CHAPTER 704
LANDLORD AND TENANT
704.03 Requirement of writing for rental agreements and termination.
704.05 Rights and duties of landlord and tenant in absence of written agreement to contrary.
704.06 Water heater thermostat settings.
704.07 Repairs; untenantability.
704.09 Transferability; effect of assignment or transfer; remedies.
704.13 Acts of tenant not to affect rights of landlord.
704.15 Requirement that landlord notify tenant of automatic renewal clause.
704.16 Termination of tenancy for imminent threat of serious physical harm.
704.17 Notice terminating tenancies for failure to pay rent or other breach by tenant.
704.19 Notice necessary to terminate periodic tenancies and tenancies at will.
704.21 Manner of giving notice.
704.22 Service of process in residential tenancy on nonresident party.
704.23 Removal of tenant on termination of tenancy.
704.25 Effect of holding over after expiration of lease; removal of tenant.
704.27 Damages for failure of tenant to vacate at end of lease or after notice.
704.29 Recovery of rent and damages by landlord; mitigation.
704.31 Remedy on default in long terms; improvements.
704.40 Remedies available when tenancy dependent upon life of another terminates.
704.44 Rental agreement that restricts access to certain services is void.
704.45 Retaliatory conduct in residential tenancies prohibited.
704.50 Disclosure duty; immunity for providing notice about the sex offender registry.
704.90 Self-service storage facilities.
Ch. 704 Cross-reference
Cross Reference: See also ch.
ATCP 134, Wis. adm. code.
704.01
704.01
Definitions. In this chapter, unless the context indicates otherwise:
704.01(1)
(1) "Lease" means an agreement, whether oral or written, for transfer of possession of real property, or both real and personal property, for a definite period of time. A lease is for a definite period of time if it has a fixed commencement date and a fixed expiration date or if the commencement and expiration can be ascertained by reference to some event, such as completion of a building. A lease is included within this chapter even though it may also be treated as a conveyance under
ch. 706. An agreement for transfer of possession of only personal property is not a lease.
704.01(2)
(2) "Periodic tenant" means a tenant who holds possession without a valid lease and pays rent on a periodic basis. It includes a tenant from day-to-day, week-to-week, month-to-month, year-to-year or other recurring interval of time, the period being determined by the intent of the parties under the circumstances, with the interval between rent-paying dates normally evidencing that intent.
704.01(3)
(3) "Premises" mean the property covered by the lease, including not only the realty and fixtures, but also any personal property furnished with the realty.
704.01(3m)
(3m) "Rental agreement" means an oral or written agreement between a landlord and tenant, for the rental or lease of a specific dwelling unit or premises, in which the landlord and tenant agree on the essential terms of the tenancy, such as rent. "Rental agreement" includes a lease. "Rental agreement" does not include an agreement to enter into a rental agreement in the future.
704.01(4)
(4) "Tenancy" includes a tenancy under a lease, a periodic tenancy or a tenancy at will.
704.01(5)
(5) "Tenant at will" means any tenant holding with the permission of the tenant's landlord without a valid lease and under circumstances not involving periodic payment of rent; but a person holding possession of real property under a contract of purchase or an employment contract is not a tenant under this chapter.
704.01 Annotation
Landlords' liability for defective premises: caveat lessee, negligence, or strict liability? Love, 1975 WLR 19.
704.03
704.03
Requirement of writing for rental agreements and termination. 704.03(1)(1)
Original agreement. A lease for more than a year, or a contract to make such a lease, is not enforceable unless it meets the requirements of
s. 706.02 and in addition sets forth the amount of rent or other consideration, the time of commencement and expiration of the lease and a reasonably definite description of the premises, or unless a writing signed by the landlord and the tenant sets forth the amount of rent or other consideration, the duration of the lease and a reasonably definite description of the premises and the commencement date is established by entry of the tenant into possession under the writing.
Sections 704.05 and
704.07 govern as to matters within the scope of such sections and not provided for in such written lease or contract.
704.03(2)
(2) Entry under unenforceable lease. If a tenant enters into possession under a lease for more than one year which does not meet the requirements of
sub. (1), and the tenant pays rent on a periodic basis, the tenant becomes a periodic tenant. If the premises in such case are used for residential purposes and the rent is payable monthly, the tenant becomes a month-to-month tenant; but if the use is agricultural or nonresidential, the tenant becomes a year-to-year tenant without regard to the rent-payment periods. Except for duration of the tenancy and matters within the scope of
ss. 704.05 and
704.07, the tenancy is governed by the terms and conditions agreed upon. Notice as provided in
s. 704.19 is necessary to terminate such a periodic tenancy.
704.03(3)
(3) Assignment. An assignment by the tenant of a leasehold interest which has an unexpired period of more than one year is not enforceable against the assignor unless the assignment is in writing reasonably identifying the lease and signed by the assignor; and any agreement to assume the obligations of the original lease which has an unexpired period of more than one year is not enforceable unless in writing signed by the assignee.
704.03(4)
(4) Termination of written lease prior to normal expiration date. An agreement to terminate a tenancy more than one year prior to the expiration date specified in a valid written lease is not enforceable unless it is in writing signed by both parties. Any other agreement between the landlord and tenant to terminate a lease prior to its normal expiration date, or to terminate a periodic tenancy or tenancy at will without the statutory notice required by
s. 704.19 may be either oral or written. Nothing herein prevents surrender by operation of law.
704.03(5)
(5) Proof. In any case where a lease or agreement is not in writing signed by both parties but is enforceable under this section, the lease or agreement must be proved by clear and convincing evidence.
704.03 History
History: 1993 a. 486.
