2d) 260, 582 NW (2d) 488 (Ct. App. 1998).
704.19
704.19
Notice necessary to terminate periodic tenancies and tenancies at will. 704.19(1)
(1)
Scope of section. The following types of tenancies, however created, are subject to this section:
704.19(1)(a)
(a) A periodic tenancy, whether a tenancy from year-to-year, from month-to-month, or for any other periodic basis according to which rent is regularly payable; and
704.19(2)(a)(a) A periodic tenancy or a tenancy at will can be terminated by either the landlord or the tenant only by giving to the other party written notice complying with this section, unless any of the following conditions is met:
704.19(2)(a)1.
1. The parties have agreed expressly upon another method of termination and the parties' agreement is established by clear and convincing proof.
704.19(2)(a)2.
2. Termination has been effected by a surrender of the premises.
704.19(2)(b)
(b) A periodic tenancy can be terminated by notice under this section only at the end of a rental period. In the case of a tenancy from year-to-year the end of the rental period is the end of the rental year even though rent is payable on a more frequent basis. Nothing in this section prevents termination of a tenancy for nonpayment of rent or breach of any other condition of the tenancy, as provided in
s. 704.17.
704.19(3)
(3) Length of notice. At least 28 days' notice must be given except in the following cases: If rent is payable on a basis less than monthly, notice at least equal to the rent-paying period is sufficient; all agricultural tenancies from year-to-year require at least 90 days' notice.
704.19(4)
(4) Contents of notice. Notice must be in writing, formal or informal, and substantially inform the other party to the landlord-tenant relation of the intent to terminate the tenancy and the date of termination. A notice is not invalid because of errors in the notice which do not mislead, including omission of the name of one of several landlords or tenants.
704.19(5)
(5) Effect of inaccurate termination date in notice. If a notice provides that a periodic tenancy is to terminate on the first day of a succeeding rental period rather than the last day of a rental period, and the notice was given in sufficient time to terminate the tenancy at the end of the rental period, the notice is valid; if the notice was given by the tenant, the landlord may require the tenant to remove on the last day of the rental period, but if the notice was given by the landlord the tenant may remove on the last day specified in the notice. If a notice specified any other inaccurate termination date, because it does not allow the length of time required under
sub. (3) or because it does not correspond to the end of a rental period in the case of a periodic tenancy, the notice is valid but not effective until the first date which could have been properly specified in such notice subsequent to the date specified in the notice, but the party to whom the notice is given may elect to treat the date specified in the notice as the legally effective date. If a notice by a tenant fails to specify any termination date, the notice is valid but not effective until the first date which could have been properly specified in such notice as of the date the notice is given.
704.19(6)
(6) Tenant moving out without notice. If any periodic tenant vacates the premises without notice to the landlord and fails to pay rent when due for any period, such tenancy is terminated as of the first date on which it would have terminated had the landlord been given proper notice on the day the landlord learns of the removal.
704.19(7)
(7) When notice given. Notice is given on the day specified below, which is counted as the first day of the notice period:
704.19(7)(c)
(c) The 2nd day after the day of mailing if the mail is addressed to a point within the state, and the 5th day after the day of mailing in all other cases, under
s. 704.21 (1) (d) and
(2) (c);
704.19(8)
(8) Effect of notice. If a notice is given as required by this section, the tenant is not entitled to possession or occupancy of the premises after the date of termination as specified in the notice.
704.19 History
History: 1993 a. 486;
1995 a. 225.
704.19 Annotation
A landlord cannot evict a tenant solely because the tenant has reported building code violations. Dickhut v. Norton, 45 W (2d) 389, 173 NW (2d) 297.
704.19 Annotation
Retaliatory eviction as a defense. 54 MLR 239.
704.19 Annotation
Landlords' liability for defective premises: caveat lessee, negligence, or strict liability? Love, 1975 WLR 19.
