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Eviction

We are still making major changes to the website. Please check back to be sure you have the best information available. Unless something else is written in your lease, one of three new laws might change your rights.

Purple text applies to leases and events as of 12/21/2011 (2011 Wis. Act 108)

Orange text applies to leases and events as of 03/31/2012 (2011 Wis. Act 143)

Green text applies to leases and events as of 03/01/2014 (2013 Wis. Act 76)

More information on the law changes is available here. Have your lease available when calling the Tenant Resource Center so we can help you know what your rights and remedies are, including whether you can double your costs when you sue a landlord. 

Also available as a PDF (new one updated soon!) for easy printing.

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) or if 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, the judge rules in the landlord's favor and the judge's order is given to the sheriff who would then remove the tenant from the apartment. The landlord cannot change the locks, throw their stuff out or tale any other action without this court order. However, prior the landlord filing, a tenant may come to a mutual understanding with the landlord to avoid a permanent court record being created. Once the eviction is filed in small claims court, it is nearly impossible to get it removed from CCAP, which is a public website where all court records in Wisconsin can be easily accessed by anyone with internet access.

How does the process begin?

First, the tenant must break a rule in the 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 not a violation of the lease, the landlord cannot evict them for it.

The legal eviction process begins when the landlord serves or gives the tenant a written notice under Wis. Stat. 704.17 stating how the tenant has violated the lease. 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, which will become part of the public record. 

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 you will have 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 your public record, 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

NOTE: A notice that your lease will not be renewed or a 28-day notice to end a month-to-month tenancy is a "non-renewal notice," NOT an eviction notice. However, if you stay past that date, the landlord can take you to court for eviction for "holding over" (staying past the lease expiration date).

According to Wis. Stats. 704.17 & 704.21, all eviction notices must:

  • Be in writing. 
  • State the number of days the person has to take action
  • 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
  • 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 you have gotten in the last 12 months:

  1. 5-day Pay or Quit Notice with Right to Cure is a warning to pay late rent. The landlord can only give this notice at a point when the rent is late. You do not need to leave within 5 days, 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 (not counting the day it is served, Saturday, or Sunday, according to Wis. Stats. 704.17(1)(a) & (2)(a), 801.15(1)(b) & 990.001(4). Your county, community action agency, or local religious groups might assist in paying the rent if you cannot pay it. (Dane County Eviction Prevention Programs)

    To avoid going to court, the tenant has to pay past due rent in full or work out a payment plan with the landlord. Make sure to put everything in writing and keep copies! Get the landlord to confirm in writing whenever possible, either with a receipt, or a full agreement that you've cured (fixed) the problem. If a landlord refuses to take your money, make sure to document that as well, with witnesses if possible. If you disagree with the amount, you can try to contest the notice in a letter to the landlord, but you may end up fighting it in court. You should still pay (or offer a payment plan) for anything you agree that you owe.

    If you make a payment plan, it's especially important to get a written promise that you won't be evicted. As of 3/31/12, once the notice expires the landlord can still evict you, even if you pay the rent in full (Wis. Stat. 799.40(1m), 2011 Wis. Act 143, Sec. 37), and as of 3/1/14 this could be for any money you owe (repair costs, utilities, etc.). 2013 Wis. Act 76 also says that once the landlord files in court, even if you pay in full, they can still evict you. Wis. Stat. 799.40(1m), 2013 Wis. Act 76, Sec. 36 Eff. for evictions filed after 3/1/14.

    NOTE: 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. 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. The landlord has to give you at least 5 days (not counting the day it is served, Saturday, or Sunday, according to Wis. Stat. 801.15(1)(b)) 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 you the landlord has to prove to the judge that you violated your lease and it is often hard to prove non-rent violations.

