Judicial Council Note, 1983: Sub. (1) (c) liberalizes the time limit for reopening default judgments entered in improperly venued actions. This remedy supplements the court's authority under s. 799.11 (3) to correct venue on its own motion. [Bill 324-S]
Sub. (1) provides the exclusive procedure for reopening a default judgment in small claims proceedings. King v. Moore, 95 Wis. 2d 686
, 291 N.W.2d 304
(Ct. App. 1980).
An appeal of a judgment or order under this chapter shall be to the court of appeals.
Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1975 c. 218
; 1977 c. 187
; 1979 c. 32
; Stats. 1979 s. 799.30.
Eviction actions. 799.40(1)(1)
A civil action of eviction may be commenced by a person entitled to the possession of real property, or by that person's agent authorized in writing, to remove therefrom any person who is not entitled to either the possession or occupancy of such real property.
(1g) Notice terminating tenancy.
If a landlord gives a notice terminating tenancy under s. 704.16
, or 704.19
through certified mail in accordance with s. 704.21 (1) (d)
, proof of certified mailing from the United States post office shall be sufficient to establish that proper notice has been provided for the purpose of filing a complaint or otherwise demonstrating that proper notice has been given in an eviction action, and an affidavit of service may not be requested to establish that proper notice has been provided.
(1m) Acceptance of rent or other payment.
If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed because the landlord accepts past due rent or any other payment from the tenant after serving notice of default or after commencing the action.
(1s) No waiver by landlord or tenant.
It shall not be a defense to an action of eviction or a claim for damages that the landlord or tenant has previously waived any violation or breach of any of the terms of the rental agreement including, but not limited to, the acceptance of rent or that a custom or practice occurred or developed between the parties in connection with the rental agreement so as to waive or lessen the right of the landlord or tenant to insist upon strict performance of the terms of the rental agreement.
(2) Joinder of other claims.
The plaintiff may join with the claim for restitution of the premises any other claim against the defendant arising out of the defendant's possession or occupancy of the premises.
The court shall stay the proceedings in a civil action of eviction if the tenant applies for emergency assistance under s. 49.138
, except that no stay may be granted under this paragraph after a writ of restitution has been issued in the proceedings. If a stay is granted, the tenant shall inform the court of the outcome of the determination of eligibility for emergency assistance. The stay remains in effect until the tenant's eligibility for emergency assistance is determined and, if the tenant is determined to be eligible, until the tenant receives the emergency assistance, except that the stay may not remain in effect for more than 10 working days, as defined in s. 227.01 (14)
The court shall stay the proceedings in a civil action of eviction against a foreclosed homeowner, as defined in s. 846.40 (1) (b)
, under the circumstances and as provided in s. 846.40 (9)
Any act of the landlord that renders the premises unfit for occupancy relieves the tenant from the obligation of paying rent. Constructive eviction can only take place when the tenant abandons the premises within a reasonable time after a substantial breach of the lease. First Wisconsin Trust Co. v. L. Wiemann Co. 93 Wis. 2d 258
, 286 N.W.2d 360
Implicit in the sub. (4) mandate that a stay is required until the tenant receives the emergency assistance is a requirement that the tenant seek and find suitable permanent housing within a reasonable period of time and that the stay will remain in effect for only a reasonable period of time as determined by the judge under the circumstances in each individual case. McQuestion v. Crawford, 2009 WI App 35
, 316 Wis. 2d 494
, 765 N.W.2d 822
Eviction practice in Wisconsin. Boden. 54 MLR 298.
Burden of proof required to establish defense of retaliatory eviction. 1971 WLR 939.
Tenant eviction protection and takings clause. Manheim. 1989 WLR 925 (1989).
Complaint in eviction actions. 799.41(1)(1)
The complaint shall be in writing and subscribed by the plaintiff or attorney in accordance with s. 802.05
. The complaint shall identify the parties and the real property which is the subject of the action and state the facts which authorize the removal of the defendant. The description of real property is sufficient, whether or not it is specific, if it reasonably identifies what is described. A description by street name and number is sufficient. If the complaint relates only to a portion of described real estate, that portion shall be identified. If a claim in addition to the claim for restitution is joined under s. 799.40 (2)
, the claim shall be separately stated. The prayer shall be for the removal of the defendant or the property or both and, if an additional claim is joined, for the other relief sought by the plaintiff.
