704.06 History
History: 1987 a. 102.
704.07
704.07
Repairs; untenantability. 704.07(1)
(1)
Application of section. This section applies to any nonresidential tenancy if there is no contrary provision in writing signed by both parties and to all residential tenancies. An agreement to waive the requirements of this section in a residential tenancy is void. Nothing in this section is intended to affect rights and duties arising under other provisions of the statutes.
704.07(2)(a)(a) Except for repairs made necessary by the negligence of, or improper use of the premises by, the tenant, the landlord has a duty to do all of the following:
704.07(2)(a)1.
1. Keep in a reasonable state of repair portions of the premises over which the landlord maintains control.
704.07(2)(a)2.
2. Keep in a reasonable state of repair all equipment under the landlord's control necessary to supply services that the landlord has expressly or impliedly agreed to furnish to the tenant, such as heat, water, elevator, or air conditioning.
704.07(2)(a)4.
4. Except for residential premises subject to a local housing code, and except as provided in
sub. (3) (b), repair or replace any plumbing, electrical wiring, machinery, or equipment furnished with the premises and no longer in reasonable working condition.
704.07(2)(a)5.
5. For a residential tenancy, comply with any local housing code applicable to the premises.
704.07(2)(b)
(b) If the premises are part of a building, other parts of which are occupied by one or more other tenants, negligence or improper use by one tenant does not relieve the landlord from the landlord's duty as to the other tenants to make repairs as provided in
par. (a).
704.07(2)(c)
(c) If the premises are damaged by fire, water or other casualty, not the result of the negligence or intentional act of the landlord, this subsection is inapplicable and either
sub. (3) or
(4) governs.
704.07(3)(a)(a) If the premises are damaged by the negligence or improper use of the premises by the tenant, the tenant must repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the repair or redecoration, and in such case the tenant must reimburse the landlord for the reasonable cost thereof; the cost to the landlord is presumed reasonable unless proved otherwise by the tenant.
704.07(3)(b)
(b) Except for residential premises subject to a local housing code, the tenant is also under a duty to keep plumbing, electrical wiring, machinery and equipment furnished with the premises in reasonable working order if repair can be made at cost which is minor in relation to the rent.
704.07(3)(c)
(c) A tenant in a residential tenancy shall comply with a local housing code applicable to the premises.
704.07(4)
(4) Untenantability. If the premises become untenantable because of damage by fire, water or other casualty or because of any condition hazardous to health, or if there is a substantial violation of
sub. (2) materially affecting the health or safety of the tenant, the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard or the substantial violation of
sub. (2) materially affecting the health or safety of the tenant; or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on the tenant. If the tenant remains in possession, rent abates to the extent the tenant is deprived of the full normal use of the premises. This section does not authorize rent to be withheld in full, if the tenant remains in possession. If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable. This subsection is inapplicable if the damage or condition is caused by negligence or improper use by the tenant.
704.07 Annotation
The remedy provided to the lessor by sub. (3) does not exclude diminution of market value as an alternative method of computing damages, and although the former is to be preferred where the property is easily repairable and the latter where the injury does not destroy the property, evidence of each method may be introduced by either party with the lesser amount awardable as the proper measure of damages. Laska v. Steinpreis,
69 Wis. 2d 307,
231 N.W.2d 196 (1975).
704.07 Annotation
A landlord must exercise ordinary care toward tenants and others on leased premises with permission. Pagelsdorf v. Safeco Insurance Co. of America,
91 Wis. 2d 734,
284 N.W.2d 55 (1979).
704.07 Annotation
Sub. (3) (a) requires a tenant to pay for damage that the tenant negligently causes to a landlord's property regardless of whether the landlord or landlord's insurer initially pays for the damage. Bennett v. West Bend Mutual Insurance Co.
200 Wis. 2d 313,
546 N.W.2d 204 (Ct. App. 1996),
95-2673.
704.07 Annotation
If there is no written lease, section 704.07 applies to the obligation to make repairs. For there to be a remedy for a a breach of a duty to repair other than that provided in s. 704.07, the obligation must be in a written lease signed by both parties. Halverson v. River Falls Youth Hockey Association,
226 Wis. 2d 105,
593 N.W.2d 895 (Ct. App. 1999),
98-2445.
