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Security Deposits - Madison
The City of Madison had different rules for security deposits until December 21, 2011 and these rules may still apply to leases that went into effect prior to that date. See notes below.
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.
Also available as a PDF or en español for easy printing.
NOTE: While some provisions regarding security deposits from ATCP 134 were written into 704, potentially taking away double damages, court costs and reasonable attorney fees, the legislature also added the following language to the statutes:
“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 means that any violation of tenant-landlord law by the landlord could be entitled to double damages, court costs and reasonable attorney fees. So, while the law was changed, we believe the tenant should see no real impact.
What is a security deposit?
State law defines a security deposit as "total of all payments and deposits" given as security and "includes all rent payments in excess of 1 month's prepaid rent". This includes pet deposits, key deposits and furniture deposits as well as the last month's rent if that is what the landlord requires. ATCP 134.02(11) Deposits are kept as a guarantee the tenant will pay the rent and not damage the apartment.
At the time the landlord accepts the security deposit, s/he must inform the tenant of his/her right to request a list of physical damages charged to the deposit of the previous tenant ATCP 134.06(1)(a)2. , and to request the opportunity to view the photographic evidence of those damages for up to 30 days after the tenant moves in (MGO 32.07(5)(b) & 32.07(5)(c)).
How much can my landlord charge?
As much as they want to. There are no longer any limits due to the state legislation.
Madison law prohibits landlords from charging more than one month's rent for a security deposit (MGO 32.07(3)).
How do I protect my security deposit?
Fill out a check-in form
Your landlord is required to let you know that you have at least seven days to let them know of any problems with the apartment. ATCP134.06(1)(a)1. Madison law states that landlords who fail to give tenants a check-in form forfeit rights to deduct from the deposit for cleaning or damages (MGO 32.07(6)(7)).
The new law also requires the landlord to provide the tenant a "standardized information check-in sheet that contains an itemized description of the condition of the premises at the time of check-in." Wis. Stat. 704.08. It appears that the landlord should fill in the check-in sheet. If the landlord fails to do so, it will be very difficult for them to prove the condition of the apartment if they try to make deductions from your security deposit.
Additionally, the new law says: "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." Wis. Stat. 704.08. It appears there should also be an area for the tenant to fill in the check in sheet with their description of the condition of the premises. It is unclear if there is a deadline for the tenant to fill in the check in sheet, but the landlord should give you at least 7 days. We don't believe failure to meet their deadline in any way negates the information on the form.
If you do not receive a check-in form, make your own or get one from the Tenant Resource Center (also available on our website). Make a copy and send it to your landlord soon after of moving in.
When filling out the check-in form, be thorough. The landlord cannot charge you for any existing damages that you include on the check-in form.
Note problems with your unit such as:
• stained carpets or damaged floors
• cracked windows
• torn or missing screens
• nail holes, cracked paint, peeling wallpaper
• dirty conditions, fixtures and appliances
• stained walls and ceilings
• plumbing, sinks, bathtubs and tiles that are worn, dirty, mildewed or not working properly
• missing light bulbs or glass light covers
• electrical outlets or other items that do not work (light switches, stove burners, oven coils, etc.)
• stained, scratched, or otherwise damaged countertops.
Get a witness
If you have a friend who isn't living with you, have them witness the conditions at move-in. Have them initial your check-in form or write a separate statement about what they saw.
Take photos or video
Carefully photograph or video the apartment when you move in, being especially careful to document all damage. When taking photos or video, consider putting a note card with the date and apartment number of the unit in the photos. This will help know when the photos were taken and give a reference for how big a particular stain or damage might be. Send (or e-mail) photos or video to your landlord soon after moving in and keep copies (digital, photocopy or save tapes) for yourself.