If the eviction seeks to remove a tenant whose tenancy is terminated as the result of a foreclosure judgment and sale under s. 708.02
, the complaint shall identify the action as an eviction of the tenant due to a foreclosure action.
Sup. Ct. Order, 67 Wis. 2d 585, 766 (1975); 1975 c. 218
; 1979 c. 32
, 92 (16)
; Stats. 1979 s. 799.41; 1987 a. 403
; 2009 a. 28
Service and filing in eviction actions.
The complaint shall be served with the summons when service is had under s. 799.12 (1)
, or (3)
History: 1979 c. 32
, 92 (16)
; Stats. 1979 s. 799.42; 1987 a. 208
; 2013 a. 76
Defendant's pleading in eviction actions.
The defendant may plead to the complaint orally or in writing, except that if the plaintiff's title is put in issue by the defendant, the answer shall be in writing and subscribed in the same manner as the complaint. Within the limitation of s. 799.02
the defendant may counterclaim provided that in construing s. 799.02
as applied to eviction actions, any claim related to the rented property shall be considered as arising out of the transaction or occurrence which is the subject matter of the plaintiff's claim.
Sup. Ct. Order, 67 Wis. 2d 585, 766 (1975); 1975 c. 218
; 1979 c. 32
, 92 (16)
; Stats. 1979 s. 799.43.
Counterclaims relating to oral agreements to pay increased rent, unfair trade practices, oral guarantees, and interference with quiet enjoyment were properly dismissed as extrinsic to a lease. Scalzo v. Anderson, 87 Wis. 2d 834
, 275 N.W.2d 894
Order for judgment; writ of restitution. 799.44(1)(1)
Order for judgment.
In an eviction action, if the court finds that the plaintiff is entitled to possession, the court shall immediately enter an order for judgment for the restitution of the premises to the plaintiff. If an additional cause of action is joined under s. 799.40 (2)
and plaintiff prevails thereon, the court shall enter judgment for such other relief as the court orders. Judgment shall be entered accordingly as provided in s. 799.24
(2) Writ of restitution.
At the time of ordering judgment for the restitution of premises, the court shall immediately order that a writ of restitution be issued, and the writ may be delivered to the sheriff for execution in accordance with s. 799.45
. No writ shall be executed if received by the sheriff more than 30 days after its issuance.
(3) Stay of writ of restitution.
At the time of ordering judgment, upon application of the defendant with notice to the plaintiff, the court may, in cases where it determines hardship to exist, stay the issuance of the writ by a period not to exceed 30 days from the date of the order for judgment. Any such stay shall be conditioned upon the defendant paying all rent or other charges due and unpaid at the entry of judgment and upon the defendant paying the reasonable value of the occupancy of the premises, including reasonable charges, during the period of the stay upon such terms and at such times as the court directs. The court may further require the defendant, as a condition of such stay, to give a bond in such amount and with such sureties as the court directs, conditioned upon the defendant's faithful performance of the conditions of the stay. Upon the failure of the defendant to perform any of the conditions of the stay, the plaintiff may file an affidavit executed by the plaintiff or attorney, stating the facts of such default, and the writ of restitution may forthwith be issued.
(4) Writ of restitution; form and contents.
The writ of restitution shall be in the name of the court, sealed with its seal, signed by its clerk, directed to the sheriff of the county in which the real property is located, and in substantially the following form:
(Venue and caption)
THE STATE OF WISCONSIN To the Sheriff of .... County:
The plaintiff, ...., of .... recovered a judgment against the defendant, ...., of ...., in an eviction action in the Circuit Court of .... County, on the .... day of ...., .... (year), to have restitution of the following described premises:
.... (description as in complaint), located in .... County, Wisconsin.
