Some leases have rules that conflict with the eviction laws in Wis. Stat. 704. Those rules are not enforceable, unless it is a lease longer than a year. Wis. Stat. 704.17(5)(a) & (b), 2015 Wis. Act 176, Sec. 26 & 27, 2015 Wis. Act 176, Sec. 44, sub. 1, Effective 3/2/16.
No matter what kind of lease you have, some rules are never enforceable and might even let the tenant break the contract without any consequences. More information is below under "Illegal Lease Rules About Eviction."
What is an Eviction?
An eviction is a process landlords may begin when they believe a tenant has 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 fix the problem, and may eventually end up in small claims court. There, a judge will decide whether the tenant has to move out (eviction); they get to stay (dismissal); or the case will be dismissed by mutual agreement (stipulation), usually for a payment plan or a move-out date.
It is important to remember that in Wisconsin a tenant can only be forced to leave an apartment after they have a court date, and only if the judge rules in the landlord's favor. Then the judge's order must be given to the sheriff who would then remove the tenant from the apartment. The landlord cannot change the locks, throw the tenant's stuff out, or take any other action without this court order. The sheriff is the only person who can physically remove the tenant.
However, prior to the landlord filing in court, a tenant may negotiate and come to a mutual understanding with the landlord to avoid a permanent court record being created. Once an eviction is filed in small claims court, it takes between 2-10 years to get it removed from CCAP, a public website where all court records in Wisconsin can be easily accessed by anyone (for more information, click here). CCAP records related to housing might make it harder to get an apartment. Wis. Stat. 758.20(2)(a) & (b), 2017 Wis. Act 317, Sec. 46, Effective 4/18/2018.
How Does the Process Begin?
First, the tenant must break a rule in the existing lease, like not paying rent or having a pet they aren't allowed to have. Tenants may do many undesirable things, but if there is no violation of the lease, the landlord cannot evict them for it.
The legal eviction process begins when the landlord serves the tenant a written notice under Wis. Stat. 704.17 stating how the tenant has violated the lease. This may be a 5-day, 14-day or 30-day notice. This is not a court document and does not go in the court records at this point, only the landlord's files. It is a warning that the landlord may take the tenant to court if they don't move out or do what the notice asks them to do.
What Are My Options in the Beginning?
Many tenants mistakenly believe the landlord can kick them out when an eviction notice expires. This is not true! The only thing the landlord can do is file for an eviction hearing in court, where the tenant has a chance to fight the eviction and/or try to settle with the landlord. The fact that you went to court will now be on both people's public record, and so will the results of the case (eviction, dismissal, or stipulated dismissal). After getting an eviction notice, tenants can move out to avoid going to court, but they often have the chance to fix the problem and stay, without ever going to court.
Types of Notices
- Be in writing
- State the number of days the tenant has to take action (this is complicated - more information on counting days is here.)
- State whether the tenant has the right to cure (fix) the problem
- State whether the tenant can fix the problem and can stay, or if they just have to leave, and
- State whether the rent is due (should include the amount) and/or the lease clause that the landlord believes has been broken.
There are several types of eviction notices. Which one the landlord can serve depends on your lease, the violation, and (sometimes) how many notices the tenant has gotten in the last 12 months.
Need help figuring out what kind of lease you have / what notices apply? Click here!
5-day Pay or Quit Notice with Right to Cure
A 5-day Pay or Quit Notice with Right to Cure is a warning to pay late rent or late fees. Wis. Stat. 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18. The landlord can only give this notice at a point when the rent is late, or late fees are owed. The tenant does not need to leave within 5 days, and this notice can be cured (fixed)! The tenant has the opportunity to resolve the problem and stay in the apartment. By law, the landlord has to allow tenants at least 5 days to pay overdue rent and late fees (not counting the day it is served according to Wis. Stats. 704.17(1)(a) & (2)(a), & 990.001(4). More info on counting days is here).
