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Eviction

Also available as a PDF or en español for easy printing.

Purple bold or strikethrough language indicates changes under SB107 (Wis. Act 108). These apply to leases written after 12/21/11 or events that occur after that date, unless otherwise indicated in your lease. Have your lease available when calling the Tenant Resource Center so we can help you know what your rights are.

Red bold or strikethrough language indicates changes under SB466 (Wis. Act 143). These typically apply to leases written after 3/31/12 or events that occur after that date, unless otherwise indicated in your lease. Have your lease available when calling the Tenant Resource Center so we can help you know what your rights are.

IMPORTANT NOTE: Language adopted in SB466 or 2011 Wis. Act 143 indicates that any violation of chapter 704 may be an unfair trade practice and therefore entitled to double damages, court costs and reasonable attorney fees. 

704.95 "Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20.” 

This is in addition to the double damages, court costs and reasonable attorney fees that were allowed under DATCP 134. This means that any violation of tenant-landlord law by the landlord could be entitled to double damages, court costs and reasonable attorney fees.

What is an eviction?

An eviction is a process landlords may begin when they believe a tenant has seriously violated the lease, and they want the tenant to fix the problem or leave the apartment. The process usually begins with a notice giving the tenant at least 5 days to remedy a violation. The process may eventually end up in small claims court with a judge deciding whether the tenant stays (the case is settled by agreement or thrown out) or whether the tenant will be removed from the apartment. It is important to remember that in Wisconsin a tenant can only be evicted by a judge.

How does the process begin?

The first thing that should happen is that the landlord should identify tenant behavior that is a violation of the lease. There are many things tenants do that may be undesirable but if it's not a violation of the lease, the landlord cannot evict them for that reason.

The eviction process begins when the landlord serves or gives the tenant a written notice under Wis. Stat. 704.17

Types of Notices

Note: A notice that your lease will not be renewed or a 28-day notice to end a month-to-month tenancy are "non-renewal notices," NOT eviction notices.

The notice must be in writing (Wis. Stat. 704.17(4))and include the date, the amount of rent due or the lease clause that the tenant has supposedly violated, the type of notice, and the right to cure the problem, if the tenant has one. There are several types of eviction notices:

1. 5-day Pay or Quit Notice is a warning that the tenant is late with rent. The landlord can only give this notice at a point when the rent is late. This notice can be cured. By law, the landlord has to allow tenants at least 5 days (not counting the day it is served, Saturday or Sunday, according to Wis. Stat. 801.15(1)(b)) to pay all overdue rent. Wis. Stat. 704.17(1)(a) & (2)(a) Your county, community action agency, or churches might assist in paying the rent if you cannot pay it. Some tenants mistakenly think they have to leave after receiving this notice! To avoid a court summons the tenant has to pay all that is owed or work out a plan with the landlord. Many landlords will enter into payment agreements with the tenant. It is always a good idea to talk to the landlord to see if you can reach an agreement. Often the landlord wants to avoid court as much as the tenant does. Tenants may want to send a dated letter that explains how much rent is attached and any payment plan that was agreed to. Tenants should keep a copy of the letter and check for documentation that they paid within the time required. If a landlord refuses to take your money, make sure to document that as well.
2. 5-day Notice for Non-Rent Violation is a warning that the tenant damaged property or violated a lease rule. The landlord has to allow tenants at least 5 days, and the tenant is only required to promptly take "reasonable steps" to stop the violation, or make a "reasonable offer" to pay the landlord in the case of damages to the unit if it is a written lease that is not month-to-month. Wis. Stat. 704.17(2)(b) Tenants should keep a copy of a letter to the landlord that either denies any violation, or explains that the tenant has taken reasonable steps to cure, or remedy, it (like turning down the stereo or getting rid of a keg of beer) within 5 days. Remember, the landlord has the responsibility to prove to the judge that you violated your lease and it is often hard to prove, so they rarely go to court to evict someone for behavior issues.
3. 14-day no-right-to-cure Notice orders you to move within a period of at least 14 days even if you fix the problem. The tenant has no right to cure! Landlords can give this notice to week-to-week and month-to-month tenants. Tenants with rental agreements of more than a month can only be given this notice if they already received a 5-day for the same violation type (rent or non-rent) within the previous 12 months. Wis. Stat. 704.17(1)(a) & (b) and 704.17(2)(b)
4. 5-day notice with no right to cure is rare. It can be given by the landlord only if a law enforcement agency gives the landlord a notice that their property is a "drug nuisance" (drug manufacture, delivery or selling is done by the tenant or done in the tenant's unit). A tenant can challenge this termination (do it in writing to the landlord and keep a copy), and then the landlord must let the tenant stay or schedule a court hearing and prove the "drug nuisance" to a judge. Wis. Stat 704.17(1)(c), (2)(c) and (3)(b)
5. 30-day notice to cure is served only to tenants with a lease for more than a year, giving them at least 30 days to pay late rent or take steps to stop violating lease rules. Wis. Stat. 704.17(3)(a)

