The eviction process begins when a tenant receives an eviction notice detailing the provisions of the lease agreement that have been violated (often non-payment of rent or violation of a rule in the lease). Below is a list of things to consider when you receive an eviction notice.
What type of notice did you receive?
- Be in writing
- State the number of days the tenant has to take action (this is complicated - more information on counting days is here.)
- State whether the tenant has the right to cure (fix) the problem
- State whether the tenant can fix the problem and can stay, or if they just have to leave, and
- State whether the rent is due (should include the amount) and/or the lease clause that the landlord believes has been broken.
There are several types of eviction notices. Which one the landlord can serve depends on your lease, the violation, and (sometimes) how many notices the tenant has gotten in the last 12 months.
Need help figuring out what kind of lease you have / what notices apply? Click here!
- 5-day Pay or Quit Notice with Right to Cure is a warning to pay late rent or late fees. Wis. Stat. 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18. The landlord can only give this notice at a point when the rent is late, or late fees are owed. The tenant does not need to leave within 5 days, and this notice can be cured (fixed)! The tenant has the opportunity to resolve the problem and stay in the apartment. By law, the landlord has to allow tenants at least 5 days to pay overdue rent and late fees (not counting the day it is served according to Wis. Stats. 704.17(1)(a) & (2)(a), & 990.001(4). More info on counting days is here).
- 5-day Notice for Non-Rent Violation with Right to Cure is a warning that the tenant broke a clause or rule in the lease other than non-payment of rent or late fees. Wis. Stat. 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18. The landlord has to give them at least 5 days (not counting the day it is served) to take "reasonable steps" to fix the problem, or make a "reasonable offer" to pay the landlord in the case of damages to the unit. Wis. Stat. 704.17(2)(b) Within 5 days, tenants should write to the landlord and either deny any violation, or explain what reasonable steps they took to cure (or fix) it (like turning down the stereo or creating less noise). Remember, to evict a tenant the landlord has to prove to the judge that they violated t lease. It is often hard to prove ongoing non-rent violations.
- 14-day Notice with No Right to Cure orders the tenant to move even if they fix the problem, and it must give them at least 14 days to move. This does not include the day it was served (Wis. Stat. 990.001(4)(a)). The only guaranteed way to avoid court is for the tenant to move out before it expires, or work out another agreement (in writing) with the landlord. Tenants with rental agreements for a set term of one year or less can only be given this notice if they already received a curable 5-day notice for the same violation type (rent or late fees, or anything other than rent/late fees) within the previous 12 months. Landlords can give a 14 day notice to week-to-week and month-to-month tenants at any time they are behind in rent or late fees, without getting a 5-day notice first. Wis. Stats. 704.17(1)(a) & (b) & (2)(b), 704.17(1g), 2017 Wis. Act 317, Sec. 44, Effective 4/18/18.
- 30-day Pay or Quit Notice with Right to Cure is only for tenants with a lease for more than a year, and is the only notice they can be served (other than a 5-day with no right to cure under the Safe Housing Act or for a drug nuisance). It gives them at least 30 days to pay late rent or take "reasonable steps" to stop violating the lease. Wis. Stat. 704.17(3)(a)
How are non-renewal notices different?
A non-renewal notice isn't an eviction notice. If you receive a notice saying your landlord isn't renewing your lease, there are a couple of things to consider:
- If you have a lease with a term (i.e., a year long lease, a 9 month lease, any defined period of time), where beginning dates and end dates on the lease are written down, then notice is NOT required, from neither the tenant or the landlord, unless your lease says otherwise. If your lease says that notice is required on a term lease, then go here to learn more, because it might not be enforceable.
If you have a month to month tenancy (a lease that has terms but no end date, where you pay on a monthly basis), then written notice IS required, from both the landlord and the tenant. Wis. Stat. 704.19 explains that month-to-month tenancies can be ended by giving at least 28* days written notice to the other party. Here's how those non-renewal notices work:
- The notice must end on the last day of a rental period. If rent is paid on the first day of the month, then the last day of the month is the last day of the rental period. If rent is paid on the 15th of each month, then the 14th will be the last day of the rental period.
- The notice has to be at least 28* days notice - it can't be shorter, but longer notice can be given and can be required (see the last bullet, below).
- If the notice gives less than the correct number of days (i.e., only 22 days instead of the full 28*), then the notice is still valid, but just postponed until the end of the next rental period where the correct number of days (or more) have passed. (If a tenant gives incorrect notice to the landlord, and then they move out instead of waiting until the time has passed, then it's more like breaking their lease, with the mitigation requirements on the landlord. See our Ending Your Lease page for more info).
- The notice has to be in writing, even if the original agreement wasn't.
- An example might be: Rent is due on the first of each month, and there was nothing in the original agreement about length of time required to end the lease. Tenant writes the landlord a letter, and sends it on the 30th of June, ending the lease the 31st of July. Landlord receives that notice by July 2, and tenant moves out before the month is over. At least 28* days' notice was given, and the contract is complete.
- If your lease has language requiring more than 28 days notice, then that is enforceable! Wis. Stat. 704.19(2)(a)1 says that 28 days' notice is required, unless another method is agreed upon by "clear and convincing proof," which can often be established by an agreement that everyone signed, such as an expired lease. Look for the *asterisk above and replace it with whatever amount of time is required in your lease, if this is your situation. In a situation where a lease requires the tenant to give more than 28 days notice, but says nothing of the landlord's obligations, then the landlord probably has to give 28 days notice, and the tenant has to give whatever is specified in the lease.