Low-income tenants: Your county, community action agency, or local religious groups might help you pay the rent if you can't. (Click here for a list of Dane County Eviction Prevention Programs or statewide list of WISCAP agencies.) Tenants applying for EA grants once a case has gone to court can also get more time. For more information, click here.
To avoid going to court, the tenant has to either: pay back rent and/or late fees in full, work out a payment plan with the landlord, or move out. Make sure to put everything in writing and keep copies! Tenants should get the landlord to confirm in writing that they have cured the notice, either with a receipt, a full agreement that they've fixed the problem, or a confirmation that they have left. If a landlord refuses to take a tenant's money, they should make sure to document that as well, with witnesses if possible.
If the tenant disagrees with the amount the landlord says they owe, they can try to contest the notice in a letter to the landlord, but they may end up fighting it in court. They should still pay (or offer a payment plan) any amount they agree that they owe. New laws clarify that if the notice lists the wrong amount of rent or late fees owed, the notice is still valid (the landlord does not have to start over in the process) unless:
- The landlord intentionally wrote the wrong amount (Wis. Stat. 704.17(4m)(a), 2017 Wis. Act 317, Sec. 45), or
- The tenant pays the amount they think is the correct amount (Wis. Stat. 704.17(4m)(b), 2017 Wis. Act 317, Sec. 45, Effective 4/18/18). Anytime the tenant pays what they believe is correct, they should get as much documentation as possible.
If you make a payment plan, it's especially important for the tenant to get a written promise that they won't be evicted. Once the notice expires, the landlord can still evict the tenant, even if they pay in full (Wis. Stat. 799.40(1m), 2011 Wis. Act 143, Sec. 37). This can be for any money owed other than rent (repair costs, utilities, etc.). 2013 Wis. Act 76 also says that once the landlord files in court, even if the tenant pays in full, they can still evict them. Wis. Stat. 799.40(1m), 2013 Wis. Act 76, Sec. 36 Effective for evictions filed after 3/1/14.
Tenants still have rights under Wis. Stat. 704.17, specifically the right to cure a 5- or 30-day notice. Tenants must be allowed to avoid court if they pay before the notice expires. Many landlords will make a payment agreement so it is always a good idea to talk to them. Often, the landlord wants to avoid court as much as the tenant does.
5-day Notice for Non-Rent Violation with Right to Cure
A 5-day Notice for Non-Rent Violation with Right to Cure is a warning that the tenant broke a clause or rule in the lease other than non-payment of rent or late fees. Wis. Stat. 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18. The landlord has to give them at least 5 days (not counting the day it is served) to take "reasonable steps" to fix the problem, or make a "reasonable offer" to pay the landlord in the case of damages to the unit. Wis. Stat. 704.17(2)(b) Within 5 days, tenants should write to the landlord and either deny any violation, or explain what reasonable steps they took to cure (or fix) it (like turning down the stereo or creating less noise). Remember, to evict a tenant, the landlord has to prove to the judge that they violated their lease. It is often hard to prove ongoing non-rent violations.
14-day Notice with No Right to Cure
A 14-day Notice with No Right to Cure orders the tenant to move even if they fix the problem, and it must give them at least 14 days to move. This does not include the day it was served (Wis. Stat. 990.001(4)(a)). The only guaranteed way to avoid court is for the tenant to move out before it expires, or work out another agreement (in writing) with the landlord. Tenants with rental agreements for a set term of one year or less can only be given this notice if they already received a curable 5-day notice for the same violation type (rent or late fees, or anything other than rent/late fees) within the previous 12 months. Landlords can give a 14 day notice to week-to-week and month-to-month tenants at any time they are behind in rent or late fees, without getting a 5-day notice first. Wis. Stats. 704.17(1)(a) & (b) & (2)(b), 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18.
