Landlord Retaliation - Tenant Resource Center

Landlord Retaliation

Note: Was your lease signed or did your concern start before 4/18/18? If so, please see the bottom of this page for law changes that may impact your situation. For quick summaries of the many many law changes, see our Law Changes Page.

 ...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 Been Retaliated Against for Exercising Your Tenant Rights?

The law protects tenants from landlords who would retaliate against them (punish them) for trying to use 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.

Illegal retaliation has three major parts:

1. Did the Tenant Exercise or Try to Exercise a Tenant Right?

The first sign that a landlord's action may be illegal retaliation is when it follows a tenant exercising their tenant rights. The tenant does not need to finish exercising the right (for example, by taking the landlord to court or filing a complaint) -- sometimes they could just have asserted the right or tried to use it (like by asking the landlord to follow the laws).

Tenant rights include many things, for example:

  • 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!

Always Keep a Paper Trail!

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 (for example, about repairs) 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. Whenever a landlord replies to a tenant's complaint, they should always do this in writing to document that they are following the laws.

2. Did The Landlord Commit a Retaliatory Action?

Some things landlords do to retaliate are not illegal, like being rude to their tenants or talking about them to the neighbors. Only the following actions qualify as illegal retaliation, if the situation meets all the other criteria. 

Prohibited Retaliatory Acts Under Wisconsin Statute 704.45

  • Raising the rent
  • Decreasing the services available to the tenant
  • Filing an eviction action in court
    • NOTE: Tenants who are also behind on rent or breaking other rules in the lease cannot use retaliation as a defense, unless the landlord's reason for eviction is itself a form of retaliation (for example, if the tenant refused to pay a retaliatory increase in rent)
  • 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 the Tenant Asserted, Exercised or Tried to Exercise a Tenant Right?

This is the final piece of retaliation. Each regulation has a different level of proof required for the act to be considered illegal:

Proof Needed for violations of 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). This law also 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."

NOTE: ATCP 134.09(5) has a slightly different list of tenant rights and prohibited actions (see above).

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.

Proof Needed for Madison General Ordinances 32.12(4) & 32.15

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, tenants should send a copy of their 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 the tenant called the inspector, police, or other agency, they should get a copy of that report for their records. If the landlord sues to evict them, the tenant can bring the report, any letters, a timeline of the issue, and any other evidence or witnesses, plus copies of the laws, and ask that the eviction be dismissed. Under the new laws, it is extra important to have copies of these laws at the first court date, since the court will only schedule a trial if the tenant raises "valid legal grounds." Wis. Stat. 799(206(3)2017 Wis. Act 317, Sec. 49, Eff. 4/18/18. The tenant may also want to bring any evidence they have to the initial hearing.

4. Bring it to a judge. If the landlord's retaliation has cost you money, 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. As of 3/31/12, if tenants sue in Small Claims Court for violations of chpater 704, they can recieve double any related financial loss. Wis. Stat. 704.95, 2011 Wis. Act 143, Sec. 36 Eff. 3/31/12. 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 Double damages for ATCP 134 have remained the same.

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.

The laws changed in 2011, 2012, 2014, 2015, 2016 and 2018. Many factors can determine which laws apply to your situation, including when the problem occurred, when the lease was signed or renewed, and when an eviction took place. If your lease was signed or problem started before 4/18/18 you will want to carefully review the language of the law to determine if it applies to your situation.

Purple text applies to leases and events as of 12/21/11 (2011 Wis. Act 108) Summary

Orange text applies to leases and events as of 3/31/12 (2011 Wis. Act 143Summary

Green text applies to leases and events as of 3/1/14 (2013 Wis. Act 76Summary WI, Summary Dane Co.

Blue text applies to leases and events as of 11/1/15 (CR 14-038) Summary

Maroon text applies to leases and events as of 3/2/16 (2015 Wis. Act. 176) Summary

Brown text applies to leases and events as of 4/18/18 (2017 Wis. Act 317) Summary

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 request double damages, court costs and reasonable attorney fees when you sue your landlord.

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Landlord Retaliation
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