We are, yet again, making updates to the website. We will work as quickly as we can. This is the 5th law change in 4.5 years and we are short-staffed (feel free to donate here). Until all the updates are made to the website and our training guides and our staff and volunteers are re-trained, brochures will not be available.
Think this is ridiculous? We do too! If you have immediate questions about these law changes, please call the sponsor of all of these bills, Sen. Frank Lasee's office at 608-282-3541.
Unless something else is written in your lease, one of five 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.
What is a Security Deposit?
State law defines a security deposit as the "total of all payments and deposits" given as security and "includes all rent payments in excess of one month's prepaid rent." This includes pet deposits, key deposits, and furniture deposits, as well as the last month's rent if that is what the landlord requires. ATCP 134.02(11) Deposits are kept as a guarantee that the tenant will pay the rent and not damage the apartment.
How Much Can my Landlord Charge?
As much as they want to. There are no longer any limits due to the state legislation.
How Do I Protect my Security Deposit?
Fill Out a Check-in Form
When you move in, your landlord is required to:
- Give you a check-in sheet and let you know you have at least seven days to inform them of any problems. ATCP 134.06(1)(a)1, Wis. Stat. 704.08, 2011 Wis. Act 143, Sec. 18, Eff. 3/31/12 Madison law states that landlords who fail to give tenants a check-in form forfeit rights to deduct from the deposit for cleaning or damages. MGO 32.07(6) & (7), Wis. Stat. 66.0104(2)(a)4, Eff. 12/21/11
- Landlords were only required to fill out a check in sheet themselves between 3/31/12 and 2/28/14. The new law also requires the landlord to provide the tenant a "standardized information check-in sheet that contains an itemized description of the condition of the premises at the time of check-in." So it appears that the landlord should fill in the check-in sheet. Wis. Stat. 704.08, 2013 Wis. Act 76, Sec. 13, Eff. 3/1/14
If you do not receive a check-in form, make your own or use the Tenant Resource Center's Sample. Make a copy of the complete document for yourself and send the original it to your landlord within the deadline they give you (must be at least 7 days). If the landlord doesn't follow check-in procedures, it will be difficult for them to prove the initial condition of the apartment when they try to deduct from your security deposit. Tenants should still fill in their own check-in sheets and take photos or video of the initial condition of the apartment.
When filling out the check-in form, be thorough. The landlord cannot charge you for any existing damages that you include on the check-in form. Note problems with your unit such as:
- stained carpets or damaged floors
- cracked windows
- torn or missing screens
- nail holes, cracked paint, peeling wallpaper
- dirty conditions, fixtures, and appliances
- stained walls and ceilings
- plumbing, sinks, bathtubs, and tiles that are worn, dirty, mildewed, or not working properly
- missing light bulbs or glass light covers
- electrical outlets or other items that do not work (light switches, stove burners, oven coils, etc.)
- countertops that are stained, scratched, or damaged
Get a Witness
Have a friend who isn't living with you witness the conditions at move-in. Have them initial your check-in form or write a separate statement about what they saw.
Take Photos or Video
Carefully photograph or video the apartment when you move in, being especially careful to document all damage. When taking photos or video, consider putting a note with the date and apartment number or address in the photos. This will help you prove when the photos were taken and give a reference for how big a particular stain or area of damage might be. Send (or e-mail) photos or video to your landlord soon after moving in and keep copies for yourself.
Look at Previous Tenant's Charges to Security Deposits
In addition to doing a check-in form and telling the tenants they have the right to inspect the apartment, the landlord must also inform the tenant of their right to request a list of any charges to the previous tenant's security deposit. The landlord can require the request to be in writing. If the tenant requests it, the landlord must send a list of deductions from the previous tenant's deposit within 30 days, or 7 days after they notify the previous tenant of their deductions, whichever is later. ATCP 134.06(1) If you get such a list and find that there are additional damages that were not fixed prior to your moving in that you did not put on your check-in sheet, this will be important evidence of the condition of the unit when you moved in.