30-day Pay or Quit Notice with Right to Cure
A 30-day Pay or Quit Notice with Right to Cure is only for tenants with a lease for more than a year, and is the only notice they can be served (other than a 5-day with no right to cure under the Safe Housing Act or for a drug nuisance). It gives them at least 30 days to pay late rent or take "reasonable steps" to stop violating the lease. Wis. Stat. 704.17(3)(a)
5-day Notice with No Right to Cure
A 5-day Notice with No Right to Cure is rare. It can only be given in three circumstances:
- A "Drug (or Gang) Nuisance" Property. If a law enforcement agency (police, sheriff, DEA, etc.) gives the landlord a notice that their property is a "drug nuisance" (manufacture, delivery, or sale of drugs is done by the tenant or in the tenant's unit) or a "gang nuisance." Sometimes landlords have a problem in a building and they evict everyone, including people who are not causing problems. 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 file in court and prove the "drug (or gang) nuisance" to a judge. Wis. Stats. 704.17(1)(c), (2)(c), & (3)(b)
- Under the Safe Housing Act. Victims of violence are protected from eviction. There must be certified documentation described in Wis. Stat. 704.16(3)(b) that the tenant poses an imminent threat of serious physical harm to another tenant (or their child/ren) in the same dwelling unit, multi-unit building, apartment complex, manufactured home, or mobile home in the same mobile home community. Wis. Stats. 704.16(3)(a) & (b), 710.15(5t), 2013 Wis. Act 76, Sec. 19 Effective 3/1/14. If there is not certified documentation, a landlord can still serve a 5-day notice with a right to cure for a non-rent violation if the landlord can show that the offending tenant broke a law.
Suspected Criminal Activity or "Drug-Related" Criminal Activity. Landlords can serve a 5-day no-cure eviction notice if anyone in the tenant's household, or any of their guests or invitees, engage in:
- Criminal activity that threatens the health or safety of other tenants, of people residing in the “immediate vicinity” of the premises, or of the landlord or their agent or employee;
- Criminal activity that threatens the right to peaceful enjoyment of other tenants or people residing in the “immediate vicinity” of the premises; or
- “Drug-related criminal activity” on or near the premises. Wis. Stat. 704.17(3m)(b), 2015 Wis. Act 176, Sec. 25. “Drug-related criminal activity” is: The manufacturing or distribution of a controlled substance that is not prescribed by a doctor for medical use by a disabled person. The disabled person can manufacture, use or possess this controlled substance and it can be in the possession of their personal care giver or worker. Wis. Stat. 704.17(3m)(a)1. & 2., 2015 Wis. Act 176, Sec. 25, Effective 3/2/16.
The person who engaged in the alleged criminal activity or “drug-related criminal activity” does not have to be ticketed, arrested, or convicted of this activity in order for the landlord to issue a 5-day no-cure notice for a crime. Wis. Stat. 704.17(3m)(b)2., 2015 Wis. Act 176, Sec. 25.
If the tenant contests the eviction and it goes to court, the landlord does need to prove they committed the alleged crime, by a "preponderance of the credible evidence." This is a very different burden of proof from criminal court, where these charges are normally dealt with. Think of it as being 1% "more" right than the other person in a 50/50 or "He Said/She Said" argument. Wis. Stat. 704.17(3m)(b)1., 2015 Wis. Act 176, Sec. 25. Tenants and landlords may wish to consult our Attorney Referral List as this is a very new area of the law.
In addition to being in writing and served according to Wis. Stat. 704.21, the 5-day no cure notice for criminal or "drug-related" criminal activity must:
- Require the tenant to vacate on or before a date at least 5 days after the giving of the notice,
- State the reason for eviction,
- State that the tenant has the right to contest the allegations in the notice before a court commissioner or judge if an eviction is filed,
- Advise the tenant that they may seek assistance of legal counsel, a volunteer legal clinic, or "a tenant resource center," and include:
Illegal Lease Rules about Eviction
Leases that contain the following provisions are still "void and unenforceable." It is never legal for the landlord to do these things, and if they wrote them into the lease, then the tenant could move out without any consequences (like owing future rent).
