Landlords' liability for defective premises: caveat lessee, negligence, or strict liability? Love. 1975 WLR 19.
How Wisconsin Circuit Courts Can Ensure Proper Service in Eviction Actions After 2013 Wisconsin Act 76
. Ahrendt. 2014 WLR 1201.
Disposition of personalty left by trespasser. 704.055(1)(1)
In this section, “trespasser" means a person who is not a tenant and who enters or remains in residential rental property without the consent of the landlord or another person lawfully on the property.
If a trespasser is removed or otherwise removes from residential rental property and leaves personal property, the landlord shall hold the personal property for 7 days from the date on which the landlord discovers the personal property. After that time, the landlord may presume that the trespasser has abandoned the personal property and may dispose of the personal property in any manner that the landlord, in the landlord's sole discretion, determines is appropriate but shall promptly return the personal property to the trespasser if the landlord receives a request for its return before the landlord disposes of it.
If the landlord disposes of the abandoned personal property by private or public sale, the landlord may send the proceeds of the sale minus any costs of sale and, if the landlord has first stored the personal property, minus any storage charges to the department of administration for deposit in the appropriation under s. 20.505 (7) (h)
Rights of 3rd persons.
The landlord's power to dispose as provided by this section applies to any personal property left on the landlord's property by the trespasser, whether owned by the trespasser or by others. The power to dispose under this section applies notwithstanding any rights of others existing under any claim of ownership or security interest. The trespasser, other owner, or any secured party has the right to redeem the personal property at any time before the landlord has disposed of it or entered into a contract for its disposition by payment of any expenses that the landlord has incurred with respect to the disposition of the personal property.
History: 2015 a. 176
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.
History: 1987 a. 102
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, including an agreement in a rental agreement, is void. Nothing in this section is intended to affect rights and duties arising under other provisions of the statutes.
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:
Keep in a reasonable state of repair portions of the premises over which the landlord maintains control.
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.
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.
For a residential tenancy, comply with any local housing code applicable to the premises.
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)
A landlord shall disclose to a prospective tenant, before entering into a rental agreement with or accepting any earnest money or security deposit from the prospective tenant, any building code or housing code violation to which all of the following apply:
The violation affects the dwelling unit that is the subject of the prospective rental agreement or a common area of the premises.
The violation presents a significant threat to the prospective tenant's health or safety.
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)
If the premises are damaged, including by an infestation of insects or other pests, due to the acts or inaction of the tenant, the landlord may elect to allow the tenant to remediate or repair the damage and restore the appearance of the premises by redecorating. However, the landlord may elect to undertake the remediation, 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. Reasonable costs include any of the following:
Materials provided or labor performed by the landlord.
At a reasonable hourly rate, time the landlord spends doing any of the following:
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.
A tenant in a residential tenancy shall comply with a local housing code applicable to the premises.
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 and the condition materially affects the health or safety of the tenant or substantially affects the use and occupancy of the premises, 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.
Restriction of regulation of abatement.
An ordinance enacted by a city, town, village, or county regulating abatement of rent shall permit abatement only for conditions that materially affect the health or safety of the tenant or substantially affect the use and occupancy of the premises.
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
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
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
If there is no written lease, this section 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 this section, the obligation must be in a written lease signed by both parties. Halverson v. River Falls Youth Hockey Ass'n, 226 Wis. 2d 105
, 593 N.W.2d 895
(Ct. App. 1999), 98-2445
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
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
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
An appliance that cannot be used as intended without creating a risk of fire or electrocution is not in reasonable working condition and constitutes a substantial violation materially affecting the health or safety of the tenant under sub. (4), entitling the tenant to rent abatement. Boelter v. Tschantz, 2010 WI App 18
, 323 Wis. 2d 208
, 779 N.W.2d 467
Section 66.0104 (2) (d) 1. a. preempted a provision in an ordinance requiring landlords to notify tenants of city inspections under the city's inspection and registration program; it does not stop local governments from implementing rental housing inspection and registration programs as part of a housing code, let alone preclude other substantive housing code regulations. Olson v. City of La Crosse, 2015 WI App 67
, 364 Wis. 2d 615
, 869 N.W.2d 537
The term “repair" does not extend to routine cleaning. Thus cleaning carpets at the end of a tenancy does not fall within the sphere of duties assigned to landlords under sub. (2). Because carpet cleaning is not a landlord's legally-prescribed duty, including a provision in a residential rental agreement requiring the tenant to have carpets professionally cleaned does not waive the landlord's legal obligation. This section is silent with regard to the imposition of cleaning responsibilities, as distinct from repairs, leaving the parties free to assign responsibilities through lease provisions. OAG 4-13
Landlord and tenant law — the implied warranty of habitability in residential leases. 58 MLR 191.
