For a condensed version of the information below, click here for a printable pdf.
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 12/21/11 (2011 Wis. Act 108)
Orange text applies to leases and events as of 3/31/12 (2011 Wis. Act 143)
Green text applies to leases and events as of 3/1/14 (2013 Wis. Act 76)
Blue text applies to leases and events as of 11/1/15 (CR 14-038)
Maroon text applies to leases and events as of 3/2/16 (2015 Wis. Act. 176)
More information on 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.
...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 sign 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 (Madison and Fitchburg or Wisconsin)
- 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 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 condition 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
- Or, enforcing many other rights not listed above.
Start a paper trail when asserting your rights!
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 just talk to the landlord on the phone or in person. Tenants should follow up in writing and keep a copy of the letter or e-mail. 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.
2. Did your landlord perform a retaliatory action?
Some things landlords do to retaliate are not illegal, like being rude to you or talking about you to the neighbors. Only the following actions are illegal retaliation.
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) & 32.15
- Terminating a tenancy
- Giving notice to stop an automatic renewal of a lease
- Constructively evicting a tenant by reducing heat, water, or electricity (illegal, even if not retaliatory, see Eviction for more information)
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 in order to retaliate against the tenant for having exercised their rights as a tenant, regardless of the validity of such a report. MGO 32.12(4)
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 it is more likely than not that the landlord would not have done the action "but for" the tenant exercising 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 their rights. However, 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 or damages which they caused themselves through negligence or improper use.
As of 3/31/12 if tenants sue in Small Claims Court for violations of these laws, they can receive double any related financial loss. Wis. Stat. 704.95, 2011 Wis. Act 143, Sec. 36 Eff. 3/31/12. Under 2013 Wisconsin Act 76 removed the language about double damages, court costs, and reasonable attorney's fees for all matters in Wis. Stat 704 except for security deposits and illegal lease clause violations. Double damages for violations of chapter 704 are only allowed between 3/31/12 and 2/28/14. Wis. Stat. 704.95, 2013 Wis. Act 76, Sec. 27
NOTE: Double damages are always allowed for landlord retaliation under ATCP 134. See below.
Proof needed for Wisconsin Administrative Code ATCP 134.09(5)
• Like Wis. Stat. 704.45 the Consumer Protection code protects tenants who actually exercise a right. Unlike the state statutes, it also protects tenants who "asserted, or attempted to assert any right."
Tenants can file a complaint with Consumer Protection and/or sue in small claims court for double damages, court costs and reasonable attorney fees. ATCP 134.09(5)
Proof needed for Dikhut v. Norton (1970)
Dikhut v. Norton is a court decision that protects a tenant's right to use a "public policy" like the building code. The case can protect tenants asserting or attempting to use a public policy (unlike Wis. Stat. 704.45) 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.
• City of Madison residents have the same protections they do in the Consumer Protection regulations, but the burden of proof is put on the landlord, meaning they have to show they weren't retaliating, or the tenant will win.
• 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.
City of Madison police can issue fines from $60 to $600 for a limited number of violations (removing doors and windows, confiscating property, entering property without notice, failure to provide rent credit or return a security deposit).
Responding to landlord retaliation
Tenants who believe they are being retaliated against should do the following:
1. 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 my damages."
2. Contact an agency. If the landlord does not quickly take back the retaliation in writing, send a copy of your letter to Consumer Protection or call them toll-free 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.
3. 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.
4. 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 mandatory double damages plus court costs and attorney's fees.
Retaliation laws are in both Wis. Stat. 704 and ATCP 134. Double damages for ATCP 134 have remained the same.
Double damages for violations of all of chapter 704 are only allowed between 3/31/12 and 2/28/14. After 2/28/14 they are only allowed for security deposits and illegal lease provisions. Wis. Stat. 704.95, 2013 Wis. Act 76, Sec. 27
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. If it goes to court they can bring a copy of the letter and other evidence for the judge to see. Unfortunately, the tenant has to fight the retaliation with their housing on the line. Attorneys are not required in small claims court or eviction cases, but tenants may want to contact a qualified Wisconsin housing attorney. For more information see Eviction.