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Landlord Retaliation
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...a landlord in a residential tenancy may not increase
rent, decrease services, bring an action for
possession of the premises, refuse to renew a
lease or threaten any of the foregoing, if there is
a preponderance of evidence that the action or
inaction would not occur but for the landlord's
retaliation against the tenant for ... making a
good faith complaint about a defect in the premises
... complaining to the landlord about a
violation of s. 704.07 or a local housing code ...
exercising a legal right relating to residential tenancies.
from Wisconsin Statute 704.45,
"Retaliatory Conduct Prohibited"
Have you experienced retaliation
for exercising your tenant rights?
The law protects tenants from landlords who would
retaliate against tenants for trying to exercise their
rights. The legislature, courts, and the Department of
Agriculture, Trade and Consumer Protection have all
created protections recognizing that tenant rights are
meaningless if tenants will not use them for fear of
landlord retaliation. If you believe your landlord has
illegally retaliated against you, ask yourself the following
three questions:
1. Can you show that you asserted, exercised or attempted to exercise a tenant right?
The first indication that an action may be illegal retaliation
is that it follows a tenant exercising a legal
right relating to residential tenancies. Tenants do not
need to have finished exercising the right, they could
just have asserted the right or attempted to use it.
Tenant rights include:
- demanding required or promised repairs
- calling the building inspector
- demanding the landlord only enter for purposes
allowed by landlord regulations
- refusing landlord entry without proper notice
- filing a complaint with Consumer Protection or
Tenant Resource Center or filing a suit against the
management
- having a guest under the tenant's right to "exclusive
possession of the premises" since the lease does
not forbid guests
- refusing to allow the landlord to change substantial
rules in the middle of the lease
- demanding an end to discrimination (for example
a Black tenant demanding an air conditioner since
one was provided to all White tenants but none to
Black tenants)
- demanding the landlord protect the tenant's right
to peaceful enjoyment by warning or evicting a
noisy neighbor
- asserting or attempting to exercise any tenant right
from a lease, statute, ordinance, administrative
code or court decision.
Even if the landlord and tenant both know that the
tenant asserted a right, the problem may be documenting
it. When tenants have a concern-about repairs,
for example-they should never express it
only verbally. Tenants should follow up in writing
and keep a copy of the letter. Also, if tenants file a
complaint with a building inspector, Consumer Protection
or another agency, they should get a copy of
the report for their records as soon as possible.
Did your landlord perform a retaliatory action?
Prohibited retaliatory acts under Wisconsin
Statute 704.45
- Increasing the rent
- Decreasing the services available to the tenant
- Filing an eviction action in court
- Refusing to renew the lease
- Threatening to do any of the above.
Prohibited retaliatory acts under the
Wisconsin Administrative Code ATCP
134.09(5) and Madison General Ordinances 32.12(4) and 32.15
- Terminating a tenancy
- Giving notice preventing the automatic renewal of
a lease
- Constructively evict a tenant by reducing heat, water
or electricity.
An additional retaliatory act prohibited in the City of Madison only is reporting the tenant to law enforcement authorities as having unlawfully entered or immigrated into the United States regardless of the validity of such a report (MGO 32.12(4)) in order to retaliate against the tenant for having exercised his or her rights as a tenant.
3. Did the landlord do this because you asserted, exercised,
or attempted to exercise a tenant right?
Each regulation has a different level of proof required
for the act to be considered illegal:
Proof needed for Wisconsin Statute 704.45
- The tenant must only show that most of the evidence
indicates the landlord would not have done
the action "but for" the tenant's exercise of a tenant
right.
- While the landlord could have other legitimate reasons
for doing the eviction or act, the retaliation is
still illegal if the landlord would not have retaliated
except that the tenant exercised his or her rights.
- Wis. Stat. 704.45 provides absolutely no protection
against eviction if tenants are behind in their rent
(except if the rent not paid is due to a retaliatory
rent increase).
- Wis. Stat. 704.45 provides absolutely no protection
for tenants making complaints about defects in the
premises they caused themselves through negligence
or improper use.
Proof needed for Wisconsin Administrative
Code ATCP 134.09(5)
- Tenants can enforce this code by filing a complaint
with Consumer Protection.
- The code also protects tenants who "asserted, or
attempted to assert any right," whereas the statute
seems only to protect tenants who actually exercise
a right.
- If tenants sue in Small Claims Court for violation
of these codes, they must receive double any related
financial loss (Wis. Stat. 100.20(5)).
Proof needed for Dikhut v. Norton (1970)
- Dikhut v. Norton is court-made law that protects
tenants right to use a "public policy" like the building
code.
- The case can protect tenants asserting or attempting
to use a public policy (unlike the statute) and
can protect tenants not covered by the Consumer
Protection (ATCP) code.
- The case requires a strong level of proof; the assertion,
use, or attempted use of public policy must
be the only reason for the landlord's eviction or
harassment.
Proof needed for Madison General
Ordinance 32.12(4) and 32.15
- City of Madison residents have the same protections
as in the Consumer Protection code, but the
burden of proof is put on the landlord.
- City police can issue fines from $150 to $900.
- If the matter goes to court, the tenants can cite
MGO 32.15, which requires the court to "presume"
the landlord is retaliating if the landlord's
act occurred within six months after the tenant
made a complaint to city authorities.
How can I respond to landlord retaliation?
Tenants who believe they are being retaliated against
should do the following:
- Document what is going on. Tenants should
write a letter to the landlord that documents that the
act is retaliatory and they know it. For example, "As
you know, I asked you last week to stop entering
without proper notice. Today you have given me a
nonrenewal notice. You should be aware that your
nonrenewal is invalid and illegal under statute 704.45
and ATCP 134.09(5). I intend to renew and expect
you to rescind this notice and remove it from my
file. I know my rights to file a complaint or sue for
double damages."
- Contact an agency. If the landlord does not
quickly rescind the act in writing, send a copy of
your letter to Consumer Protection or call them tollfree
at (800) 422-7128. Tenants in cities like Madison
should also forward their complaint to the building
inspector, police department, and City Attorney.
Agencies may warn the landlord to stop their threats
or harassment, or even prosecute if the landlord has
violated regulations before.
- Gather evidence. If the act(s) occurred after
you called the inspector, police or other agency,
make sure you get a copy of their report for your
records. If the landlord sues to evict you, you can
bring the report, letters from the landlord, your letter,
any other evidence or witnesses, and copies of
the laws and ask that the eviction be dismissed.
- Bring it to a judge. If the landlord's retaliation
has cost you, you can sue for any related damages.
Violations of Consumer Protection laws require a
mandatory double of related damages plus court
costs and attorney fees. If the landlord is threatening
an eviction suit, the tenant can write back explaining
they know they cannot be evicted in retaliation for
exercising their rights, and bring a copy of the letter
and other evidence for the judge to see at the eviction
trial. Attorneys are not required in small claims
court or eviction cases, but tenants may want to contact
a qualified Wisconsin housing attorney.