YOU ARE HEREBY COMMANDED To immediately remove the defendant, ...., from the said premises and to restore the plaintiff, ...., to the possession thereof. You are further commanded to remove from said premises all personal property not the property of the plaintiff, and to store and dispose of the same according to law, and to make due return of this writ within ten days.
Witness the Honorable ...., Judge of the said Circuit Court, this .... day of ...., .... (year)
History: 1977 c. 449
; 1979 c. 32
, 92 (16)
; 1979 c. 176
; Stats. 1979 s. 799.44; 1997 a. 250
; 2013 a. 76
An appeal in an eviction action shall be initiated within 15 days of the entry of judgment or order as specified in s. 808.04 (2)
. An order for judgment for restitution of the premises under s. 799.44 (1)
or for denial of restitution is appealable as a matter of right under s. 808.03 (1)
within 15 days after the entry of the order for judgment for restitution or for denial of restitution. An order for judgment for additional causes of action is appealable as a matter of right under s. 808.03 (1)
within 15 days after the entry of the order for judgment for the additional causes of action. No appeal by a defendant of an order for judgment for restitution of the premises may stay proceedings on the judgment unless the appellant serves and files with the notice of appeal an undertaking to the plaintiff, in an amount and with surety approved by the judge who ordered the entry of judgment. The undertaking shall provide that the appellant will pay all costs and disbursements of the appeal which may be taxed against the appellant, obey the order of the appellate court upon the appeal and pay all rent and other damages accruing to the plaintiff during the pendency of the appeal. Upon service and filing of this undertaking, all further proceedings in enforcement of the judgment appealed from are stayed pending the determination of the appeal. Upon service by the appellant of a copy of the notice and appeal and approved undertaking upon the sheriff holding an issued but unexecuted writ of restitution or of execution, the sheriff shall promptly cease all further proceedings pending the determination of the appeal. If the tenant fails to pay rent when due, or otherwise defaults in the terms of the undertaking, the payment guaranteed by the undertaking with surety shall be payable immediately to the plaintiff and shall not be held in escrow by the court. Upon the failure of the tenant to pay rent when due, or upon other default by the tenant in the terms of the undertaking, the stay of proceedings shall be dismissed and the sheriff shall immediately execute the writ of restitution.
History: 1983 a. 219
; 1993 a. 466
Judicial Council Note, 1983: This section is renumbered from s. 808.07 (7), and amended to replace the appeal deadline of 10 days after mailing notice of entry of judgment by the time period specified in s. 808.04 (2), for greater uniformity. The appeal deadline established by that statute applies regardless of whether the action has been tried to a 12-person jury. [Bill 151-S]
A tenant in an eviction may move for reconsideration of the judgment under s. 805.17 (3), but must take an appeal from the judgment within the time for appeal in this section. The time for filing an appeal under s. 805.17 (3) does not apply. Highland Manor Associates v. Bast, 2003 WI 152
, 268 Wis. 2d 1
, 672 N.W.2d 709
Execution of writ of restitution; disposal of personal property. 799.45(1)(1)
Upon delivery of a writ of restitution to the sheriff, and after payment to the sheriff of the fee required by s. 814.70 (8)
, the sheriff shall execute the writ. If the plaintiff, or the plaintiff's attorney or agent, does not notify the sheriff under sub. (3m)
that the plaintiff or his or her agent will remove and store or dispose of the property, the sheriff may require that prior to the execution of any writ of restitution the plaintiff deposit a reasonable sum representing the probable cost of removing the defendant's property chargeable to the plaintiff under s. 814.70 (8)
and of the services of deputies under s. 814.70 (8)
. In case of dispute as to the amount of the required deposit, the amount of that deposit shall be determined by the court under s. 814.70 (10)
(2) How executed; duties of sheriff.
In executing the writ of restitution the sheriff shall:
Remove from the premises described in the writ the person of the defendant and all other persons found upon the premises claiming under the defendant, using such reasonable force as is necessary.
If the plaintiff or his or her agent does not notify the sheriff under sub. (3m)
that the plaintiff or his or her agent will remove and store or dispose of the personal property, remove or supervise removal from the premises described in the writ, using such reasonable force as may be necessary, all personal property found in the premises not the property of the plaintiff.
