(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.
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.
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.
(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.
(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.
(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:
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)
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.
(6) Notice terminating a tenancy created by holding over.
Any tenancy created pursuant to this section is terminable under s. 704.19
History: 1983 a. 36
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
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.
History: 1993 a. 486
; 2011 a. 143
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).
“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
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:
Except as provided in sub. (3)
, tenant damage, waste, or neglect of the premises.
Unpaid rent for which the tenant is legally responsible, subject to s. 704.29
Payment that the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.
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.
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.
Any other payment for a reason provided in a nonstandard rental provision document described in sub. (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)
. 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.
(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.
(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)
, within 21 days after any of the following:
If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.
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.
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)
(5) Application to residential tenancies.
This section applies to residential tenancies only.
History: 2011 a. 143
; 2013 a. 76
See also s. ATCP 134.06
, Wis. adm. code.
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
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
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.
In this subsection, “reasonable efforts" mean those steps that the landlord would have taken to rent the premises if they had been vacated in due course, provided that those steps are in accordance with local rental practice for similar properties.
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. 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.
(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.
(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:
Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;
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;
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;
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.
History: 1993 a. 486
; 1995 a. 85
Acceptance of the surrender of premises terminated the lease and deprived the landlord of the right to seek future rent. First Wisconsin Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258
, 286 N.W.2d 360
A court's retention of jurisdiction to determine damages for rents not yet due is permitted. Mitigation expenses that may be recovered are limited to necessary expenses incurred and do not include compensation for time spent in mitigating damages. Kersten v. H.C. Prange Co., 186 Wis. 2d 49
, 520 N.W.2d 99
(Ct. App. 1994).
A landlord may elect to accept the surrender of premises by a tenant, which terminates any further obligation of the tenant under the lease, but which also relieves the landlord from the obligation to apply payments from the new tenant to the former tenant's unpaid rental obligations. CCS North Henry, LLC v. Tully, 2001 WI App 8
, 240 Wis. 2d 534
, 624 N.W.2d 847
Whenever a landlord does not, by word or deed, accept the surrender of leased premises following a tenant's removal, the landlord must mitigate damages by attempting to re-rent the premises. If a landlord elects to hold the tenant to the tenancy, the landlord's re-renting the premises to another cannot, standing alone, constitute an acceptance of surrender of the premises. A landlord's actions in dealing exclusively with a successor tenant, proposing a new long-term lease to the successor, accepting higher rent from the successor as called for in the proposed lease, and failing to communicate in any way to the tenant that she deemed him responsible for the remainder of the tenancy clearly evidenced an intent to accept the tenant's surrender of the premises. Vander Wielen v. Van Asten, 2005 WI App 220
, 287 Wis. 2d 726
, 706 N.W.2d 123
A landlord has an obligation to rerent when a tenant breaches a lease. Specific performance is not a proper remedy. Chi-Mil. Corp. v. W.T. Grant Co., 422 F. Supp. 46
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.
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.
This section does not apply to a lease to which a local professional baseball park district created under subch. III of ch. 229
or the Fox River Navigational System Authority is a party.
Remedies available when tenancy dependent upon life of another terminates. 704.40(1)(1)
Any person occupying premises as tenant of the owner of a life estate or any person owning an estate for the life of another, upon cessation of the measuring life, is liable to the owner of the reversion or remainder for the reasonable rental value of the premises for any period the occupant remains in possession after termination of the life estate. Rental value as used in this section has the same meaning as rental value defined in s. 704.27
The owner of the reversion or remainder can remove the occupant in any lawful manner including eviction proceedings under ch. 799
If the occupant has no lease for a term, upon terminating the occupant's tenancy by giving notice as provided in s. 704.19
If the occupant is in possession under a lease for a term, upon termination of the lease or one year after written notice to the occupant given in the manner provided by s. 704.21
whichever occurs first, except that a farm tenancy can be terminated only at the end of a rental year.
The occupant must promptly after written demand give information as to the nature of the occupant's possession. If the occupant fails to do so, the reversioner or remainderman may treat the occupant as a tenant from month-to-month.
History: 1979 c. 32
s. 92 (16)
; 1993 a. 486
Residential rental agreement that contains certain provisions is void.
Notwithstanding s. 704.02
, a residential rental agreement is void and unenforceable if it does any of the following:
Allows a landlord to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services:
Bring an action for possession of the premises.
Authorizes the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799
Provides for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise waives the landlord's obligation to mitigate damages as provided in s. 704.29
Requires payment by the tenant of attorney fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This subsection does not prevent a landlord or tenant from recovering costs or attorney fees under a court order under ch. 799
Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.
States that the landlord is not liable for property damage or personal injury caused by negligent acts or omissions of the landlord. This subsection does not affect ordinary maintenance obligations of a tenant under s. 704.07
or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.
Imposes liability on a tenant for any of the following:
Personal injury arising from causes clearly beyond the tenant's control.
Property damage caused by natural disasters or by persons other than the tenant or the tenant's guests or invitees. This paragraph does not affect ordinary maintenance obligations of a tenant under s. 704.07
or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.
Waives any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition or to maintain the premises during the tenant's tenancy.
Allows the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property if the tenant, or someone who lawfully resides with the tenant, is the victim, as defined in s. 950.02 (4)
, of that crime.
Allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the notice required under s. 704.14
A provision requiring the tenant to pay for professional carpet cleaning, in the absence of negligence or improper use by the tenant, does not render a rental agreement void under sub. (8). Because routine carpet cleaning is not a statutorily-imposed obligation of a landlord, assigning this responsibility to a tenant through a contractual provision does not render a rental agreement void. OAG 4-13
Retaliatory conduct in residential tenancies prohibited. 704.45(1)(1)
Except as provided in sub. (2)
, a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises, refuse to renew a lease or threaten any of the foregoing, if there is a preponderance of evidence that the action or inaction would not occur but for the landlord's retaliation against the tenant for doing any of the following:
Making a good faith complaint about a defect in the premises to an elected public official or a local housing code enforcement agency.
Complaining to the landlord about a violation of s. 704.07
or a local housing code applicable to the premises.
Exercising a legal right relating to residential tenancies.