Read your NON-STANDARD RENTAL PROVISIONS
This is the part of the lease where the landlord must note all things that they will take from the security deposit beyond what the law states they may deduct for, such as late fees. Make sure your landlord is only charging for actual damages they can document. They cannot charge for Liquidated Damages (random fees), even if they are listed in the NON-STANDARD RENTAL PROVISION. Example: $500 for having a beer keg in your apartment. Landlords may be confused or encouraged by the passage of the new laws, but nothing has changed allowing them to charge penalties for items that do not include damage to property or money losses. ATCP 134.06(3)(b), Wis. Stat. 704.28(2)
Landlords are no longer required to "discuss" (but must still “identify”) any Nonstandard Rental Provisions which allow deductions from the security deposit for things not included in ATCP 134.06(3)(a). This makes the language consistent with Wis. Stat. 704.28(2). CR 14-038, Sec. 7 & 8, Eff. 11/1/15.
What Should I do Before Leaving an Apartment?
Try to schedule a check-out appointment with your landlord. If your landlord agrees to do this, make sure you leave with a signed copy of the check-out form. If the landlord notes things are dirty or damaged, offer to clean or fix them.
If your landlord refuses to go through the apartment with you, complete your own check-out form and take pictures documenting the condition of the apartment. Remember to put something in the photo to use as a reference point for the date and the size of damages. Consider having the same witness who was present for check-in help with the check-out.
If your landlord presents you with a check-out form that lists damages you, your roommates, or your guests did not cause, do not sign it. Instead, complete your own check-out form and keep a copy. You should also take pictures or video to prove the condition of the apartment. Keep copies of everything!
Also, make sure you leave your forwarding address on the check-out form, or otherwise put this in writing to the landlord. Landlords are no longer required to mail the security deposit to the tenant's last known address if the tenant does not leave a forwarding address. Landlords still have to “deliver or mail” the security deposit, but there is no requirement in the regulations about where to send it. It could end up at an old co-signer's address, the apartment address, etc. ATCP 134.06(2), CR 14-038, Sec. 4, Eff. 11/1/15.
Landlords who fail to provide a check-out form similar to the check-in form forfeit their right to deduct for damages or cleaning. MGO 32.07(6), MGO 32.07(5)(a), Wis. Stat. 66.0104(2)(b), Eff. 12/21/11
When Must my Landlord Return my Deposit?
The landlord has 21 days after your lease ends to send you the full security deposit and/or an itemized list of deductions. ATCP 134.06(2)(a), Wis. Stat. 704.28(4), MGO 32.07(7) If the landlord doesn't do this, the law allows you to take further action (see below), but the landlord doesn't waive the right to charge you for damages after that date.
The landlord no longer returns the security deposit based on when the premises is "surrendered." Now, the landlord has to return the security deposit 21 days after any of the following:
- The date the lease ends, if the tenant leaves at the end of the lease ATCP 134.06(2)(a); or
- The date the lease ends or the date a new tenant’s lease begins, if the tenant is evicted or leaves before the lease endsATCP 134.06(2)(b); or
- The date the premises is known to be vacated or the date that the tenant is removed due to an eviction if the tenant is evicted due to holding over. ATCP 134.06(2)(c)
What if I Move Out Early?
If you move out before the lease is over, write a letter stating which day you are moving and return the keys to the landlord so there is no question of whether you still have possession of the apartment. The 21 day countdown starts on the day the rental agreement ends or the date a new tenancy begins, whichever is sooner. There are exceptions for subletting. (See Ending Your Lease for more information about possible changes for rent while the unit is vacant.) Wis. Stat. 704.28(4)(b) This law went into effect for anyone vacating their leases early as of 3/31/12. Before, the landlord had 21 days from the day you "surrendered the premises." You had to notify the landlord in writing if you moved out early, otherwise you would have to wait until the lease was over for the 21 days to begin. ATCP 134.06(2)(b), MGO 32.07(7) If a lease has a provision that is contrary to this law, the law first goes into effect when that lease is renewed. Wis. Stat. 704.28, 2011 Wis. Act 143, Sec. 22
What Might my Landlord Deduct for?