Can landlords give either a 5 or 14-day notice?

If the tenant is on a rental agreement for a year or less, the landlord must serve the tenant with a 5-day notice for the first lease violation. If the tenant commits a violation in the same category (rent or other non-rent violations) within 12 months after the 5-day notice was given, the landlord may serve either a 5- or 14-day notice. Wis. Stat. 704.17(2)

If the tenant has a month-to-month rental agreement, the landlord may give a 5- or 14-day notice for the first rent payment violation or substantial violation of the lease. Wis. Stat. 704.17(1)

Delivering the Notice

Note: A landlord's eviction notice is not the same as a Summons and Complaint from Small Claims Court which has to be served by someone who is not a party to the case.

The landlord should try to give the notice to the tenant or someone in the tenant's family over the age of 14. If the landlord has tried that, he or she may post a copy of the notice in an obvious place on the rented premises and mail a copy to the tenant's last known address, or send it by registered mail. However, if the tenant acknowledges that they actually received the notice, it does not matter what method of service the landlord used. Wis. Stat 704.21 (1) & (5)

Responding to the notice

Once you receive a 5-, 14-, or 30-day notice, you have three options:

1. Fix the problem and remain in the apartment, if applicable.

If you received a 5-day notice and you pay the full rent due or take reasonable steps to fix another type of violation within the time limit (the day served, Saturday, and Sunday do not count (Wis. Stat. 801.15(1)), then you have the right to remain in the apartment. The landlord does not have the right to remove you, go to court or to refuse a rent payment from you. Write a dated letter to the landlord saying the problem is cured and keep a copy. If you received a 14-day notice and fix the problem (remembering to document that you cured with a copied letter) you would have to negotiate with your landlord to stay. With a 14-day notice, or after the 5-day notice expires, the landlord could refuse your rent and file an eviction complaint to schedule a small claims court hearing. If you reach a settlement, try to get any agreement in writing, signed by all parties, and keep a copy.

SB466 or Wisconsin Act 143 made it clear that if the landlord files in court and accepts your rent after the 5-, 14- or 30-day notice expires, you could still be evicted by the court unless you can show another reason why you should not be evicted. The fact that the landlord accepted your rent cannot be the sole defense in an eviction action. Wis. Stat. 799.40(1m)

2. Contest the violation and stay.

You might wish to stay if you believe the landlord had no legal reason for giving the notice. Remember, you have a right to a trial and the landlord will need to pay a filing fee, wait for a hearing, and prove you violated the lease and that proper notices were given. Often times, an agreement is reached at court. Sometimes evictions have no grounds. Some evictions are thrown out or tenants win counter-claims because of laws against discrimination and landlord retaliation against tenants exercising their legal rights. Judges can even allow tenants to reduce a percentage of rent to compensate for major health and safety hazards. Contact the Tenant Resource Center for more information or a housing attorney for legal advice.