Look at Previous Tenant's Charges to Security Deposit
In addition to doing a check-in form and telling the tenants they have the right to inspect the apartment, the landlord must also inform the tenant that they have the right to request a list of any charges to the previous tenant's security deposit. The landlord can require the request to be in writing. If the tenant requests it, the laundered must, within 30 days, or 7 days after they notify the previous tenant of their deductions, whichever is later, send a list of deductions from the previous tenant's deposit. ATCP 143.06(1) If you get such a list and find that there are additional damages that were not fixed prior to your moving in that you did not put on your check-in sheet, this will be important evidence of the condition of the unit when you moved in.
Read your Non-Standard Rental Provisions
This is the part of the lease where the landlord must note all things that they will take from the security deposit beyond what the law states they may deduct. Make sure your landlord is not charging for liquidated damages (random fees) where actual fees may be calculated. Example: $500 for having a beer keg in your apartment. Landlords may be emboldened with the passage of 2011 Wis. Act 143, but nothing has changed allowing them to charge for random fines. ATCP 134.06(3)(b) & Wis. Stat. 704.28(2)
What should I do before leaving an apartment?
Try to schedule a check-out appointment with your landlord. If your landlord agrees to do this, make sure you leave with a signed copy of the check-out form. If the landlord notes things are dirty or damaged, offer to clean or fix them. If your landlord refuses to go through the apartment with you, complete your own check-out form and take pictures documenting the condition of the apartment. Remember to put something in the photo indicating the date and to use as a reference point for the size of damages. Consider having the same witness who was present for check-in help with the check-out.
If your landlord presents you with a check-out form that indicates damages that you or your guests did not cause, do not sign it. Instead, complete your own check-out form and keep a copy. You should also take pictures or video to prove the condition of the apartment. Leave your forwarding address on the check-out form or mail it to the landlord. Keep copies of everything!
Landlords who fail to provide a check-out form similar to the check-in form forfeit their right to deduct for damages or cleaning (MGO 32.07(6)).
When must my landlord return my deposit?
The landlord has 21 days after your lease ends to send you either the full security deposit or an itemized list of deductions (ATCP 134.06(2)(a), Wis. Stats 704.28(4) MGO 32.07(7)).
What if I move out early?
If you move out before the lease is over, return the keys to the landlord and write a letter stating which day you are moving. Give one copy to the landlord and keep one for yourself. The landlord will have to return the security deposit within 21 days after you "surrender the premises." You must notify the landlord in writing if you move out early, otherwise you will have to wait until the lease is over to get your security deposit back (ATCP 134.06(2)(b), MGO 32.07(7)). the rental agreement terminates or the date a new tenancy begins, whichever is first. Wis. Stat. 704.28(4)(b).
What if I don't receive my deposit or list of deductions?
If the landlord does not return the full deposit or a detailed list of deductions within 21 days after you move out, you can sue the landlord for triple double the amount of the deposit plus court costs and reasonable attorney fees Wis. Stat. 100.20(5)) & 704.95.
What might my landlord deduct for?
Standard legal deductions
• unpaid rent (some exceptions in Wis. Stat. 704.29)
• unpaid utilities owed under the rental agreement or for which the landlord becomes responsible
• damages caused by the tenants or their guests that go beyond "normal wear and tear"
• unpaid mobile home parking fees.
ATCP 134.06(3)(a) & Wis. Stat 704.28(1)
Nonstandard legal deductions
Your landlord can deduct for reasons other than those listed above if you initialed provisions on separate page titled "nonstandard rental provisions" when you signed your lease. This may include late fees, etc. (MGO 32.07(14)(f)). ATCP 134.06(3)(b) & Wis. Stat. 704.28(2)
Illegal deductions
Landlords may never deduct for "normal wear and tear" or for other losses that the tenant is not responsible for under the law even if the tenant signed a nonstandard rental provision authorizing these deductions ATCP 134.06(3)(c),MGO 32.07(14) Wis. Stats. 704.28(3)
Carpet Cleaning
It is illegal to deduct for routine carpet cleaning from the security deposit—even if you signed a lease that states that you must pay for carpet cleaning. Such lease provisions are illegal. The only exception is if you damaged the carpet beyond "normal wear and tear." If your landlord deducted money from your security deposit for routine carpet cleaning, inform your landlord in writing that it is illegal. ATCP 134.06(3)(c), Stats. 704.28(3) If your deposit is not returned, file a complaint with Consumer Protection by calling (608) 224-4953, (800) 422-7128 or online. You may sue the landlord in small claims court and also file a complaint with the City Attorney at (608) 266-4511. Be aware that the landlord may still pursue this in small claims court.