704.21
704.21
Manner of giving notice. 704.21(1)
(1)
Notice by landlord. Notice by the landlord or a person in the landlord's behalf must be given under this chapter by one of the following methods:
704.21(1)(a)
(a) By giving a copy of the notice personally to the tenant or by leaving a copy at the tenant's usual place of abode in the presence of some competent member of the tenant's family at least 14 years of age, who is informed of the contents of the notice;
704.21(1)(b)
(b) By leaving a copy with any competent person apparently in charge of the rented premises or occupying the premises or a part thereof, and by mailing a copy by regular or other mail to the tenant's last-known address;
704.21(1)(c)
(c) If notice cannot be given under
par. (a) or
(b) with reasonable diligence, by affixing a copy of the notice in a conspicuous place on the rented premises where it can be conveniently read and by mailing a copy by regular or other mail to the tenant's last-known address;
704.21(1)(d)
(d) By mailing a copy of the notice by registered or certified mail to the tenant at the tenant's last-known address;
704.21(1)(e)
(e) By serving the tenant as prescribed in
s. 801.11 for the service of a summons.
704.21(2)
(2) Notice by tenant. Notice by the tenant or a person in the tenant's behalf must be given under this chapter by one of the following methods:
704.21(2)(a)
(a) By giving a copy of the notice personally to the landlord or to any person who has been receiving rent or managing the property as the landlord's agent, or by leaving a copy at the landlord's usual place of abode in the presence of some competent member of the landlord's family at least 14 years of age, who is informed of the contents of the notice;
704.21(2)(b)
(b) By giving a copy of the notice personally to a competent person apparently in charge of the landlord's regular place of business or the place where the rent is payable;
704.21(2)(c)
(c) By mailing a copy by registered or certified mail to the landlord at the landlord's last-known address or to the person who has been receiving rent or managing the property as the landlord's agent at that person's last-known address;
704.21(2)(d)
(d) By serving the landlord as prescribed in
s. 801.11 for the service of a summons.
704.21(3)
(3) Corporation or partnership. If notice is to be given to a corporation notice may be given by any method provided in
sub. (1) or
(2) except that notice under
sub. (1) (a) or
(2) (a) may be given only to an officer, director, registered agent or managing agent, or left with an employe in the office of such officer or agent during regular business hours. If notice is to be given to a partnership, notice may be given by any method in
sub. (1) or
(2) except that notice under
sub. (1) (a) or
(2) (a) may be given only to a general partner or managing agent of the partnership, or left with an employe in the office of such partner or agent during regular business hours, or left at the usual place of abode of a general partner in the presence of some competent member of the general partner's family at least 14 years of age, who is informed of the contents of the notice.
704.21(4)
(4) Notice to one of several parties. If there are 2 or more landlords or 2 or more cotenants of the same premises, notice given to one is deemed to be given to the others also.
704.21(5)
(5) Effect of actual receipt of notice. If notice is not properly given by one of the methods specified in this section, but is actually received by the other party, the notice is deemed to be properly given; but the burden is upon the party alleging actual receipt to prove the fact by clear and convincing evidence.
704.21 History
History: Sup. Ct. Order, 67 W (2d) 585, 777 (1975);
1993 a. 486.
704.22
704.22
Service of process in residential tenancy on nonresident party. 704.22(1)(1) A party to a residential tenancy in this state who is not a resident of this state shall designate an agent to accept service of process in this state for an action involving the tenancy. The agent shall be a resident of this state or a corporation authorized to do business in this state. If a party is a corporation, the agent is the corporation's registered agent.
704.22(2)
(2) Designation of an agent under
sub. (1) shall be in writing and filed with the department of financial institutions.
704.22 History
History: 1981 c. 300;
1995 a. 27.
704.23
704.23
Removal of tenant on termination of tenancy. If a tenant remains in possession without consent of the tenant's landlord after termination of the tenant's tenancy, the landlord may in every case proceed in any manner permitted by law to remove the tenant and recover damages for such holding over.
704.23 History
History: 1993 a. 486.
704.25
704.25
Effect of holding over after expiration of lease; removal of tenant. 704.25(1)(1)
Removal and recovery of damages. If a tenant holds over after expiration of a lease, the landlord may in every case proceed in any manner permitted by law to remove the tenant and recover damages for such holding over.
704.25(2)
(2) Creation of periodic tenancy by holding over. 704.25(2)(a)(a) Nonresidential leases for a year or longer. If premises are leased for a year or longer primarily for other than private residential purposes, and the tenant holds over after expiration of the lease, the landlord may elect to hold the tenant on a year-to-year basis.
