Once your situation gets to the court process, you'll want to make sure you have a clear understanding of what comes next. You may also want to consider contacting an attorney, though you can represent yourself in eviction court.
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), 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, and only if the judge rules in the landlord's favor. Then, the judge's order must be given to the sheriff who would then remove the tenant from the apartment. The landlord cannot change the locks, throw the tenant's stuff out, or take any other action without this court order, and the sheriff is the only person who can physically remove the tenant.
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, Effective for evictions filed after 3/1/14.
A landlord's agent or employee can represent them in small claims court and that person doesn't need to be a lawyer. Wis. Stats. 799.06(2), 799.40(1), 2013 Wis. Act 76, Secs. 30 & 35, Effective for evictions filed after 3/1/14. Neither party is required to have a lawyer, even if it goes to trial, but you might want one. See our attorney referral list which includes free and low-cost lawyers. Lawyers who help draft pleadings, motions , or documents for self-represented persons must now include their name and state bar number on any such documents, and note that it was prepared with the help of a lawyer. Attorneys are not required to sign the document. Wis. Stat. 802.05(2m), 2017 Wis. Act 317, Sec. 53, Effective 4/18/18.
The purpose of the first hearing is to find out if there will be a settlement (like a written payment plan or move-out date) or if there will be a trial. If a tenant wants to fight the eviction, they should come with a list of laws that they think apply, since the court will only schedule a full trial with a judge if the tenant brings up "valid legal grounds." They do not need to prove their case at the initial hearing, but they might want to bring any evidence they have. Wis. Stat. 799.206(3), 2017 Wis. Act 317, Sec. 49, Effective 4/18/18.
If the landlord is willing to settle, both people can sign an agreement called a "stipulated dismissal." As long as the tenant follows it, they will not be evicted. It is very important that tenants only sign an agreement if they can follow it! If the tenant misses a payment or doesn't move out on time, they can be evicted without going back to court. Tenants should make sure what they agree to is reasonable! If they break the agreement, the landlord only has to file an affidavit (sworn statement), and the court will order an eviction without another hearing. The next step will be the sheriff showing up to evict the tenant and/or the landlord removing their property Wis. Stat. 799.45, 2013 Wis. Act 76, Secs. 40-57 Effective 3/1/14. See Tenant Property/Property Left Behind and Small Claims Court Tips.
Other Help In Eviction Process
Check with your clerk of courts for your county to learn the specific procedure in your county. Click here for a basic Guide to Small Claims Court or here for more Small Claims Court Tips on our blog. Click here for an Attorney Referral List.
What if I am Evicted?
If you lose the case, the judge will issue a written order called a "writ of restitution." This returns possession of the rental property to the landlord. Under 2013 Wis. Act 76, the court must issue the writ "immediately." Wis. Stats. 799.44(1) & (2), 2013 Wis. Act 76, Secs. 38 & 39, Effective for evictions filed after 3/1/14.
What happens to the tenant's property?
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 tenant 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 the tenant from the property. If the lease doesn't say anything about property left behind, the landlord has to follow the rules listed below for evictions filed 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, Effective 3/1/14.
Owing Money For Future Rent & Other Damages
After a tenant is evicted, the landlord can schedule a "rent and damages hearing" where the court will decide how much money the tenant owes. This could be several months away and the tenant will be notified by mail, so they should make sure the court has a new address, or that they forward their mail. Many tenants come to the Tenant Resource Center owing large amounts of money on their credit reports (often for money that they don't feel they owed!) because they did not know about the rent and damages hearing, and were not there to defend themselves. At the rent and damages hearing, a court commissioner or judge will determine the amount of money the tenant owes. It is important for tenants to attend so that they can argue against money they don't think is fair, lower the amount they owe, or even counter-sue the landlord for money they feel the landlord owes them. The tenant 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 the landlord breaks the laws about eviction?
If there was an error in procedure and the tenant didn't know about their court date, or did not get proper notice, they may be able to re-open the court case. If the sheriff shows up at your door with a notice for you to leave and that is the first notice you get about a court date, the tenant should go immediately to the court house and ask to petition to reopen for not being properly served.
"Self-help" evictions are illegal under ATCP 134.09(7). "Self-help" evictions refer to the landlord trying to force a tenant out by doing things like changing the locks themselves, throwing the tenant's stuff out, shutting off power, etc. without a court order. If this happens, tenants can sue in small claims court for double their costs (hotel rooms, etc.), plus court costs and reasonable attorneys under ATCP 134. Sometimes the threat of this (in writing!) is enough to get the landlord to stop committing an illegal eviction.