Photographic Evidence
Madison law specifically states that charges shall not be deducted from the security deposit for tenant damage, waste or neglect unless the landlord has documented such damage with photographic evidence to the extent the conditions can be photographed. The photographic evidence must be retained for at least 90 days from the date of return of the security deposit and/or the written itemized statement of deductions (MGO 32.07(14)(a)).
The written itemized statement of deductions must contain a notice that the tenant will be provided copies of photos documenting the damage waste or neglect, if the tenant makes a written request within 30 days of receipt of the statement (MGO 32.07(7)(b).
The failure of the landlord to take, provide or retain these photographs does preclude the landlord from making deductions from the security deposit, but does not preclude the landlord from taking separate action to recover damages in small claims court (MGO 32.07(9) & 32.07 (14)(a)).
Does my landlord have to pay interest?
If your security deposit was more than half of a month's rent, your landlord must pay simple interest from the time you pay the deposit until the time you move out (MGO 32.07(3)). The interest rate changes every year as follows, and the amount of interest is changed on the anniversary of the date it was initially received:
-
2004 - 0.81%
-
2005 - 0.72%
2006 - 0.83%2007 - 0.94%2008 - 0.94%2009 - 0.75%2010 - 0.46% 2011 - 0.37%
For example: if a tenant paid $1000 towards a security deposit on January 10, 2005, moved into the unit on August 15, 2005, and moved out August 14, 2007, that tenant would receive:
0.72% interest from January 10, 2005 - January 10, 2006 which equals $7.20, plus0.83% interest from January 10, 2006 - January 10, 2007 which equals $8.30, plus0.94% interest from January 10, 2007 - August, 14, 2007 which equals $5.55 (calculated by 0.94% x $1000 x the part of the year that the tenant resided there which is 59%)A total of $1021.05, assuming no deductions were taken
The rates can also be found online at http:// woodwork/if/banks. Look for the Notice of Interest Rate on Required Residential Mortgage Loan Escrow Accounts. You can also call the City of Madison Building Inspection Unit at (608) 266-4551 to find out the current rate.
If your security deposit was half of one month's rent or less, your landlord does not need to pay interest.
Can I cash a partial check?
A tenant does not have to wait to cash a check until the security deposit dispute is settled. Cashing a partial refund check does not waive the tenant's rights to sue for the rest of the deposit ATCP 134.06(2)(e) MGO 32.07(7)(d)).
Who should my deposit be returned to?
The landlord is supposed to put all tenants' names on the check unless tenants indicate otherwise in writing. ATCP 134.06(2(d) (MGO 32.07(7)(c)). The check-out form must provide an obvious place for the tenant's forwarding address (MGO 32.07(5)(d)).
What if my landlord deducted money from my deposit unfairly?
If the landlord violates one of the rules mentioned on this website, you may take the following actions:
Write a letter to your landlord
This letter should include the following:
• a description of the violation of the 21-day limit and/or each deduction that you disagree with
• specific mention of the law or laws that have been violated (usually ATCP 134.06 or now Wis. Stat. 704.28 or MGO 32.07)
• an explanation that you could take further action, including small claims court for triple double the amount wrongfully withheld, court costs and attorney fees
• a reasonable deadline for the landlord to return the total deposit (for example, an exact date 5 - 10 days or 1-2 weeks away).
Be sure to keep a copy of the letter for your records.