- If you have a lease that expired a while ago, but you still pay on a monthly basis, then you're a month to month tenant. (Yay! Now you know what you are!) More information on becoming a tenant through lapsed leases is here. To end the agreement, then written notice IS required, from both the landlord and the tenant. Follow the steps in #2 above for ending a month to month tenancy.
- If you have a rental agreement where the payment isn't regular (rent isn't paid regularly by month/week/day), and may involve services (but not employment) or purchases of goods, then you might be a tenant at will. If you are a tenant at will, then notice IS required to end whatever arrangements have been agreed upon, from both the tenant and landlord. Steps are the same as month to month tenants (#2, above), except:
- Since there is no rental period for tenancies at will (one of the hallmarks of tenancies at will is that payment occurs pretty randomly), notice can be given at any point, as long as there are enough days in the notice.
- An example: The tenant pays the landlord by buying groceries here and there, and the landlord wants the arrangement to end, and the tenant to leave. So, landlord gives 28* days written notice to the tenant, and once that notice is up, the tenancy is over.
I've received an eviction notice; what do I do next?
Many tenants mistakenly believe the landlord can kick them out when an eviction notice expires. This is not true! The only thing the landlord can do is file for an eviction hearing in court, where the tenant has a chance to fight the eviction and/or try to settle with the landlord. The fact that you went to court will now be on both people's public record, and so will the results of the case (eviction, dismissal, or stipulated dismissal). After getting an eviction notice, tenants can move out to avoid going to court, but they often have the chance to fix the problem and stay, without ever going to court.
Tenants should never ignore an eviction notice! Once they receive a 5-, 14-, or 30-day notice, tenants have three options:
1. Fix the problem and remain in the apartment, if applicable.
If they got a notice with a right to cure, they have the right to stay if they pay the full amount due (or the amount they believe to be correct) or if they take "reasonable steps" to fix another type of violation within the time limit (the day served does not count, and more info on counting days in a notice is here). Wis. Stats. 990.001(4), 704.17(4m)(b), 2017 Wis. Act 317, Sec. 45, Effective 4/18/18. The landlord cannot kick them out, go to court, or refuse a rent payment from the tenant during that time. Documentation is very important! Tenants should write a dated letter to the landlord telling them the problem is fixed, and keep copies of everything, including payment records.
NOTE to TENANTS: If you pay by money order, make sure you make it payable to the landlord (like a check) and keep a copy. Otherwise it will be hard to prove you paid it. Get a receipt from the landlord, too (if possible). If you pay by cash, the landlord is required to give you a receipt. ATCP 134.03(2)(b) If you must pay in cash and they won't give you a receipt, bring a witness, document the amount paid with the date and time, and consider filing a complaint with the Department of Agriculture, Trade and Consumer Protection. Get the agreement in writing so they cannot evict you after taking your money.
If tenants get a notice without a right to cure but they still fix the problem, they will have to negotiate with the landlord in order to stay. Tenants should document any attempts to fix it and get any agreement in writing.
With a 14-day notice, or after the 5-day notice with a right to cure expires, the landlord could refuse to take the rent and instead file for an eviction.
2. Contest the violation and stay.
A tenant might decide to stay if they believe the landlord has no legal reason for eviction. Remember, tenants have a right to a trial. The landlord will need to pay a filing fee and wait for a hearing, then prove that the tenant violated the lease and that they served the proper notices. Oftentimes, landlords and tenants reach an agreement out of court. Sometimes, eviction notices or filings have no grounds. Some evictions are dismissed (thrown out) or tenants win counter-claims because of laws against discrimination and landlord retaliation. Judges can even allow tenants to reduce a percentage of rent to compensate for major health and safety violations. Contact the Tenant Resource Center for more information or a housing attorney for legal advice.
WARNING: One risk of staying is that landlord could win the eviction case and the court could decide the tenant owes at least double the pro-rated rent for each day they stayed after the 5- or 14-day notice expired.
3. Move out before it goes to court.
This is always an option to avoid court, no matter what type of notice you get. It won't always prevent the landlord from filing the eviction anyways, so it is best to be very clear with the landlord that if you move out, they will not file. This may only be an option if you have a place to go. However, moving out does not end your responsibility for the rental agreement. Even if you leave, you will probably still owe rent and re-rental costs until a new tenant moves in or until the lease ends, whichever is sooner. It is important to think about vacancy rates in your area, if your apartment will rent easily or not, and if you will be able to find a place to move to. The landlord has a duty to make all reasonable efforts to re-rent the unit, according to Wis. Stat. 704.29. Also, even if you leave, the landlord may still file in court for the money owed, or file in court to evict you, just to make sure you do not move back in. Avoid this by giving the landlord notice in writing of your move-out date and keep a copy for your records. For more information about moving out and possibly owing rent, see Mitigation.
NOTE: Only a judge can decide you must leave, and only a sheriff may physically remove you. Landlords cannot change your locks, remove your possessions, push you out, turn off your utilities, throw things out in the street, or do any "self-help" eviction without a court order. These are illegal evictions and you can sue the landlord for double damages, plus court costs and reasonable attorney's fees. ATCP 134.09(7)