- Allows the landlord to evict the tenant because they call law enforcement or emergency/health services for help, like the police or an ambulance. Wis. Stat. 704.44(1)
- Allows the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property even if the tenant could not have reasonably prevented the crime if the tenant, or someone who lawfully resides with the tenant, is the victim, as defined in Wis. Stat. 950.02 (4), of that crime. Wis. Stat. 704.44(9), 2011 Wis. Act 143, Section , Effective 3/31/12, 2014 Wis. Act 76, Sec. 25, Effective 3/1/14 and ATCP 134.08(9), CR 14-038, Sec. 11, Effective 11/1/15.
- 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 of Domestic Abuse Protections required under Wis. Stat. 704.14, Wis. Stat. 704.44(10), 2014 Wis. Act 76, Sec. 26, Effective 3/1/14 and ATCP 134.08(10), CR 14-038, Sec. 11, Effective 11/1/15.
- Allows the landlord to evict the tenant without using the court process. Wis. Stat. 704.44(2m), 2011 Wis. Act 143, Sec. 26, Effective 3/1/14 and ATCP 134.08(2), CR 14-038, Sec. 11, Effective 11/1/15.
Can landlords give either a 5-Day or 14-Day Notice?
If the tenant has a rental agreement for a year or less, the landlord must serve the tenant with a curable 5-day notice for the first lease violation. If the tenant cures (fixes) that problem and then commits another violation in the same category within 12 months, the landlord may serve either a curable 5-day or non-curable 14-day notice for the second violation. The two categories are:
- Non-payment of rent or late fees Wis. Stat. 704.17(2)(a), Wis. Stat. 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18.
- Other substantial violations of the lease Wis. Stat. 704.17(2)(b)
If the tenant does not cure a 5-day notice, the landlord can file in court when the notice expires. (Remember that you do not count the day it is served, and more info on counting days is here). The landlord does not need to serve a subsequent 14-day notice before filing in court. That is only required if the tenant fixes the first problem and then breaks another lease clause in the same category within 12 months. Wis. Stats. 704.17(2), 801.15(1)(b) & 990.001(4).
If the tenant has a month-to-month (or other periodic) rental agreement, the landlord may give a 5- or 14-day notice for the first rent payment violation, or a 14-day notice for a non-rent/late fees violation. Wis. Stat. 704.17(1), Wis. Stat. 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18.
There is no longer a requirement that landlords serve a 14-day notice to periodic tenants for the first non-rent violation. Wis. Stat. 704.17(1)(b)1., 2015 Wis. Act 176, Sec. 23, Effective 3/2/16. For leases for one year or less and year-to-year tenancies the process remains the same, except that for the second non-rent violation of the lease within one year, the landlord may give the 14-day notice at any time. They are no longer required to give the notice “prior to the tenant’s remedying the waste or breach.” Wis. Stat. 704.17(2)(b), 2015 Wis. Act 176, Sec. 24
Delivering the Notice
An eviction notice is not the same as a Summons and Complaint to appear in Small Claims Court, which has to be officially served by someone who is not a part of 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, they 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. Stats. 704.21(1) & (5) If the landlord serves the notice by certified mail, this is proof that the notice has been properly served. If it goes to court, the landlord cannot be required to provide an affidavit of service. Wis. Stat. 799.40(1g), 2017 Wis. Act 317, Sec. 50, Effective 4/18/18.
Responding to the Notice
Tenants should never ignore an eviction notice! (Unless it is an email hoax.) Once they receive a 5-, 14-, or 30-day notice, tenants have three options:
1. Fix the Problem and Remain in the Apartment (If Applicable)
If a tenant received a notice with a right to cure, they have the right to stay if they pay the full amount due (or the amount they believe to be correct) or if they take "reasonable steps" to fix another type of violation within the time limit (the day served does not count, and more info on counting days in a notice is here). Wis. Stats. 990.001(4), 704.17(4m)(b), 2017 Wis. Act 317, Sec. 45, Effective 4/18/18. The landlord cannot kick them out, go to court, or refuse a rent payment from the tenant during that time. Documentation is very important! Tenants should write a dated letter to the landlord telling them the problem is fixed, and keep copies of everything, including payment records.