File a complaint with Consumer Protection
You can easily file a complaint with the Department of Agriculture, Trade and Consumer Protection. The bureau keeps complaint records and will contact the landlord about the violation. To get a complaint form, call (608) 224-4953 or (800) 422-7128 or fill one out online.
Sue in small claims court
After the deadline in your letter expires and the landlord doesn't respond, you may sue your landlord in small claims court for triple double what was wrongfully withheld plus court costs and reasonable attorney fees (MGO 32.07(10)). Wis. Stat. 100.20(5)) & 704.95 Dane County Small Claims Court is located at 215 S. Hamilton St.
You must go to your county small claims court, fill out a simple "summons and complaint" form and pay a $94.50 filing fee. The filing fee can be waived if you can prove you receive Food Stamps or BadgerCare or are otherwise indigent. The landlord may not contest your case, may settle, or may countersue you.
Vocabulary
Earnest money: the total of any payments or deposits, however described, given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for having a rental agreement considered by a landlord. "Earnest money deposit" does not include a fee which a landlord charges for a credit check.
Normal Wear and Tear: This is a term that Wisconsin laws do not define. It refers to the deterioration of the premises that occurs during normal conditions where the tenant cleans regularly and cares for the premises reasonably.
Security deposit: The money a tenant pays to a landlord when entering into a rental agreement to guarantee the tenant's obligations. It is any amount above one month's prepaid rent (including all pet deposits, key deposits and furniture deposits).
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Security Deposits - Wisconsin
Also available as a PDF or en español for easy printing.
If you live in the City of Madison, you had additional rights up for leases and security deposits before December 21, 2011. Click here for more information.
Purple bold or strikethrough language indicates changes under SB107 (Wis. Act 108). These apply to leases written after 12/21/22 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 3/30/12 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.
NOTE: While some provisions regarding security deposits from ATCP 134 were written into 704, potentially taking away double damages, court costs and reasonable attorney fees, the legislature also added the following language to the statutes:
“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 means that any violation of tenant-landlord law by the landlord could be entitled to double damages, court costs and reasonable attorney fees. So, while the law was changed, we believe the tenant should see no real impact.
What is a security deposit?
State law defines a security deposit as "total of all payments and deposits" given as security and "includes all rent payments in excess of 1 month's prepaid rent". This includes pet deposits, key deposits and furniture deposits as well as the last month's rent if that is what the landlord requires. ATCP 134.02(11) Deposits are kept as a guarantee the tenant will pay the rent and not damage the apartment.
At the time the landlord accepts the security deposit, s/he must inform the tenant of his/her right to request a list of physical damages charged to the deposit of the previous tenant ATCP 134.06(1)(a)2. , and to request the opportunity to view the photographic evidence of those damages for up to 30 days after the tenant moves in (MGO 32.07(5)(b) & 32.07(5)(c)).
How much can my landlord charge?
State laws place no limit on the amount landlords can charge for security deposits. There are limits in the City of Madison and in Fitchburg.
Does my landlord have to pay interest?
No, the State took away local municipalities ability to require interest and does not require it itself.
How do I protect my security deposit?
Fill out a check-in form.
Your landlord is required to let you know that you have at least seven days to let them know of any problems with the apartment. ATCP134.06(1)(a)1
The new law also requires the landlord to provide the tenant a "standardized information check-in sheet that contains an itemized description of the condition of the premises at the time of check-in." Wis. Stat. 704.08. It appears that the landlord should fill in the check-in sheet. If the landlord fails to do so, it will be very difficult for them to prove the condition of the apartment if they try to make deductions from your security deposit.
Additionally, the new law says: "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." Wis. Stat. 704.08. It appears there should also be an area for the tenant to fill in the check in sheet with their description of the condition of the premises. It is unclear if there is a deadline for the tenant to fill in the check in sheet, but the landlord should give you at least 7 days. We don't believe failure to meet their deadline in any way negates the information on the form.