704.07 Annotation
Sub. (2) does not authorize an independent cause of action for defective conditions that do not rise to the level of a health or safety hazard, but are nonetheless the result of the failure of a landlord to maintain equipment in a reasonable state of repair. Sub. (4) is the exclusive remedy for violations of sub. (2). Zehner v. Village of Marshall, 2006 WI App 6,
288 Wis. 2d 660,
709 N.W.2d 64,
04-2789.
704.07 Annotation
Sub. (2) (a) 3. does not require the landlord to make all structural repairs, only all necessary structural repairs, and implies that the landlord will have some notice of the defect, latent or obvious, so that he or she can evaluate whether a repair is, in fact, a necessary repair. Raymaker v. American Family Mutual Insurance Co. 2006 WI App 117, ___ Wis. 2d ___,
718 N.W.2d 154,
05-1557.
704.07 Annotation
Nothing in the history of the section suggests any intent by the legislature to impose negligence per se for a violation of this section. Rather, the legislature intended only to alter the common law rule to make the landlord and tenant more evenly share the duties of repair. Sub. (4) provides the tenant with the remedy of rent abatement if the landlord fails to fulfill his or her repair duties and to the extent the tenant is deprived of use of the premises, but this section does not provide a private cause of action. Raymaker v. American Family Mutual Insurance Co. 2006 WI App 117, ___ Wis. 2d ___,
718 N.W.2d 154,
05-1557.
704.07 Annotation
Landlord and tenant law—the implied warranty of habitability in residential leases. 58 MLR 191.
704.07 Annotation
Landlord no longer immune from tort liability for failure to exercise reasonable care in maintaining premises. 64 MLR 563 (1981).
704.09
704.09
Transferability; effect of assignment or transfer; remedies. 704.09(1)(1)
Transferability of interest of tenant or landlord. A tenant under a tenancy at will or any periodic tenancy less than year-to-year may not assign or sublease except with the agreement or consent of the landlord. The interest of any other tenant or the interest of any landlord may be transferred except as the lease expressly restricts power to transfer. A lease restriction on transfer is construed to apply only to voluntary transfer unless there is an express restriction on transfer by operation of law.
704.09(2)
(2) Effect of transfer on liability of transferor. In the absence of an express release or a contrary provision in the lease, transfer or consent to transfer does not relieve the transferring party of any contractual obligations under the lease, except in the special situation governed by
s. 704.25 (5).
704.09(3)
(3) Covenants which apply to transferee. All covenants and provisions in a lease which are not either expressly or by necessary implication personal to the original parties are enforceable by or against the successors in interest of any party to the lease. However, a successor in interest is liable in damages, or entitled to recover damages, only for a breach which occurs during the period when the successor holds his or her interest, unless the successor has by contract assumed greater liability; a personal representative may also recover damages for a breach for which the personal representative's decedent could have recovered.
704.09(4)
(4) Same procedural remedies. The remedies available between the original landlord and tenant are also available to or against any successor in interest to either party.
704.09(5)
(5) Consent as affecting subsequent transfers. If a lease restricts transfer, consent to a transfer or waiver of a breach of the restriction is not a consent or waiver as to any subsequent transfers.
704.09 History
History: 1971 c. 211 s.
126;
1993 a. 486.
704.11
704.11
Lien of landlord. Except as provided in
ss. 704.05 (5),
704.90 and
779.43 or by express agreement of the parties, the landlord has no right to a lien on the property of the tenant; the common-law right of a landlord to distrain for rent is abolished.
704.11 History
History: 1979 c. 32 s.
92 (9);
1987 a. 23 s.
2.
704.13
704.13
Acts of tenant not to affect rights of landlord. No act of a tenant in acknowledging as landlord a person other than the tenant's original landlord or the latter's successors in interest can prejudice the right of the original landlord or the original landlord's successors to possession of the premises.
704.13 History
History: 1993 a. 486.