  3. 14-day Notice with No Right to Cure orders you to move even if you fix the problem and must give you at least 14 days. This does not include the day it was served (Wis. Stat. 990.001(4)(a)), but it does include Saturday and Sunday unless the last day is a Sunday. Wis. Stat. 990.001(4)(b) The only way to avoid court is 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 non-rent) 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, without getting a 5-day notice first. Wis. Stats. 704.17(1)(a) & (b) & (2)(b)

  4. 5-day Notice with No Right to Cure is rare. It can only be given in two circumstances:
      1. 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). 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 nuisance" to a judge. Wis. Stats. 704.17(1)(c), (2)(c), & (3)(b)

      2. Under the Safe Housing Act if there is 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 community. Wis. Stats. 704.16(3)(a) & (b), 710.15(5t), 2013 Wis. Act 76, Sec. 19 Eff. 3/1/14.

    NOTE: 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 there is proof the tenant broke a law. Victims are protected from eviction.

  5. 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 you at least 30 days to pay late rent or take "reasonable steps" to stop violating the lease. Wis. Stat. 704.17(3)(a)

Can landlords give either a 5- 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 5- or non-curable 14-day notice for the second violation. The two categories are:

  1. Non-payment of rent violations Wis. Stat. 704.17(2)(a)
  2. Other substantial violations of the lease Wis. Stat. 704.17(2)(b)

NOTE: 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, Saturday, or Sunday.) The landlord does not need to serve a 14-day notice. 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 violation. Wis. Stat. 704.17(1)

Delivering the Notice

NOTE: 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)

Responding to the Notice

Never ignore an eviction notice! (Unless it is an email hoax!) 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 notice with a right to cure, you have the right to stay if 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. Stats. 801.15(1) & 990.001(4) The landlord cannot remove you, go to court, or refuse a rent payment from you during that time. Documentation is very important! Write a dated letter to the landlord telling them the problem is fixed and keep copies of everything, including payment records. 

NOTE: 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 as well, if possible. If you pay by cash, the landlord is required to give you a receipt. ATCP 134.03(2)(a) If 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 you received a notice without a right to cure and you fix the problem, you would have to negotiate with your landlord to stay. 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 your rent and file for an eviction. As of 3/1/12, once the notice expires the landlord can still evict you, even if you pay the rent in full (Wis. Stat. 799.40(1m), 2011 Wis. Act 143, Sec. 37), and as of 3/1/14 this could be for any money you owe (repair costs, utilities, etc.). 2013 Wis. Act 76 also says that once the landlord files in court, even if you pay in full, they can still evict you. Wis. Stat. 799.40(1m) Eff. for evictions filed after 3/1/14. 2013 Wis. Act 76, Sec. 36

NOTE: 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.

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 and wait for a hearing, then prove you violated the lease and that they served you the proper notices. Oftentimes, landlords and tenants reach an agreement out of court. Sometimes, evictions 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.

NOTE: Once the landlord files a complaint, even if the case is dismissed and the court determines that you can stay, the complaint is public record on CCAP. Future landlords might reject you for the dismissed eviction. It is better to avoid the filing of a complaint if possible, or be prepared to explain this to prospective landlords. If your landlord files in court, make sure to remind new landlords to look at the case details to see the dismissal, or the stipulated dismissal if you came to an agreement. 

WARNING: The landlord could win the eviction and get a judgement for a minimum of double the pro-rated rent for each day after the 5- or 14-day notice expired. Double damages are rare, but it happens. 2011 Wis. Act 143 strengthens the language for landlords to get double damages "at their discretion." 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 Eff. 3/31/12. 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 County can also use the Housing Mediation Service to negotiate an agreement. 

3. You can move out.

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?

NOTE: Only a judge can decide you must leave, and only a sheriff may evict 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. 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 removed, 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)

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 Eff. 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

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!

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 Eff. for evictions filed after 3/1/14.

A landlord's agent can represent them in small claims court, they don't need to be a lawyerWis. Stats. 799.06(2), 799.40(1), 2013 Wis. Act 76, Secs. 30 & 35 Eff. for evictions filed after 3/1/14. Neither of you have to have a lawyer, even if it goes to trial, but you might want one. See our attorney referral list, including free/low-cost lawyers.