If you do not receive a check-in form, make your own or get one from the Tenant Resource Center (also available on our website). Make a copy of the completed check-in form for yourself and give the original to your landlord.
When filling out the check-in form, be thorough. The landlord cannot charge you for any existing damages that you include on the check-in form.
Note problems such as the following:
• stained carpets or damaged floors
• cracked windows
• torn or missing screens, damaged blinds
• nail holes, cracked paint, peeling wallpaper
• dirty conditions, fixtures and appliances
• stained walls and ceilings
• plumbing, sinks, bathtubs and tiles that are worn, dirty, mildewed or not working properly
• missing light bulbs or glass light covers
• electrical outlets or other items that do not work (light switches, stove burners, oven coils, etc.)
• countertops that are stained, scratched, or damaged.
Get a witness
If you have a friend who isn't living with you, have them witness the conditions at move-in. Have them initial your check-in form or write a statement of what they saw.
Take photos or video
Carefully photograph or video the apartment when you move in, being especially careful to document all damage. When taking photos or video, consider putting a note card with the date and apartment number of the unit in the photos. This will help know when the photos were taken and give a reference for how big a particular stain or damage might be. Send (or e-mail) photos or video to your landlord soon after moving in and keep copies (digital, photocopy or save tapes) for yourself.
Look at Previous Tenant's Charges to Security Deposit
In addition to doing a check-in form and telling the tenants they have the right to inspect the apartment, the landlord must also inform the tenant that they have the right to request a list of any charges to the previous tenant's security deposit. The landlord can require the request to be in writing. If the tenant requests it, the laundered must, within 30 days, or 7 days after they notify the previous tenant of their deductions, whichever is later, send a list of deductions from the previous tenant's deposit. ATCP 143.06(1) If you get such a list and find that there are additional damages that were not fixed prior to your moving in that you did not put on your check-in sheet, this will be important evidence of the condition of the unit when you moved in.
Read your Non-Standard Rental Provisions
This is the part of the lease where the landlord must note all things that they will take from the security deposit beyond what the law states they may remove. Make sure the landlord is not charging liquidated damages (random fees) where actual fees may be calculated. Example: Charging a $500 fine for having a beer keg in your apartment. Landlords may be emboldened with the passage of 2011 Wis. Act 143, but nothing has changed allowing them to charge for random fines. ATCP 134.06(3)(b) & Wis. Stat. 704.28(2)
What should I do before leaving an apartment?
Try to schedule a check-out appointment with your landlord. If your landlord agrees to do this, make sure you leave with a signed copy of the check-out form. If the landlord notes things are dirty or damaged, offer to clean or fix them.
If your landlord refuses to go through the apartment with you, complete your own check-out form and take pictures documenting the condition of the apartment. Consider having the same witness who was present for check-in help with the check-out.
If your landlord presents you with a check-out form that indicates damages that you or your guests did not cause, do not sign it. Instead, complete your own check-out form and keep a copy. You should also take pictures to prove the condition of the apartment. Leave your forwarding address on the check-out form or mail it to the landlord. Keep copies of everything!
When must my landlord return my deposit?
The landlord has 21 days after the end of your lease to send you either the full security deposit or an itemized list of deductions ATCP 134.06(2)(a) or Wis. Stat. 704.28(4) If the landlord doesn't return a deposit within 21 days, then the law allows you to take further action, but doesn't necessarily say that the landlord waives the right to withhold from the security deposit after the 21 days.
What if I move out early?
If you move out before the lease is over, return the keys to the landlord and write a letter stating which day you are moving. The 21 day countdown starts on the day that you "surrender the premises." You must notify the landlord in writing if you move out early, otherwise you will have to wait until the lease is over to get your security deposit back (ATCP 134.06(2)(b)). the rental agreement terminates or the date a new tenancy begin, whichever is first. Wis. Stat. 704.28(4)(b).
What if I don't receive my deposit or list of deductions?