704.15
704.15
Requirement that landlord notify tenant of automatic renewal clause. A provision in a lease of residential property that the lease shall be automatically renewed or extended for a specified period unless the tenant or either party gives notice to the contrary prior to the end of the lease is not enforceable against the tenant unless the lessor, at least 15 days but not more than 30 days prior to the time specified for the giving of such notice to the lessor, gives to the tenant written notice in the same manner as specified in
s. 704.21 calling the attention of the tenant to the existence of the provision in the lease for automatic renewal or extension.
704.15 History
History: 1993 a. 486.
704.17
704.17
Notice terminating tenancies for failure to pay rent or other breach by tenant. 704.17(1)
(1)
Month-to-month and week-to-week tenancies. 704.17(1)(a)(a) If a month-to-month tenant or a week-to-week tenant fails to pay rent when due, the tenant's tenancy is terminated if the landlord gives the tenant notice requiring the tenant to pay rent or vacate on or before a date at least 5 days after the giving of the notice and if the tenant fails to pay accordingly. A month-to-month tenancy is terminated if the landlord, while the tenant is in default in payment of rent, gives the tenant notice requiring the tenant to vacate on or before a date at least 14 days after the giving of the notice.
704.17(1)(b)
(b) If a month-to-month tenant commits waste or a material violation of
s. 704.07 (3) or breaches any covenant or condition of the tenant's agreement, other than for payment of rent, the tenancy can be terminated if the landlord gives the tenant notice requiring the tenant to vacate on or before a date at least 14 days after the giving of the notice.
704.17(1)(c)
(c) A property owner may terminate the tenancy of a week-to-week or month-to-month tenant if the property owner receives written notice from a law enforcement agency, as defined in
s. 165.83 (1) (b), or from the office of the district attorney, 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 or the office of the district attorney 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(2)
(2) Tenancies under a lease for one year or less, and year-to-year tenancies. 704.17(2)(a)(a) If a tenant under a lease for a term of one year or less, or a year-to-year tenant, fails to pay any installment of rent when due, the tenant's tenancy is terminated if the landlord gives the tenant notice requiring the tenant to pay rent or vacate on or before a date at least 5 days after the giving of the notice and if the tenant fails to pay accordingly. If a tenant has been given such a notice and has paid the rent on or before the specified date, or been permitted by the landlord to remain in possession contrary to such notice, and if within one year of any prior default in payment of rent for which notice was given the tenant fails to pay a subsequent installment of rent on time, the tenant's tenancy is terminated if the landlord, while the tenant is in default in payment of rent, gives the tenant notice to vacate on or before a date at least 14 days after the giving of the notice.
704.17(2)(b)
(b) If a tenant under a lease for a term of one year or less, or a year-to-year tenant, commits waste or a material violation of
s. 704.07 (3) or breaches any covenant or condition of the tenant's lease, other than for payment of rent, the tenant's tenancy is terminated if the landlord gives the tenant a notice requiring the tenant to remedy the default or vacate the premises on or before a date at least 5 days after the giving of the notice, and if the tenant fails to comply with such notice. A tenant is deemed to be complying with the notice if promptly upon receipt of such 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. If within one year from the giving of any such notice, the tenant again commits waste or breaches the same or any other covenant or condition of the tenant's lease, other than for payment of rent, the tenant's tenancy is terminated if the landlord, prior to the tenant's remedying the waste or breach, gives the tenant notice to vacate on or before a date at least 14 days after the giving of the notice.
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, as defined in
s. 165.83 (1) (b), or from the office of the district attorney, 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 or the office of the district attorney 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, as defined in
s. 165.83 (1) (b), or from the office of the district attorney, 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 or the office of the district attorney 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 defenses as to the landlord's title to the premises and whether the eviction was in retaliation for the tenant's reporting housing violations, but not including violations of federal antitrust and state franchise laws—as well as public policy defenses. Clark Oil & Refining Corp. v. Leistikow,
69 Wis. 2d 226,
230 N.W.2d 736 (1975).
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 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 Wis. 2d 260,
582 N.W.2d 488 (Ct. App. 1998),
97-1414.
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 Annotation
A landlord cannot evict a tenant solely because the tenant has reported building code violations. Dickhut v. Norton,
45 Wis. 2d 389,
173 N.W.2d 297 (1970).
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.