- Unpaid Rent (some exceptions in Wis. Stat. 704.29)
- Unpaid Utilities owed under the rental agreement, or for which the landlord becomes responsible
- Damages caused by the tenant or their guests that go beyond "normal wear and tear"
- Unpaid monthly municipal permit fees, Wis. Stat. 704.28, 2011 Wis. Act 143, Section 22, Eff. 3/31/12. The Consumer Protection regulations used to call these "mobile home parking fees." This was updated on 11/1/15 to be consistent with 704.28. ATCP 134.06(3)(a)5, CR 14-038, Sec. 6
Language was changed to clarify that deductions are made from a full amount of the security deposit, and only for the amount that is reasonably necessary to pay for things they were allowed to deduct. ATCP 134.06(3)(a) , CR 14-038, Sec. 6 Eff. 11/1/15.
Nonstandard Legal Deductions
Your landlord can deduct for things other than what's listed above only if it is otherwise legal to charge for it (see below) AND if you initialed provisions on separate page titled "NONSTANDARD RENTAL PROVISIONS" when you signed your lease. This may include late fees, etc. MGO 32.07(14)(f), ATCP 134.06(3)(b), Wis. Stat. 704.28(2)
Landlords may never deduct for "normal wear and tear" or for other losses that the tenant is not responsible for under the law, even if the tenant signed a NON-STANDARD RENTAL PROVISION authorizing these deductions. ATCP 134.06(3)(c), MGO 32.07(14), Wis. Stat. 704.28(3)
It is illegal to deduct for routine carpet cleaning from the security deposit–even if you signed a lease that states that you must pay for carpet cleaning. The exception is if you damaged the carpet beyond "normal wear and tear." If your landlord deducted money from your security deposit for routine carpet cleaning, follow the steps below. ATCP 134.06(3)(c) and Wis. Stat. 704.28(3) Be aware that the landlord may still try to get the money in small claims court.
A new note in ATCP 134.06(3)(c) makes it clear that even though a landlord is allowed to write a lease saying the tenant has to pay for routine carpet cleaning, they may not take this out of the security deposit. Any carpet cleaning charges they collect in advance must be treated as part of a security deposit, which must be subject to a refund. Deductions cannot include "normal wear and tear." Essentially, a landlord would have to sue a tenant as a separate matter if they did not pay for routine carpet cleaning required by the lease. CR 14-038, Sec. 10, Eff. 11/1/15.
Can I Cash a Partial Check?
It is risky. The regulations no longer guarantee that a tenant can still sue for the rest of the amount they feel they are owed. If you must cash the check, write on it "Partial Payment" or "Rights Reserved" and include a letter explaining you are only accepting this as a partial payment. ATCP 134.06(2)(e), MGO 32.07(7)(d) CR 14-038, Sec. 4, Eff. 11/1/15
Who Should My Deposit be Returned to?
Whoever you told the landlord in writing to make the check out to, or whoever the landlord chooses to return it to if there were no written instructions. The regulations no longer tell the landlord they have to put everyone's names on the check, so tenants should think carefully about who they want the check going to / cashed by. It is easier to have it be just one person, but there is more accountability if everyone has to sign it. ATCP 134.06(2)(d), MGO 32.07(7)(c), CR 14-038, Sec. 4, Eff. 11/1/15. The check-out form must provide an obvious place for the tenant's forwarding address. MGO 32.07(5)(d), Wis. Stat. 66.0104(2)(b), Eff. 12/21/11
What if I Don't Receive my Deposit or List of Deductions?
If the landlord does not return the full deposit or a detailed list of deductions within 21 days after you move out, you can sue the landlord for triple double the amount of the deposit plus court costs and reasonable attorney's fees. Wis. Stats. 100.20(5), 704.95, 66.0104(2)(b), MGO 32.07(10)
What if my Landlord Deducted Money from my Deposit Unfairly?
If the landlord violates any of the rules mentioned here, you may take the following actions:
Write a Letter to Your Landlord
A sample letter is available here. Whatever you send should include the following:
- A description of each deduction with which you disagree and why.
- Specific mention of the law or laws that have been violated ATCP 134.06, Wis. Stat. 704.28, MGO 32.07, Eff. 12/21/11 or 3/12/14
- An explanation that you could take further action, including small claims court for triple double the amount wrongfully withheld, court costs, and reasonable attorney's fees or filing a complaint with Consumer Protection (see below). MGO 32.07(10), ATCP 134, Wis. Stat. 100.20(5), Wis. Stat. 66.0104(2)(b)
- A reasonable deadline for the landlord to return the total deposit (for example, an exact date 5 - 14 days away).