If you pay by money order, make sure you make it payable to the landlord (like a check) and keep a copy. Otherwise it will be hard to prove you paid it. Get a receipt from the landlord, too (if possible). If you pay by cash, the landlord is required to give you a receipt. ATCP 134.03(2)(b) If you must pay in cash and they won't give you a receipt, bring a witness, document the amount paid with the date and time, and consider filing a complaint with the Department of Agriculture, Trade and Consumer Protection. Get the agreement in writing so they cannot evict you after taking your money.
If tenants get a notice without a right to cure but they still fix the problem, they would have to negotiate with the landlord in order to stay. Tenants should document any attempts to fix it, and get any agreement in writing.
With a 14-day notice, or after the 5-day notice with a right to cure expires, the landlord could refuse to take the rent and instead file for an eviction. As of 3/1/12, once the notice expires the landlord can still evict the tenant even if they pay the rent in full Wis. Stat. 799.40(1m), 2011 Wis. Act 143, Sec. 37). As of 3/1/14 this could be for any money they owe (repair costs, utilities, etc.). 2013 Wis. Act 76 also says that once the landlord files in court, even if the tenant pays in full, they can still evict them. Wis. Stat. 799.40(1m), 2013 Wis. Act 76, Sec. 36, Effective for evictions filed after 3/1/14.
Tenants still have rights under Wis. Stat. 704.17, specifically the right to cure a 5- or 30-day notice. Tenants must be allowed to avoid court if they pay before the notice expires. Many landlords will make a payment agreement, so it is always a good idea to talk to them. Often the landlord wants to avoid court as much as the tenant does.
2. Contest the Violation and Stay
A tenant might decide to stay if they believe the landlord has no legal reason for eviction. Remember, tenants have a right to a trial. The landlord will need to pay a filing fee and wait for a hearing, then prove that the tenant violated the lease and that they served the proper notices. Oftentimes, landlords and tenants reach an agreement out of court. Sometimes, eviction notices or filings have no grounds. Some evictions are dismissed (thrown out) or tenants win counter-claims because of laws against discrimination and landlord retaliation. Judges can even allow tenants to reduce a percentage of rent to compensate for major health and safety violations. Contact the Tenant Resource Center for more information or a housing attorney for legal advice.
Once the landlord files a complaint, even if the case is dismissed and the court determines that the tenant can stay, the complaint is public record on CCAP. Future landlords might reject an applicant even for a dismissed eviction. New laws do allow tenants to get evictions cleared from CCAP after 2-10 years (this used to be almost impossible) but it is better to avoid the filing of a complaint if possible, or be prepared to explain this to prospective landlords. Wis. Stat. 758.20(2)(a), 2017 Wis. Act 317, Sec. 46, Effective 4/18/18. (Click here for for information about CCAP.)
WARNING: One risk of staying is that landlord could win the eviction case and the court could decide the tenant owes at least double the pro-rated rent for each day they stayed after the 5- or 14-day notice expired. 2011 Wis. Act 143 strengthens the language for landlords to get double damages "at their discretion" so if the landlord asks for double the daily rent, it is likely the court will award it. This law first applies to actions for damages (suing for money), including eviction actions, that occur after 3/31/12. Wis. Stat. 704.27, 2011 Wis. Act 143, Sec. 21 Effective 3/31/12. Sometimes the safest option for a tenant is to negotiate with their landlord. Any agreement reached should be in writing with copies for both people. Tenants and landlords in Dane County may also use the Housing Mediation Service to negotiate an agreement.