704.25(2)(b)
(b)
All other leases. If premises are leased for less than a year for any use, or if leased for any period primarily for private residential purposes, and the tenant holds over after expiration of the lease, the landlord may elect to hold the tenant on a month-to-month basis; but if such lease provides for a weekly or daily rent, the landlord may hold the tenant only on the periodic basis on which rent is computed.
704.25(2)(c)
(c)
When election takes place. Acceptance of rent for any period after expiration of a lease or other conduct manifesting the landlord's intent to allow the tenant to remain in possession after the expiration date constitutes an election by the landlord under this section unless the landlord has already commenced proceedings to remove the tenant.
704.25(3)
(3) Terms of tenancy created by holding over. A periodic tenancy arising under this section is upon the same terms and conditions as those of the original lease except that any right of the tenant to renew or extend the lease, or to purchase the premises, or any restriction on the power of the landlord to sell without first offering to sell the premises to the tenant, does not carry over to such a tenancy.
704.25(4)
(4) Effect of contrary agreement. This section governs except as the parties agree otherwise either by the terms of the lease itself or by an agreement at any subsequent time.
704.25(5)
(5) Holdover by assignee or subtenant. If an assignee or subtenant holds over after the expiration of the lease, the landlord may either elect to:
704.25(5)(a)
(a) Hold the assignee or subtenant or, if he or she participated in the holding over, the original tenant as a periodic tenant under
sub. (2); or
704.25(5)(b)
(b) Remove any person in possession and recover damages from the assignee or subtenant or, if the landlord has not been accepting rent directly from the assignee or subtenant, from the original tenant.
704.25(6)
(6) Notice terminating a tenancy created by holding over. Any tenancy created pursuant to this section is terminable under
s. 704.19.
704.25 History
History: 1983 a. 36.
704.27
704.27
Damages for failure of tenant to vacate at end of lease or after notice. If a tenant remains in possession without consent of the tenant's landlord after expiration of a lease or termination of a tenancy by notice given by either the landlord or the tenant, or after termination by valid agreement of the parties, the landlord may recover from the tenant damages suffered by the landlord because of the failure of the tenant to vacate within the time required. In absence of proof of greater damages, the landlord may recover as minimum damages twice the rental value apportioned on a daily basis for the time the tenant remains in possession. As used in this section, rental value means the amount for which the premises might reasonably have been rented, but not less than the amount actually paid or payable by the tenant for the prior rental period, and includes the money equivalent of any obligations undertaken by the tenant as part of the rental agreement, such as payment of taxes, insurance and repairs.
704.27 History
History: 1993 a. 486.
704.27 Annotation
This section requires a minimum award of double rent where greater damages have not been proved. Vincenti v. Stewart, 107 W (2d) 651, 321 NW (2d) 340 (Ct. App. 1982).
704.27 Annotation
"Rental value" includes only those obligations tenant is required to pay during holdover period regardless of whether or not tenant uses premises. Univest Corp. v. General Split Corp. 148 W (2d) 29, 435 NW (2d) 234 (1989).
704.29
704.29
Recovery of rent and damages by landlord; mitigation. 704.29(1)(1)
Scope of section. If a tenant unjustifiably removes from the premises prior to the effective date for termination of the tenant's tenancy and defaults in payment of rent, or if the tenant is removed for failure to pay rent or any other breach of a lease, the landlord can recover rent and damages except amounts which the landlord could mitigate in accordance with this section, unless the landlord has expressly agreed to accept a surrender of the premises and end the tenant's liability. Except as the context may indicate otherwise, this section applies to the liability of a tenant under a lease, a periodic tenant, or an assignee of either.
704.29(2)
(2) Measure of recovery. In any claim against a tenant for rent and damages, or for either, the amount of recovery is reduced by the net rent obtainable by reasonable efforts to rerent the premises. Reasonable efforts mean those steps which the landlord would have taken to rent the premises if they had been vacated in due course, provided that such steps are in accordance with local rental practice for similar properties. In the absence of proof that greater net rent is obtainable by reasonable efforts to rerent the premises, the tenant is credited with rent actually received under a rerental agreement minus expenses incurred as a reasonable incident of acts under
sub. (4), including a fair proportion of any cost of remodeling or other capital improvements. In any case the landlord can recover, in addition to rent and other elements of damage, all reasonable expenses of listing and advertising incurred in rerenting and attempting to rerent (except as taken into account in computing the net rent under the preceding sentence). If the landlord has used the premises as part of reasonable efforts to rerent, under
sub. (4) (c), the tenant is credited with the reasonable value of the use of the premises, which is presumed to be equal to the rent recoverable from the defendant unless the landlord proves otherwise. If the landlord has other similar premises for rent and receives an offer from a prospective tenant not obtained by the defendant, it is reasonable for the landlord to rent the other premises for the landlord's own account in preference to those vacated by the defaulting tenant.