If requested by the plaintiff or his or her agent, assist the plaintiff or his or her agent in the removal, under sub. (3m)
, of all personal property found in the premises described in the writ, not the property of the plaintiff, using such reasonable force as may be necessary.
Exercise ordinary care in the removal or supervision of removal of all persons from the premises, in the removal or supervision of removal of personal property under par. (b)
, and in the handling and storage of all property removed from the premises under par. (b)
(3) Manner of removal and disposition of removed goods by sheriff. 799.45(3)(a)(a)
In accomplishing the removal of property from the premises described in the writ, the sheriff is authorized to engage the services of a mover or trucker unless the plaintiff notifies the sheriff under sub. (3m)
that the plaintiff will remove and store or dispose of the property.
Except as provided in par. (c)
, the property removed from such premises under this subsection shall be taken to some place of safekeeping within the county selected by the sheriff. Within 3 days of the removal of the goods, the sheriff shall mail a notice to the defendant as specified in sub. (4)
stating the place where the goods are kept and shall deliver to the defendant any receipt or other document required to obtain possession of the goods. Warehouse or other similar receipts issued with respect to goods stored by the sheriff under this subsection shall be taken in the name of the defendant. All expenses incurred for storage and other like charges after delivery by the sheriff to a place of safekeeping shall be the responsibility of the defendant. Any person accepting goods from the sheriff for storage under this subsection shall have all of the rights and remedies accorded by law against the defendant personally and against the property stored for the collection of such charges, including the lien of a warehouse under s. 407.209
. Risk of damages to or loss of such property shall be borne by the defendant after delivery by the sheriff to the place of safekeeping.
When, in the exercise of ordinary care, the sheriff determines that property to be removed from premises described in the writ is without monetary value, the sheriff may deliver or cause the same to be delivered to some appropriate place established for the collection, storage, and disposal of refuse. In such case the sheriff shall notify the defendant as specified in sub. (4)
of the place to which the goods have been delivered within 3 days of the removal of the goods. The exercise of ordinary care by the sheriff under this subsection does not include searching apparently valueless property for hidden or secreted articles of value.
All of the rights and duties of the sheriff under this section may be exercised by or delegated to any of the deputies.
(3m) Alternative disposition of property by plaintiff.
When delivering a writ of restitution to the sheriff, as a complete alternative to the procedure for disposition of the property under sub. (3)
, the plaintiff or his or her attorney or agent may notify the sheriff that the plaintiff or the plaintiff's agent will be responsible for the removal and storage or disposal of the property that is found in the premises described in the writ and that does not belong to the plaintiff in accordance with s. 704.05 (5)
. If the sheriff is notified that the plaintiff or the plaintiff's agent will be responsible for the removal and storage or disposal of the property under this subsection, the sheriff shall, if requested by the plaintiff or his or her agent, supervise the removal and handling of the property by the plaintiff or the plaintiff's agent.
(4) Manner of giving notice to defendant.
All notices required by sub. (3)
to be given to the defendant by the sheriff shall be in writing and shall be personally served upon the defendant or mailed to the defendant at the last-known address, even if such address be the premises which are the subject of the eviction action.
(5) Return of writ; taxation of additional costs. 799.45(5)(a)(a)
Within 10 days of the receipt of the writ, the sheriff shall execute the writ and perform all of the duties required by this section and return the same to the court with the sheriff's statement of the expenses and charges incurred in the execution of the writ and paid by the plaintiff.
Upon receipt of the returned writ and statement from the sheriff, the clerk shall tax and insert in the judgment as prescribed by s. 799.25
the additional costs incurred by the plaintiff.
A sheriff was liable in his official capacity for actions of a deputy executing an untimely writ of restitution. Wolf-Lillie v. Sonquist, 699 F.2d 864
Warehousemen's liens may constitutionally be enforced against tenants dispossessed under s. 299.45, 1977 stats. [now s. 799.45]. Wegwart v. Eagle Movers, Inc. 441 F. Supp. 872