704.03 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 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.
704.05
704.05
Rights and duties of landlord and tenant in absence of written agreement to contrary. 704.05(1)
(1)
When section applicable. So far as applicable, this section governs the rights and duties of the landlord and tenant in the absence of any inconsistent provision in writing signed by both the landlord and the tenant. This section applies to any tenancy.
704.05(2)
(2) Possession of tenant and access by landlord. Until the expiration date specified in the lease, or the termination of a periodic tenancy or tenancy at will, and so long as the tenant is not in default, the tenant has the right to exclusive possession of the premises, except as hereafter provided. The landlord may upon advance notice and at reasonable times inspect the premises, make repairs and show the premises to prospective tenants or purchasers; and if the tenant is absent from the premises and the landlord reasonably believes that entry is necessary to preserve or protect the premises, the landlord may enter without notice and with such force as appears necessary.
704.05(3)
(3) Use of premises, additions or alterations by tenant. The tenant can make no physical changes in the nature of the premises, including decorating, removing, altering or adding to the structures thereon, without prior consent of the landlord. The tenant cannot use the premises for any unlawful purpose nor in such manner as to interfere unreasonably with use by another occupant of the same building or group of buildings.
704.05(4)
(4) Tenant's fixtures. At the termination of the tenancy, the tenant may remove any fixtures installed by the tenant if the tenant either restores the premises to their condition prior to the installation or pays to the landlord the cost of such restoration. Where such fixtures were installed to replace similar fixtures which were part of the premises at the time of the commencement of the tenancy, and the original fixtures cannot be restored the tenant may remove fixtures installed by the tenant only if the tenant replaces them with fixtures at least comparable in condition and value to the original fixtures. The tenant's right to remove fixtures is not lost by an extension or renewal of a lease without reservation of such right to remove. This subsection applies to any fixtures added by the tenant for convenience as well as those added for purposes of trade, agriculture or business; but this subsection does not govern the rights of parties other than the landlord and tenant.
704.05(5)
(5) Storage or disposition of personalty left by tenant. 704.05(5)(a)(a)
Procedure. If a tenant removes from the premises and leaves personal property, the landlord may do all of the following:
704.05(5)(a)1.
1. Store the personalty, on or off the premises, with a lien on the personalty for the actual and reasonable cost of removal and storage or, if stored by the landlord, for the actual and reasonable value of storage. The landlord shall give written notice of the storage to the tenant within 10 days after the charges begin. The landlord shall give the notice either personally or by ordinary mail addressed to the tenant's last-known address and shall state the daily charges for storage. The landlord may not include the cost of damages to the premises or past or future rent due in the amount demanded for satisfaction of the lien. The landlord may not include rent charged for the premises in calculating the cost of storage. Medicine and medical equipment are not subject to the lien under this subdivision, and the landlord shall promptly return them to the tenant upon request.
704.05(5)(a)2.
2. Give the tenant notice, personally or by ordinary mail addressed to the tenant's last-known address, of the landlord's intent to dispose of the personal property by sale or other appropriate means if the property is not repossessed by the tenant. If the tenant fails to repossess the property within 30 days after the date of personal service or the date of the mailing of the notice, the landlord may dispose of the property by private or public sale or any other appropriate means. The landlord may deduct from the proceeds of sale any costs of sale and any storage charges if the landlord has first stored the personalty under
subd. 1. If the proceeds minus the costs of sale and minus any storage charges are not claimed within 60 days after the date of the sale of the personalty, the landlord is not accountable to the tenant for any of the proceeds of the sale or the value of the property. The landlord shall send the proceeds of the sale minus the costs of the sale and minus any storage charges to the department of administration for deposit in the appropriation under
s. 20.143 (2) (h).
704.05(5)(a)3.
3. Store the personalty without a lien and return it to the tenant.
704.05(5)(c)
(c)
Rights of 3rd persons. The landlord's lien and power to dispose as provided by this subsection apply to any property left on the premises by the tenant, whether owned by the tenant or by others. That lien has priority over any ownership or security interest, and the power to dispose under this subsection applies notwithstanding rights of others existing under any claim of ownership or security interest. The tenant or any secured party has the right to redeem the property at any time before the landlord has disposed of it or entered into a contract for its disposition by payment of the landlord's charges under
par. (a) for removal, storage, disposition and arranging for the sale.
704.05(5)(d)
(d)
Other procedure. The remedies of this subsection are not exclusive and shall not prevent the landlord from resorting to any other available judicial procedure.
704.05 Annotation
Any act of the landlord that so interferes with the tenant's enjoyment or possession of the premises as to render them unfit for occupancy for the purposes for which they were leased is an eviction releasing the tenant from the obligation to pay rent. First Wisconsin Trust Co. v. L. Wiemann Co.
93 Wis. 2d 258,
286 N.W.2d 360 (1980).
704.05 Annotation
An allegation in a lessee's complaint that the premises were undamaged did not relieve the lessor of the burden to prove damages. Rivera v. Eisenberg,
95 Wis. 2d 384,
290 N.W.2d 539 (Ct. App. 1980).
704.05 Annotation
Landlords' liability for defective premises: caveat lessee, negligence, or strict liability? Love, 1975 WLR 19.
704.06
704.06
Water heater thermostat settings. A landlord of premises which are subject to a residential tenancy and served by a water heater serving only that premises shall set the thermostat of that water heater at no higher than 125 degrees Fahrenheit before any new tenant occupies that premises or at the minimum setting of that water heater if the minimum setting is higher than 125 degrees Fahrenheit.
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 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,
293 Wis. 2d 392,
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,
293 Wis. 2d 392,
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).