If the landlord does not return the full deposit or a detailed list of deductions within 21 days after you move out, you can sue the landlord for double the amount of the deposit plus court costs and reasonable attorney fees Wis. Stat. 100.20(5) & Wis. Stat. 704.95.
What might my landlord deduct for?
Standard legal deductions
• unpaid rent (some exceptions in Wis. Stat. 704.29)
• unpaid utilities owed under the rental agreement or for which the landlord becomes responsible
• damages caused by the tenants or their guests that go beyond "normal wear and tear"
• unpaid mobile home parking fees.
ATCP 134.06(3)(a) & Wis. Stat 704.28(1)
Nonstandard legal deductions
Your landlord can deduct for reasons other than those listed above if you initialed provisions on separate page titled "NONSTANDARD RENTAL PROVISIONS" when you signed your lease. This may include late fees, etc. ATCP 134.06(3)(b) and Wis. Stats. 704.28(2)
Illegal deductions
Landlords may never deduct for "normal wear and tear" or for other losses that the tenant is not responsible for under the law even if the tenant signed a nonstandard rental agreement authorizing these deductions ATCP 134.06(3)(c) and Wis. Stats. 704.28(3)
Carpet Cleaning
It is illegal to deduct for routine carpet cleaning from the security deposit—even if you signed a lease that states that you must pay for carpet cleaning. The exception is if you damaged the damaged beyond "normal wear and tear." If your landlord deducted money from your security deposit for routine carpet cleaning, inform your landlord in writing that it is illegal. ATCP 134.06(3)(c) and Wis. Stats. 704.28(3) If your deposit is not returned, file a complaint with Consumer Protection by calling (608) 224-4953, (800) 422-7128 or online. Be aware that the landlord may still pursue this in small claims court.
Can I cash a partial check?
A tenant does not have to wait to cash a check until the security deposit dispute is settled. Cashing a partial refund check does not waive the tenant's rights to sue for the rest of the deposit ATCP 134.06(2)(e)
Who should my deposit be returned to?
If the landlord returns the security deposit in the form of a check, all tenants' names should be on it unless tenants indicate otherwise in writing ATCP 134.06(2)(d)
What if my landlord deducted money from my deposit unfairly?
If the landlord violates one of the rules mentioned in this brochure, you may take the following actions:
Write a letter to your landlord
This letter should include the following:
• a description of the violation
• specific mention of the law(s) that have been violated (usually Wis. Administrative Code ATCP 134.06 or now Wis. Stat. 704.28)
• an explanation that you could take further action, including small claims court for double the amount wrongfully withheld, court costs and reasonable attorney fees
• a reasonable deadline for the landlord to return the total deposit (for example, an exact date 5 days or 1 week away)
Be sure to date the letter and keep a copy for your records.
File a complaint with Consumer Protection
You can easily file a complaint with the Department of Agriculture, Trade and Consumer Protection. The bureau keeps complaint records and will contact the landlord about the violation. For a complaint form, call (608) 224-4953 or (800) 422-7128 or fill one out online.
Sue in small claims court
After the deadline in your letter expires and the landlord doesn't respond, you will want to consider filing against your landlord in small claims court for double what was wrongfully withheld plus court costs and reasonable attorney fees.
You must go to your county small claims court, fill out a simple "summons and complaint" form and pay the $94.50 filing fee. This fee may be waived if you receive Food Stamps or BadgerCare. To contact your county's courthouse, go to the Wisconsin Circuit Court System. The landlord may not contest your case, may settle or may counter-sue you.
Vocabulary
Normal Wear and Tear: This is a term that Wisconsin laws do not define. It refers to the deterioration of the premises that occurs during normal conditions where the tenant cleans regularly and cares for the premises reasonably.
Security deposit: The money a tenant pays to a landlord when entering into a rental agreement to guarantee the tenant's obligations. It is any amount above one month's prepaid rent (including all pet deposits, key deposits and furniture deposits).
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