704.29(3)
(3) Burden of proof. The landlord must allege and prove that the landlord has made efforts to comply with this section. The tenant has the burden of proving that the efforts of the landlord were not reasonable, that the landlord's refusal of any offer to rent the premises or a part thereof was not reasonable, that any terms and conditions upon which the landlord has in fact rerented were not reasonable, and that any temporary use by the landlord was not part of reasonable efforts to mitigate in accordance with
sub. (4) (c); the tenant also has the burden of proving the amount that could have been obtained by reasonable efforts to mitigate by rerenting.
704.29(4)
(4) Acts privileged in mitigation of rent or damages. The following acts by the landlord do not defeat the landlord's right to recover rent and damages and do not constitute an acceptance of surrender of the premises:
704.29(4)(a)
(a) Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;
704.29(4)(b)
(b) Rerenting the premises or a part thereof, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;
704.29(4)(c)
(c) Use of the premises by the landlord until such time as rerenting at a reasonable rent is practical, not to exceed one year, if the landlord gives prompt written notice to the tenant that the landlord is using the premises pursuant to this section and that the landlord will credit the tenant with the reasonable value of the use of the premises to the landlord for such a period;
704.29(4)(d)
(d) Any other act which is reasonably subject to interpretation as being in mitigation of rent or damages and which does not unequivocally demonstrate an intent to release the defaulting tenant.
704.29 History
History: 1993 a. 486.
704.29 Annotation
Sale of property constituted acceptance of surrender of premises and termination of lease. First Wis. Trust Co. v. L. Wiemann Co. 93 W (2d) 258, 286 NW (2d) 360 (1980).
704.29 Annotation
Court's retention of jurisdiction to determine damages for rents not yet due is permitted. Mitigation expenses which may be recovered are limited to necessary expenses incurred and does not include compensation for time spent in mitigating damages. Kersten v. H.C. Prange Co. 186 W(2d) 49, 520 NW(2d) 99 (Ct. App. 1994).
704.29 Annotation
Landlord has obligation to rerent when tenant breaches lease; specific performance is not proper remedy. Chi-Mil. Corp. v. W. T. Grant Co. 422 F Supp. 46.
704.31
704.31
Remedy on default in long terms; improvements. 704.31(1)(1) If there is a default in the conditions in any lease or a breach of the covenants thereof and such lease provides for a term of 30 years or more and requires the tenant to erect or construct improvements or buildings upon the land demised at the tenant's own cost and exceeding in value the sum of $50,000, and such improvements have been made and the landlord desires to terminate the lease and recover possession of the property described therein freed from all liens, claims or demands of such lessee, the landlord may, in case of any breach or default, commence an action against the tenant and all persons claiming under the tenant to recover the possession of the premises leased and proceed in all respects as if the action was brought under the statute to foreclose a mortgage upon real estate, except that no sale of the premises shall be ordered.
704.31(2)
(2) The judgment shall determine the breach or default complained of, fix the amount due the landlord at such time, and state the several amounts to become due within one year from the entry thereof, and provide that unless the amount adjudged to be due from the tenant, with interest thereon as provided in the lease or by law, shall be paid to the landlord within one year from the entry thereof and the tenant shall, within such period, fully comply with the judgment requiring the tenant to make good any default in the conditions of the lease, that the tenant and those claiming under the tenant shall be forever barred and foreclosed of any title or interest in the premises described in the lease and that in default of payment thereof within one year from the entry of the judgment the tenant shall be personally liable for the amount thereof. During the one-year period ensuing the date of the entry of the judgment the possession of the demised premises shall remain in the tenant and the tenant shall receive the rents, issues and profits thereof; but if the tenant fails to comply with the terms of the judgment and the same is not fully satisfied, and refuses to surrender the possession of the demised premises at the expiration of said year, the landlord shall be entitled to a writ of assistance or execution to be issued and executed as provided by law.