3. Move Out Before You Go to Court
This is always an option to avoid court, no matter what type of notice you get. It won't always prevent the landlord from filing the eviction anyways, so it is best to be very clear with the landlord that if you move out, they will not file. This may only 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 rent and re-rental costs until a new tenant moves in or until the lease ends, whichever is sooner. It is important to think about vacancy rates in your area, if your apartment will rent easily or not, and if you will be able to find a place to move to. The landlord has a duty to make all reasonable efforts to re-rent 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. For more information about moving out and possibly owing rent, see Mitigation.
What if I Don't Move Out?
Only a judge can decide you must leave, and only a sheriff may physically remove you. 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 without a court order. These are illegal evictions and you can sue the landlord for double damages, plus court costs and reasonable attorney's fees. ATCP 134.09(7)
If you are illegally evicted, document what happens and any costs you have related to the illegal eviction. Call the sheriff's office for immediate help getting back into your apartment, Consumer Protection at (800) 422-7128 to file a complaint, and/or Legal Action of Wisconsin or a private attorney to sue for double damages. ATCP 134.09(7) Sometimes just threatening all of this (in writing!) is enough to get your landlord to work with you. If you just want your property, sometimes law enforcement will help you get it.
First, the landlord files for an eviction hearing in small claims court. They must pay a filing fee ($94.50) which you may have to pay if they win the case, or as part of the settlement. At this point, you will have an eviction case on your record.
Next, you should receive the Summons and Complaint from a sheriff's deputy or a civil process server at least 5 days before the court date. The hearing before the trial is also known as the "joinder conference," "initial hearing," or "return date." Under 2013 Wis. Act 76, your county court clerk could allow this service to be done by mail. If so, a copy must be sent to each defendant by certified mail. Wis. Stats. 799.12(2) & (3), 2013 Wis. Act 76, Secs. 31 & 32 Effective for evictions filed after 3/1/14. All adult tenants on the lease must be personally served with the notice of the court date. If the server cannot personally serve you, due diligence requires that 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 work, the Summons and Complaint may be published in the newspaper and mailed. Wis. Stat. 801.11 The summons and complaint no longer needs to be notarized Wis. Stat. 799.06(3)(b), 2017 Wis. Act 317, Sec. 48, Effective 4/18/18.
You must appear in court on that day or you will be evicted. If the landlord promised to dismiss the case, the tenant should call the court clerk and make sure that the case file has noted this and that there will not be a hearing. If not, the tenant should go to court and make absolutely sure the landlord follows through on their promise!
Click here for Small Claims Court Tips.
What Happens at Court, and How Long Does it Take?
2013 Wis. Act 76 requires the court to schedule the initial hearing ("joinder conference") within 25 days of when the landlord files the Summons and Complaint. A complete trial has to be finished within 30 days of the initial hearing. Wis. Stats. 799.05(3)(b) & 799.206(3), 2013 Wis. Act 76, Secs. 29 & 34, Effective for evictions filed after 3/1/14.
A landlord's agent or employee can represent them in small claims court and that person doesn't need to be a lawyer. Wis. Stats. 799.06(2), 799.40(1), 2013 Wis. Act 76, Secs. 30 & 35, Effective for evictions filed after 3/1/14. Neither party is required to have a lawyer, even if it goes to trial, but you might want one. See our attorney referral list which includes free and low-cost lawyers. Lawyers who help draft pleadings, motions , or documents for self-represented persons must now include their name and state bar number on any such documents, and note that it was prepared with the help of a lawyer. Attorneys are not required to sign the document. Wis. Stat. 802.05(2m), 2017 Wis. Act 317, Sec. 53, Effective 4/18/18.
The purpose of the first hearing is to find out if there will be a settlement (like a written payment plan or move-out date) or if there will be a trial. If a tenant wants to fight the eviction, they should come with a list of laws that they think apply, since the court will only schedule a full trial with a judge if the tenant brings up "valid legal grounds." They do not need to prove their case at the initial hearing, but they might want to bring any evidence they have. Wis. Stat. 799.206(3), 2017 Wis. Act 317, Sec. 49, Effective 4/18/18.