Note: Even if the court determines that you can stay, once the landlord files a complaint, even if the case is dismissed, the complaint is public record. Future landlords might reject you for the dismissed eviction—so it is better to avoid the filing of a complaint if possible, or be prepared to explain this to prospective landlords. If your case does appear in CCAP, make sure to remind the landlord to look at the case details to see the dismissal.

Warning: The landlord could win the eviction and get a judgment for a minimum of double the pro-rated rent for each day after the 5- or 14-day expired. Double damages are rare, but it happens. 2011 Wis Act 143 strengthens the language for landlords to get double damages, "at their discretion." So, if landlord asks for double the daily rent, it is likely the court will award it. Wis. Stat. 704.27 Sometimes the safest option is to negotiate with your landlord; any agreement reached should be in writing with copies for both you and your landlord. Tenants and landlords in Dane Co. can also use the Housing Mediation Service at (608) 257-2799 to negotiate an agreement.

3. You can move out.

This may be an option if you have a place to go. However, moving out does not end your responsibility for the rental agreement. Even if you leave, you will probably still owe the rent, as well as the cost of rerental ads, until the landlord rerents or until the lease ends. It is important to consider vacancy rates in your area, will your apartment rent easily or not, and will you be able to find a place to go? (The landlord has a duty to make all reasonable efforts to rerent the unit, according to Wis. Stat. 704.29.) Also, even if you leave, the landlord may still file in court for the money owed, or file in court to evict you, just to make sure you do not move back in. (Avoid this by giving the landlord notice in writing of your move-out date and keep a copy for your records.) The eviction on your court record, the landlord's bad reference, or the eviction on your credit report can make it difficult to find another apartment.

Language adopted in SB466 or 2011 Wis. Act 143 indicates that any violation of chapter 704 may be an unfair trade practice and therefore the tenant may be entitled to double damages, court costs and reasonable attorney fees.

 “704.95 Practices regulated by the department of agriculture, trade and consumer protection. Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20.” 

This is in addition to the double damages, court costs and reasonable attorney fees that were allowed under DATCP 134. This means that any violation of tenant-landlord law by the landlord could be entitled to double damages, court costs and reasonable attorney fees.

This means any violation in the process up to this point could be entitled to double damages, court costs and reasonable attorney fees. Previously, this was not the case.

Once the landlord files in small claims court, possible violations of tenant rights is a violation of chapter 799 and not subject to the language above.

What if I don't move out?

The only way a landlord may remove you is by a court order. Landlords cannot:change your locks, remove your possessions, push you out, turn off your utilities, throw things out in the street, or do any self-help eviction. These are illegal evictions and you can sue the landlord for double damages, plus court costs and reasonable attorney fees if they take these actions. ATCP 134.09(7)

The landlord needs a court order to remove you from the premises. Your landlord can be prevented from trying to remove you illegally, and can be fined, or even sued for double damages, court costs and reasonable attorney fees. Wis. Stat. 704.95. Document what happens and any costs you have related to the illegal eviction. Call the sheriff's office for immediate help, Consumer Protection at (800) 422-7128, Legal Action, or a private attorney According to Wisconsin consumer protection law, the only legal method to remove a tenant is a judge's order in small claims court ATCP 134.09(7).

The landlord must pay a filing fee and file at the county court. You should receive the summons from a sheriff or a civil process server at least 5 days before the joinder conference (also known as the "initial hearing" or "return date"). Technically, all adult tenants on the lease must be personally served with the notice of the court date. If the server cannot diligently personally serve you, they must serve an adult in your household or a family member over 14 years old and they must inform them of the contents of the notice. If neither of these ways can be accomplished, the summons and complaint may be served publishing it in the newspaper and by mailing it. Wis. Stat. 801.11 You must appear in court on that day or you will be evicted. You do not need to bring witnesses to a joinder conference, but be prepared to discuss your case at this time. The purpose of the conference is to find out if there will be a settlement (like a written payment plan or agreement for the tenant to leave on a certain date), or if there will need to be a trial. If a settlement is not reached, either party can request the trial to be on a different date. Many return dates turn immediately from the initial hearing into a trial unless one of the parties asks for the trial to be on a different date. Wis. Stat. 799 A basic guide to small claims court is here.

