Exclusive Possession - Tenant Resource Center



Exclusive Possession

Hey all!

Today is an exciting day because we are gearing up for the Big Share on March 5th (tomorrow!). We've been talking to a lot of people about what home means to them, and it's got me thinking about the basics, about what a home means in tenant-landlord law. 

One of the most basic building blocks in tenant-landlord law is exclusive possession. It is a concept that means that once a landlord offers a space for rent, a tenant has exclusive possession, and, within the rules of the lease, can do whatever they want within the home (as long as it's legal, of course).

For many people, you love who you love in your home. You cook the food of your heart in your home. You raise your children at home. You feel safe to be yourself in your home. These deeply felt concepts are due to the tenant having exclusive possession.

 

Wis. Stat. 704.05(2) says, "the tenant has the right to exclusive possession of the premises." This means that a tenant, limited by what is in the lease and what is in the law, can do whatever they want inside their rental unit. They can invite whomever they choose, they can eat what they like, and they can fly their flags (freak or otherwise) high. 

There are exceptions, but there are not many. The exceptions to exclusive possession are:

  • Landlord Entry: Landlords* can enter a unit at "reasonable times," to make repairs, inspect and show the unit. Administrative code ATCP 134.09(2) puts more restrictions on landlords entering a unit (landlords must give at least 12 hours notice). More information is available on our landlord entry page.
  • Emergencies: If a landlord believes that entry is necessary to preserve or protect the premises, they can come in without that notice. 

But there are tricky parts, too! Here are some of the problematic gray areas:

  • When a landlord is entering really often: We've had tenants call us for problems with the landlord entering really, really frequently (think: everyday). While the law doesn't say whether or not this is allowed, it does say that the landlord can only enter for the amount of time that's "reasonably necessary." If a landlord (or repair person) is entering to do a significant repair, then everyday might not be a big deal, and might not violate the law. If the landlord just wants to look around every single day, that would probably be on the not so "reasonably necessary" side. 
  • Shared spaces: If tenants are renting rooms out of a larger house, one of the issues that comes up is what happens in the shared spaces, and who sets rules for those. Usually, those spaces are not spaces in which the tenant has exclusive possession, so tenants must follow the rules of the house, even if it's a narrower scope than the what the law or the lease would dictate. For clues to figure out what's a tenant's private space, and what's not, look at the lease. It should give a description of the unit, and that's the area in which the tenant has exclusive possession.
  • Peaceful enjoyment: Peaceful enjoyment is a legal concept established under case law, but it's mentioned in the history section at the end of Wis. Stat. 704.05. It's the idea that a landlord is supposed to make it so a tenant can peacefully enjoy what happens inside their rental home, without interference from their surroundings (to the extent that the landlord has control over those things). Sometimes one tenant's exclusive possession (that tenant being super noisy or smelly, say) infringes on another tenant's peaceful enjoyment. Then, the infringed-upon tenant can ask the landlord to take action to deal with the problems. Much more about this on our peaceful enjoyment page

What can a tenant do when they are prevented from exclusive possession of their rental home?

  • Landlord entry problems: since these rights are echoed in ATCP administrative code, tenants have the ability to make complaints to Consumer Protection. They can also sue in Small Claims Court, or call law enforcement. More information on our landlord entry page
  • Peaceful enjoyment problems: for many of these issues, the tenants need to communicate well with the landlord. As a worst case scenario, tenants can move out under constructive eviction. More explanation over on our peaceful enjoyment page
  • If it's just not working, the tenant might consider: file a restraining order, calling the police or breaking a lease. Depending on the situation, of course. 

We see the law as a way for people to get their needs, hopes and dreams met inside their home, which is a beautiful thing. 

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* A reminder: when we say "landlord," especially as it has to do with landlord entry, we mean "anyone in a position of acting as the landlord." This could mean the person who holds the title to the property, the manager, the maintenance person, the roto-rooter guy, or anyone who is doing work that the owner has asked them to do.

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This is the full text of Wis. Stat. 704.05(2): "Until the expiration date specified in the lease, or the termination of a periodic tenancy or tenancy at will, and so long as the tenant is not in default, the tenant has the right to exclusive possession of the premises, except as hereafter provided. The landlord may upon advance notice and at reasonable times inspect the premises, make repairs and show the premises to prospective tenants or purchasers; and if the tenant is absent from the premises and the landlord reasonably believes that entry is necessary to preserve or protect the premises, the landlord may enter without notice and with such force as appears necessary."

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* Hi! Did you know that we are not attorneys here at the TRC?  And this isn't legal advice, either.  If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list. 

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