Landlord no longer immune from tort liability for failure to exercise reasonable care in maintaining premises. 64 MLR 563 (1981).
Landlords' liability for defective premises: caveat lessee, negligence, or strict liability? Love. 1975 WLR 19.
A landlord shall provide to a new residential tenant when the tenant commences his or her occupancy of the premises a check-in sheet that the tenant may use to make comments, if any, about the condition of the premises. The tenant shall be given 7 days from the date the tenant commences his or her occupancy to complete the check-in sheet and return it to the landlord. The landlord is not required to provide the check-in sheet to a tenant upon renewal of a rental agreement. This section does not apply to the rental of a plot of ground on which a manufactured home, as defined in s. 704.05 (5) (b) 1. a.
, or a mobile home, as defined in s. 704.05 (5) (b) 1. b.
, may be located.
History: 2011 a. 143
; 2013 a. 76
Credit and background checks. 704.085(1)(a)
Except as provided under par. (b)
, a landlord may require a prospective tenant to pay the landlord's actual cost, up to $25, to obtain a consumer credit report on the prospective tenant from a consumer credit reporting agency that compiles and maintains files on consumers on a nationwide basis. The landlord shall notify the prospective tenant of the charge before requesting the consumer credit report, and shall provide the prospective tenant with a copy of the report.
A landlord may not require a prospective tenant to pay for a consumer credit report under par. (a)
if, before the landlord requests a consumer credit report, the prospective tenant provides the landlord with a consumer credit report, from a consumer credit reporting agency that compiles and maintains files on consumers on a nationwide basis, that is less than 30 days old.
A landlord may require a prospective tenant who is not a resident of this state to pay the landlord's actual cost, up to $25, to obtain a background check on the prospective tenant. The landlord shall notify the prospective tenant of the charge before requesting the background check and shall provide the prospective tenant with a copy of the report.
History: 2017 a. 317
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.
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)
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.
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.
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.
History: 1971 c. 211
; 1993 a. 486
A rental agreement may include a provision that permits the landlord to provide and indicate agreement by electronic means any of the following:
A copy of the rental agreement and any document related to the rental agreement.
A security deposit and any documents related to the accounting and disposition of the security deposit and security deposit refund.
A promise made before the initial rental agreement to clean, repair, or otherwise improve any portion of the premises.
History: 2017 a. 317
Lien of landlord.
Except as provided in ss. 704.90
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.
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.
History: 1993 a. 486
Notice of domestic abuse protections.
A residential rental agreement shall include the following notice in the agreement or in an addendum to the agreement:
NOTICE OF DOMESTIC ABUSE PROTECTIONS
As provided in section 106.50 (5m) (dm) of the Wisconsin statutes, a tenant has a defense to an eviction action if the tenant can prove that the landlord knew, or should have known, the tenant is a victim of domestic abuse, sexual assault, or stalking and that the eviction action is based on conduct related to domestic abuse, sexual assault, or stalking committed by either of the following:
A person who was not the tenant's invited guest.
A person who was the tenant's invited guest, but the tenant has done either of the following:
Sought an injunction barring the person from the premises.
Provided a written statement to the landlord stating that the person will no longer be an invited guest of the tenant and the tenant has not subsequently invited the person to be the tenant's guest.
A tenant who is a victim of domestic abuse, sexual assault, or stalking may have the right to terminate the rental agreement in certain limited situations, as provided in section 704.16 of the Wisconsin statutes. If the tenant has safety concerns, the tenant should contact a local victim service provider or law enforcement agency.
A tenant is advised that this notice is only a summary of the tenant's rights and the specific language of the statutes governs in all instances.
History: 2013 a. 76
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.
History: 1993 a. 486