You do not need to bring evidence or witnesses to a joinder conference (initial hearing) 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 move-out date) or if there will need to be a trial. If your landlord is willing to settle, you can both sign an agreement called a "stipulated dismissal." As long as you follow it, you will not be evicted. It is very important to only sign an agreement if you can follow it. If you miss a payment or don't move out on time, you can be evicted without going back to court, so make sure what you agree to is reasonable! If you break the agreement, the landlord only has to fill out an affidavit (a sworn statement) and file that with the court. The next step will be the sheriff showing up to evict you and/or the landlord removing your property. Wis. Stat. 799.45, 2013 Wis. Act 76, Secs. 40-57 Eff. 3/1/14. See Tenant Property/Property Left Behind

If you can't reach an agreement, either person can request a trial with a judge on a different date. Make sure you ask for this specifically. Some courts go right from the joinder conference to the trial with very little formal acknowledgement. Your hearing could technically turn into a trial then and there and you might not even notice! Wis. Stat. 799 You could also request a jury trial. 

Check with your clerk of courts for your county to learn the procedure in your county. A basic guide to small claims court is here.

What if I am Evicted?

If you lose the case, the judge will issue a written order called a "writ of restitution." Under 2013 Wis. Act 76, the court must do this "immediately." Wis. Stats. 799.44(1) & (2), 2013 Wis. Act 76, Secs. 38 & 39 Eff. for evictions filed after 3/1/14.

What happens to my property?

For evictions filed before 3/1/14, the landlord must arrange with the sheriff to move and store any property left behind. Only the sheriff can decide if something is trash to be thrown away. The sheriff must tell you within 10 days where your property is being stored and how much it costs to get it back. They must 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)

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 your 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 you from the property. If the lease doesn't say anything about property left behind, the landlord has to follow the rules listed above for evictions 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 Eff. 3/1/14.

Finding Shelter/Housing

After an eviction, it may be very difficult to find housing. If you are evicted you may wish to contact:

These agencies may provide emergency rent, shelter, and other assistance. 

Owing Money For Future Rent & Other Damages

After you are evicted, the landlord can schedule a "rent and damages hearing" where the court will decide how much money you owe. This could be several months away and you will be notified by mail, so make sure that the court has your new address or that you forward your mail. Many tenants come to the Tenant Resource Center with large judgements on their credit reports because they did not know about the scheduled court date and were not there to defend themselves. At this hearing, a court commissioner or judge will determine the amount of money you owe. It is important to attend so that you can minimize the amount you owe, or possibly counter-sue for money you feel the landlord owes you. You 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.

What if my landlord breaks the laws about eviction?

If there was an error in procedure and you were not aware of your court date or did not get proper notice, you may be able to re-open your court case. If the sheriff shows up at your door and that is the first notice you get about a court date, go immediately to the court house and ask to petition to reopen because you weren't properly served.

2013 Wis. Act 76 removed the language about double damages, court costs, and reasonable attorney's fees for all matters in Wis. Stat. 704 except security deposits and illegal lease clause violations. Double damages for violations of Wis. Stat. 704 are only allowed between 3/31/12 and 2/28/14, so double damages for giving incorrect eviction notices are no longer available. However, illegal evictions are entitled to double damages under ATCP 134. This goes into effect for violations that occur on or after 3/1/14. Wis. Stat. 704.95, Wis. Act 76, Sec. 27

Important Phone Numbers

Housing Help Desk 242-7406
First Call for Help Dane County 211 or
(608) 246-4357
Consumer Protection (800) 422-7128
Legal Action of Wisconsin (608) 256-3258
Housing Mediation Service
(Dane County only)
(608) 257-2799
Dane County Small Claims Court (Forms) (608) 266-4311

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 available 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 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 law suit.

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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