If the landlord is willing to settle, both people can sign an agreement called a "stipulated dismissal." As long as the tenant follows it, they will not be evicted. It is very important that tenants only sign an agreement if they can follow it! If the tenant misses a payment or doesn't move out on time, they can be evicted without going back to court. Tenants should make sure what they agree to is reasonable! If they break the agreement, the landlord only has to file an affidavit (sworn statement) and the court will order an eviction without another hearing. The next step will be the sheriff showing up to evict the tenant and/or the landlord removing your property Wis. Stat. 799.45, 2013 Wis. Act 76, Secs. 40-57, Effective 3/1/14. See Tenant Property/Property Left Behind, and Small Claims Court Tips.
If you can't reach an agreement, or the court is about to rule in the other person's favor, either person can request a trial with a judge on a different date by bringing up "valid legal grounds" for contesting the decision, and get a trial with a judge on a different date. Wis. Stat. 799.206(3), 2017 Wis. Act 317, Sec. 49, Effective 4/18/18. If you are given a trial, you can also request that it be a jury trial.
"Estoppel" is no longer a valid defense, on its own. If a tenant and landlord started regularly doing something contrary to their lease agreement, the landlord can still evict the tenant for not following the actual written lease. For example, if a landlord has been accepting rent on the 3rd of the month for 5 years even though the lease says it’s due on the 1st, the landlord can suddenly give the tenant an eviction notice for not paying on the 1st of the month. The fact that the tenant always paid on the 3rd is no longer a defense to an eviction. Wis. Stat. 799.40(1s), 2017 Wis. Act 317, Sec. 51, Effective 4/18/18.
Getting More Time for Court While Applying for Emergency Assistance
Low-income tenants can apply for Emergency Assistance (EA) grants to help pay back rent and avoid eviction. If the case has already gone to court, but no writ of restitution (order for eviction) has gone through, the tenant can be given a "stay" of up to 10 days where the case is put on hold. Wis. Stat. 799.40(4)(a), 2017 Wis. Act 317, Sec. 52, Effective 4/18/18. (Previous to this new clarification, tenants could apply after the writ had been issued and there was no limit on the number of days for the EA grant application process.)
Other Help in the Eviction Process
Check with your clerk of courts for your county to learn the specific procedure in your county. Click here for a basic Guide to Small Claims Court or here for more Small Claims Court Tips on our blog. Click here for an Attorney Referral List.
What if I Am Evicted?
If you lose the case, the judge will issue a written order called a "writ of restitution." This returns possession of the rental property to the landlord. Under 2013 Wis. Act 76, the court must issue the writ "immediately." Wis. Stats. 799.44(1) & (2), 2013 Wis. Act 76, Secs. 38 & 39, Effective for evictions filed after 3/1/14.
What Happens to the Tenant's Property?
For evictions filed on or after 3/1/14, if the landlord wrote in the lease that they won't move and store property left behind, they can do anything they want with tenant property during eviction, without involving the sheriff (except to notify the sheriff that they're handling it themselves). The sheriff must still be there to remove the tenant from the property. If the lease doesn't say anything about property left behind, the landlord has to follow the rules listed below for evictions filed before 3/1/14. If the lease say something else about dealing with property, the landlord must follow the rules in the lease. It is illegal for a landlord to change this rule in the middle of a lease without the tenant's permission. Wis. Stat. 799.45(3m), 2013 Wis. Act 76, Secs. 40-57, Effective 3/1/14.