Be sure to keep a copy of the letter for your records.
File a Complaint with Consumer Protection
You can easily file a complaint with the Department of Agriculture, Trade and Consumer Protection. The bureau keeps complaint records and will contact the landlord about the violation. To get a complaint form, call (608) 224-4953 or (800) 422-7128 or fill one out online.
Sue in Small Claims Court
You can sue at any time, but it will look better if you wait until after the deadline in your letter expires and the landlord doesn't respond. You may sue your landlord in small claims court for triple double what was wrongfully withheld plus court costs and reasonable attorney's fees. MGO 32.07(10), Wis. Stat. 100.20(5), Wis. Stat. 704.95, Wis. Stat. 66.0104(2)(b)
Dane County Small Claims Court is located at 215 S. Hamilton St. You must go there fill out a simple "summons and complaint" form and pay a $94.50 filing fee. (This fee may be waived if you receive Food Stamps or BadgerCare or are otherwise low-income.) If you win your landlord will have to pay you that filing fee plus any court costs, or reasonable attorney's fees awarded by the court. The landlord might not contest your case, might settle, or might counter-sue you for more more.
Earnest Money: The total of any payments or deposits, however described, given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for having a rental agreement considered by a landlord. "Earnest money deposit" does not include a fee which a landlord charges for a credit check. Sometimes this is called hold money, money down or an application fee.
Normal Wear and Tear: This is a term that Wisconsin laws do not define. It refers to the deterioration of the premises that occurs during normal conditions where the tenant cleans regularly and cares for the premises reasonably.
Security Deposit: The money a tenant pays to a landlord when entering into a rental agreement to guarantee the tenant's obligations. It is any amount above one month's prepaid rent (including all pet deposits, key deposits, and furniture deposits). There is no such thing as an automatically non-refundable deposit.
Madison law specifically states that charges shall not be deducted from the security deposit for tenant damage, waste, or neglect unless the landlord has documented such damage with photographic evidence to the extent the conditions can be photographed. The photographic evidence must be retained for at least 90 days from the date of return of the security deposit and/or the written itemized statement of deductions. MGO 32.07(14)(a)
The written itemized statement of deductions must contain a notice that the tenant will be provided copies of photos documenting the damage, waste, or neglect, if the tenant makes a written request within 30 days of receipt of the statement. MGO 32.07(7)(b)
The failure of the landlord to take, provide, or retain these photographs does preclude the landlord from making deductions from the security deposit, but does not preclude the landlord from taking separate action to recover damages in small claims court. MGO 32.07(9) & (14)(a), MGO 32.07(7)(a), Wis. Stat. 66.0104(2)(b), Eff. 12/21/11
Does my Landlord Have to Pay Interest?
As of 12/21/11, Madison landlords do not have to pay security deposit interest. However, they still owe interest until that date for deposits held when the law changed, or for any period of time if it says in the lease that they will pay interest, even if they are returning them much later. See below for how to calculate interest.
If your security deposit was more than half of a month's rent, your landlord must pay simple interest from the time you pay the deposit until the time you move out. MGO 32.07(3) The interest rate changes every year as follows, and the amount of interest is changed on the anniversary of the date it was initially received:
- 2004 - 0.81%
- 2005 - 0.72%
- 2006 - 0.83%
- 2007 - 0.94%
- 2008 - 0.94%
- 2009 - 0.75%
- 2010 - 0.46%
- 2011 - 0.37%
For example, if a tenant paid $1000 for a security deposit on January 10, 2005, moved into the unit on August 15, 2005, and moved out August 14, 2007, that tenant would receive:
- 0.72% interest from January 10, 2005 - January 10, 2006 which equals $7.20, plus
- 0.83% interest from January 10, 2006 - January 10, 2007 which equals $8.30, plus
- 0.94% interest from January 10, 2007 - August, 14, 2007 which equals $5.55 (calculated by 0.94% x $1000 x the part of the year that the tenant resided there which is 59%)
The return would be a total of $1021.05, assuming no deductions were taken.
The rates can also be found under the State of Wisconsin Department of Financial Institutions' (DFI) announced interest rate to be paid by Wisconsin's financial institutions for money held in escrow accounts for real estate. You can also call the City of Madison Building Inspection Unit at (608) 266-4551 to find out the current rate.