Chapter 704

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.

704.17 Annotation Federal law, 42 USC 1437d (l) (6), preempts the right-to-remedy provision of sub. (2) (b) when a public housing tenant is evicted for engaging in “drug-related criminal activity” within the meaning of 42 USC 1437d (l). A right to cure past illegal drug activity is counter to Congress’ goal of providing drug-free public housing and is in conflict with Congress’ method of achieving that goal by allowing eviction of tenants who engage in drug-related criminal activity. Milwaukee City Housing Authority v. Cobb, 2015 WI 27, 361 Wis. 2d 359, 860 N.W.2d 267, 13-2207.

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(1)(b) (b) A tenancy at will.

704.19(2) (2) Requirement of notice.

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)(a)3. 3. Subsection (6) applies.

704.19(2)(b) (b)

704.19(2)(b)1. 1. 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.

704.19(2)(b)2. 2. Notwithstanding subd. 1., nothing in this section prevents termination of a tenancy before the end of a rental period because of an imminent threat of serious physical harm, as provided in s. 704.16, or for criminal activity or drug-related criminal activity, 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)(a) (a) The day of giving or leaving under s. 704.21 (1) (a) and (2) (a) and (b).

704.19(7)(b) (b) The day of leaving or affixing a copy or the date of mailing, whichever is later, under s. 704.21 (1) (b) and (c).

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(7)(d) (d) The day of service under s. 704.21 (1) (e) and (2) (d).

704.19(7)(e) (e) The day of actual receipt by the other party under s. 704.21 (5).

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; 2001 a. 103; 2007 a. 184; 2015 a. 176.

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 employee 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 employee 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 Wis. 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.

704.25 Annotation Upon the landlord’s acceptance of a holdover tenant’s monthly rent payment, both parties were bound to a one-year tenancy, on the same terms and conditions as set forth in the expired lease. The existence of a one-year holdover tenancy does not mean, however, that the landlord could not subsequently accept a surrender of the premises from the tenant and release the tenant from his or her obligations as a holdover tenant. Vander Wielen v. Van Asten, 2005 WI App 220, 287 Wis. 2d 726, 706 N.W.2d 123, 04-1788.

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 shall, at the landlord’s discretion, 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 shall 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. Nothing in this section prevents a landlord from seeking and recovering any other damages to which the landlord may be entitled.

704.27 History History: 1993 a. 486; 2011 a. 143.

704.27 Annotation This section requires a minimum award of double rent when greater damages have not been proved. Vincenti v. Stewart, 107 Wis. 2d 651, 321 N.W.2d 340 (Ct. App. 1982).

704.27 Annotation “Rental value” includes only those obligations that the tenant is required to pay during a holdover period regardless of whether or not the tenant uses the premises. Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 435 N.W.2d 234 (1989).

704.28 704.28 Withholding from and return of security deposits.

704.28(1) (1) Standard withholding provisions. When a landlord returns a security deposit to a tenant after the tenant vacates the premises, the landlord may withhold from the full amount of the security deposit only amounts reasonably necessary to pay for any of the following:

704.28(1)(a) (a) Except as provided in sub. (3), tenant damage, waste, or neglect of the premises.

704.28(1)(b) (b) Unpaid rent for which the tenant is legally responsible, subject to s. 704.29.

704.28(1)(c) (c) Payment that the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.

704.28(1)(d) (d) Payment that the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant’s nonpayment.

704.28(1)(e) (e) Unpaid monthly municipal permit fees assessed against the tenant by a local unit of government under s. 66.0435 (3), to the extent that the landlord becomes liable for the tenant’s nonpayment.

704.28(1)(f) (f) Any other payment for a reason provided in a nonstandard rental provision document described in sub. (2).

704.28(2) (2) Nonstandard rental provisions. Except as provided in sub. (3), a rental agreement may include one or more nonstandard rental provisions that authorize the landlord to withhold amounts from the tenant’s security deposit for reasons not specified in sub. (1) (a) to (e). Any such nonstandard rental provisions shall be provided to the tenant in a separate written document entitled “NONSTANDARD RENTAL PROVISIONS.” The landlord shall specifically identify each nonstandard rental provision with the tenant before the tenant enters into a rental agreement with the landlord. If the tenant signs his or her name, or writes his or her initials, by a nonstandard rental provision, it is rebuttably presumed that the landlord has specifically identified the nonstandard rental provision with the tenant and that the tenant has agreed to it.

704.28(3) (3) Normal wear and tear. This section does not authorize a landlord to withhold any amount from a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.

704.28(4) (4) Timing for return. A landlord shall deliver or mail to a tenant the full amount of any security deposit paid by the tenant, less any amounts that may be withheld under subs. (1) and (2), within 21 days after any of the following:

704.28(4)(a) (a) If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.

704.28(4)(b) (b) If the tenant vacates the premises or is evicted before the termination date of the rental agreement, the date on which the tenant’s rental agreement terminates or, if the landlord rerents the premises before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins.

704.28(4)(c) (c) If the tenant vacates the premises or is evicted after the termination date of the rental agreement, the date on which the landlord learns that the tenant has vacated the premises or has been removed from the premises under s. 799.45 (2).

704.28(5) (5) Application to residential tenancies. This section applies to residential tenancies only.

704.28 History History: 2011 a. 143; 2013 a. 76.

704.28 Cross-reference Cross-reference: See also s. ATCP 134.06, Wis. adm. code.

704.28 Annotation A reasonably prudent landlord would be able to understand, by reviewing the relevant statutes and administrative code provisions that, upon withholding some or all of a tenant’s security deposit, the landlord may be held criminally liable for failing to provide a tenant with a statement of withholdings. A landlord has sufficient notice that failure to comply with the requirements under s. ATCP 134.06 (4), Wis. Adm. Code, could result in a violation of s. 100.20 as an unfair business or trade practice and, therefore, could be criminally prosecuted under s. 100.26 (3). The statutory scheme is not void for vagueness and comports with due process in this regard. State v. Lasecki, 2020 WI App 36, 392 Wis. 2d 807, 946 N.W.2d 137, 18-2340.

704.28 Annotation Section 704.95 prohibits the Department of Agriculture, Trade and Consumer Protection from making different any right or duty originating from this chapter. Regarding security deposits, those rights or duties in this section pertain only to the incurred costs a landlord can lawfully withhold from a tenant’s security deposit and the time within which a landlord must return that deposit. Any obligation of a landlord to provide a withholdings statement to a tenant arises only under s. ATCP 134.06 (4), Wis. Adm. Code. Given that this chapter is silent on the topic of withholdings statements, nothing in s. ATCP 134.06 (4), Wis. Adm. Code, regarding withholdings statements “alters” or “makes different” anything originating from this chapter. Section 704.95 thus has no bearing on the department’s rulemaking authority over that subject matter. State v. Lasecki, 2020 WI App 36, 392 Wis. 2d 807, 946 N.W.2d 137, 18-2340.

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.