“...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"
Has Your Landlord Retaliated Against You for Exercising Your Tenant Rights?
Have you ever had someone treat you badly after you told them something they didn’t want to hear, or after you reported them to an authority (such as their manager) for doing something wrong? This is a form of punishment called “retaliation.” While it may seem obvious to you when you are being retaliated against, it can be difficult to prove.
No one is perfect, and most people don’t enjoy being told when they’re doing something wrong, or that they’re not doing something they’re supposed to do. Even so, most landlords are reasonable professionals who are willing to do their part to solve problems identified by their tenants.
But sometimes, a landlord will refuse to have a conversation with their tenant, or break promises they’ve made (such as making repairs, or preventing dangerous activity on their property). Other times, a landlord may simply be confused about what their responsibilities are under the law. In these situations, a tenant may have to clearly point out their rights to their landlord, or even report their landlord to a higher authority (such as their local Building Inspector).
Unfortunately, it is not uncommon for landlords to retaliate against tenants who point out their rights, or who involve the authorities when they need help.
The law protects tenants from landlords who retaliate against 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 no matter which tenant rights are recognized by law, tenants must be free from fear of retaliation if their rights are to mean anything in the real world.
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 happens after a tenant exercises 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 the tenant could have simply asserted the right or tried to use it (for example, by asking the landlord to follow the laws).
Tenant rights include many things:
- 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 lawsuit against their building’s management
- Having a guest under reasonable circumstances, due to the tenant's right to "exclusive possession of the premises" and freedom from total restrictions on 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 simply 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 as soon as possible, and keep that copy for themselves. Whenever a landlord replies to a tenant's complaint, they should always do this in writing to document that they are following the law.
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
- 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 (this is illegal, even if not retaliatory, see Eviction for more information)
An additional retaliatory act prohibited in only the City of Madison 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, as well as different penalties if a landlord is found to have illegally retaliated against a tenant:
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 acting (such as filing for eviction), the retaliation is still illegal if the landlord would not have retaliated except that the tenant exercised their rights.
Wis. Stat. 704.45 protects tenants who have actually exercised a right (for example, reporting their landlord to the building inspector), and faced illegal retaliation as a result. It does not apply to tenants who assert their rights to their landlord, but who take no further action. It also 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.
If a landlord’s illegal retaliation under chapter 704 costs you money, you can sue them in Small Claims Court to recover the money you lost.
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."
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 under the Consumer Protection regulations, but the burden of proof is put on the landlord, meaning a landlord has to show they weren't retaliating, or the tenant will win.
If the matter goes to court, 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 a rent credit or return a security deposit).
Responding to Landlord Retaliation
Tenants who believe they are being retaliated against should do the following:
- Document what is going on. Tenants should write a letter to the landlord that documents that the act is retaliatory. 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 Wisconsin 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."
- 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.
- Gather evidence. If the act(s) occurred after the tenant called the inspector, police, or other agency, the tenant 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, Effective 4/18/18. The tenant may also want to bring any evidence they have to the initial hearing.
- 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.
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, the tenant 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.