It is important that if you make a payment agreement that it is a reasonable payment schedule. If you make an agreement and do not follow through, you may be evicted without returning to court. The landlord only has to fill out an affidavit (a sworn statement) and file that with the court and the next step will be the sheriff showing up at your door.

If the case is not settled at the joinder conference it will proceed to trial. If you tell the court that you do not want to hold the joinder conference and the trial on the same date, state law requires that the trial be rescheduled to a later date. At trial, you should be prepared to present all evidence and witnesses. Check with your clerk of courts for your county to learn the procedure in your county.

What if I am evicted?

If you go to trial and lose, the judge will issue a written order called a writ of restitution. After the landlord gives the sheriff the writ, the sheriff will come within 2 weeks to remove you from the apartment. Usually the sheriff will post a notice before removing you from the premises. Only the sheriff has the authority to post a notice and remove a tenant. (The tenant may contact the sheriff and attempt to arrange a move out date). If the sheriff removes you, your possessions will be moved to storage and you will have to pay reasonable moving and storage costs to retrieve them (but not back rent). Landlords may try to use changes in the law due to 2011 Wis Act 143 to declare the tenant's property abandoned and sell for their own profit or throw out the tenant's property, but the proper method of removal of the property in an eviction is covered by Wis. Stat. 799.45. After an eviction, it may be very difficult to rent again. If you are evicted you may wish to contact the Tenant Resource Center, county human services, and First Call For Help at 211 or (608) 246-4357 (in Dane County) for agencies that provide emergency rent, shelter, and other assistance. Information for Dane County can be found here.

After you are evicted, and the landlord has the opportunity to determine how much money you may owe, a rent and damages hearing will be held. The tenant should make sure that the court has their new address or that they forward their mail so that they receive a notice of this hearing. (Many tenants come back sometimes years later with large judgements on their credit records because they did not know about this court date and were not there to defend themselves.) At this hearing, a court commissioner or judge will determine the amount of judgment against you. It is important to attend so that you can provide information that may minimize the amount of the judgment. For example, landlords cannot charge for time spent rerenting or for a rerental processing fee. Landlords have an unwaivable duty to mitigate or minimize all rerental costs Wis. Stat. 704.29. For more information contact the Tenant Resource Center. For legal advice, contact a housing attorney.

Important Phone Numbers

For the Small Claims Court in your county, click here. If you are going to small claims court, you will want to read this guide. Each county is a little different, but this provides some good basic information.

First Call for Help or 2-1-1 resources are here.

Vocabulary

Cure: To remedy or take care of a lease violation.

Joinder conference: A pre-trial hearing in an eviction case where the landlord and tenant decide whether they will settle or go to trial. Also sometimes called the "return date" or "initial hearing."

Mitigate Damages: The landlord's legal duty to minimize lost rent and other rerental costs after a tenant is evicted, by actively seeking a replacement tenant.

Rent and damages hearing: A hearing held after an eviction to determine how much money the evicted tenant owes the landlord for unpaid rent and other losses the landlord suffered.

Retaliation: When a landlord takes action against a tenant because the tenant was exercising or trying to exercise his or her rights as a tenant under law. This is illegal.

Serve: To formally give a person court papers that inform him or her that he or she is being sued.

Settlement: An agreement between parties to end a lawsuit.

Small claims court: The court where all eviction cases are filed.

Stipulated dismissal: A settlement such as a payment plan or move out date which, if fulfilled by the defendant (tenant), dismisses the case.

Stipulation: A court-ordered agreement that is agreed to by both parties.

Summons and complaint: The formal court papers that order a person to appear in court and inform him or her what the lawsuit is about.

Trial: The formal court proceeding in which the landlord and tenant(s) present evidence and witnesses to a judge or court commissioner, who then makes a decision about who should win the lawsuit.

Writ of restitution: A court order from a judge evicting the tenant and granting possession of the rental property to the landlord.

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