For evictions filed before 3/1/14, or if the landlord does not put anything in the lease about not moving and storing property left behind: The landlord must arrange with the sheriff to move and store any property left behind. Only the sheriff is allowed to decide if something was trash to be thrown away. The sheriff must tell the tenant within 10 days where their property is being stored and how much it costs to get it back. They are required to give 30 days' notice before they throw it out. Only the sheriff has the authority to remove the tenant or their property. In Milwaukee County, the landlord must hire bonded movers. In other counties, landlords can choose to purchase their own bond of insurance. Wis. Stats. 799.45(2) & (3)
Important rules have changed about removing people who are not tenants for "criminal trespassing" along with their property. This is separate from the eviction process, but may effect you. For more information, see our updated information on Tenant Property and Property Left Behind.
Finding Shelter or Alternative Housing
After an eviction, it may be very difficult to find housing. If you are evicted you may wish to contact:
- Tenant Resource Center's Housing Help Desk (Dane County)
- Your county's Department of Human Services
- First Call For Help at 211 or (608) 246-4350 (in Dane County)
- Community Action Program
- Dane County Homeless Hotline (at risk or currently homeless) Monday-Friday from 8am-4:30pm (855) 510-2323
These agencies may provide emergency rent, shelter, and other assistance.
Owing Money For Future Rent & Other Damages
After a tenant is evicted, the landlord can schedule a "rent and damages hearing" where the court will decide how much money the tenant owes. This could be several months away and the tenant will be notified by mail, so they should make sure the court has a new address, or that they forward their mail. Many tenants come to the Tenant Resource Center owing large amounts of money on their credit reports (often for money they don't feel they owed!) because they did not know about the rent and damages hearing, and were not there to defend themselves. At the rent and damages hearing, a court commissioner or judge will determine the amount of money the tenant owes. It is important for tenants to attend so that they can argue against money they don't think is fair, and lower the amount they owe, or even counter-sue the landlord for money they feel the landlord owes them. The tenant may owe rent until a new tenant moves in, but landlords cannot charge for time spent re-renting or for a re-rental processing fee. See mitigation for details. Wis. Stat. 704.29 For more information, contact the Tenant Resource Center. For legal advice, contact a housing attorney.
Re-Connecting Utilities After Eviction
A public utility company that disconnected service for non-payment (by the tenant) can no longer require the owner to provide proof of eviction or proof the tenant has moved out before they re-connect the service, if the service is solely in the owner's name. Wis. Stat. 196.643(4), 2017 Wis. Act 317, Sec. 35, Effective 4/18/18.
What if the Landlord Breaks Eviction Law?
If there was an error in procedure and the tenant didn't know about their court date, or did not get proper notice, they may be able to re-open the court case. If the sheriff shows up at your door with a notice for them to leave and that is the first notice you get about a court date, the tenant should go immediately to the court house and ask to petition to reopen for not being properly served.
"Self-help" evictions are illegal under ATCP 134.09(7). This means the landlord trying to force a tenant out by doing things like changing the locks themselves, throwing the tenant's stuff out, shutting off power, etc. without a court order. If this happens, tenants can sue in small claims court for double their costs (hotel rooms, etc.), plus court costs and reasonable attorneys under ATCP 134. Sometimes the threat of this (in writing!) is enough to get the landlord to stop committing an illegal eviction.
For violations of procedure such as giving incorrect eviction notices, double damages are no longer available. Double damages for violations of Wis. Stat. 704 were only allowed between 3/31/12 and 2/28/14. Wis. Stat. 704.95, Wis. Act 76, Sec. 27.
Important Phone Numbers
(608) 246-4350 in Dane County
(Dane County only)
Dane County Small Claims Court (Forms)
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 and see these tips. Each county is a little different, but this provides some good basic information.
First Call for Help or 2-1-1 resources are available here.
- Cure: To fix 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 called the "return date" or "initial hearing."
- Mitigate damages: The landlord's legal duty to minimize lost rent and other re-rental costs by actively seeking a replacement tenant after a tenant is evicted.
- 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 their rights as a tenant under the law. This is illegal.
- Serve: To formally give a person court papers informing them they are being sued. This must be done by someone over the age of 18 who is not a party to the lawsuit.
- 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. Both parties must agree to the terms of this settlement.
- 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 tell them 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.