"Constructive eviction" is a defense used in court, when:

• a rental unit becomes unlivable, and
• the tenants have moved out because of the issues which caused the unit to become unlivable, and
• the landlord ends up suing the tenants for back-owed rent

Constructive eviction eviction is not: 

• A defense that can be used if the problem was a result of a tenant’s “actions or inactions” 
• The same as rent abatement 
• Something a tenant can claim if they are still living in the unit

← Back to Repairs.

So, there's been a lot of water around Wisconsin lately. And, as they say, when it rains, it floods. (Or something like that). Flooding is technically a repair issue, so for more information on the overarching laws about repairs, see our repairs page for Wisconsin, or for Madison & Fitchburg.

We've been flooded with calls about this issue (pun totally intended), and we have answers to some of the most frequently asked questions. 

This page contains a collection of information on your rights regarding apartment safety in Wisconsin. Looking for something specific? Use the guide below to navigate to topics found on this page and throughout our website.

Practical Safety Tips

• Check Out the Area Before You Rent: Call your police department to inquire about the area. Some police departments are more or less able or willing to share information. If possible, walk around and talk with current residents about any safety concerns they have and their relationship with the local officers. MADISON ONLY:  Call the City of Madison Police Department's non-emergency number at (608) 255-2345 and ask to speak with the area's neighborhood police officer or community police officer, if there is one.
• Window Locks and Ventilation Locks: Always lock your windows. All first floor windows or windows accessible by a platform or fire escape are required to have both regular locks (which do not allow the window to open at all) and ventilation locks (which allow the window to open a few inches for ventilation but not wide enough to allow entry). These locks, when installed and used properly, will not allow entry without breaking glass. If locks are missing or don't work, request repairs. If the landlord won't make them, do not hesitate to call City of Madison Building Inspection at (608) 266-4551 or do an internet search for an inspector in your area (our list of statewide building inspectors is on the Repairs in Wisconsin page).
• Door Locks, Door Chains, and Dead Bolts: Always lock your dead bolt when you leave and when you're home. The dead bolt should be at least an inch long. Do not prop open the door to your apartment or apartment building.
• Security Locked (Controlled Access) Entrances: Controlled access buildings are only secure if the common doors remain closed and locked when not in use. Do not prop them open or give out the code to the keypad. You could compromise the safety of the whole building.
• Sliding Door Locks & Secondary Security Devices: Unsecured sliding doors are a common target for unauthorized entry. Be sure your patio door locks securely when closed. A secondary locking device such as a stick can be placed in the sliding track to prevent the door from opening and can allow for a small opening to let in fresh air, while remaining safe.
• Window Coverings: Keep your curtains or blinds closed if you are away from home for an extended period of time. Do not assume that the window coverings are included with the apartment. If window coverings are not provided, ask the landlord if they will provide them.
• Door Viewer: Always use your door viewer before you open your door for someone. If the door viewer is broken or not provided, notify the landlord immediately.
• Common Area Lighting: Be sure common areas have adequate lighting. If bulbs are burned out or if lights on an automatic timer are not turning on when it is dark, notify the landlord right away.
• Key Use Policy: Never label your keys or key chain with your house or unit number. If you lose your keys, your residence will be at risk. If you need extra sets of keys, ask the landlord. You may be required to pay a small deposit for extra keys. If the locks were not re-keyed before you moved in, you may ask the landlord to do so. You may have to pay this expense yourself, however, as the landlord is not obligated to change the locks between tenants except in special circumstances.

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Smoke Detectors

Landlord Responsibility:

State law requires the owner or manager of a unit to provide a working smoke detector on each floor including the basement. Wis. Stat. 101.145(4). If a tenant gives written notice to the owner or manager that the smoke detector is not functional, the landlord must take action within five days to make the smoke detector functional. Wis. Stat. 101.145(3)(c).

Tenant Responsibility:

The tenant must maintain the smoke detector (e.g. by providing batteries) and give written notice if it is not working properly. Wis. Stat. 101.145(4), Wis. Stat. 101.145(3)(c)

MADISON ONLY: All residential rental properties within the City of Madison shall have smoke alarms in place which are either a hardwired smoke alarm with a battery backup or a smoke alarm powered by a non-replaceable, non-removable battery capable of powering the smoke alarm for a minimum of ten years. Such smoke alarms must be installed in the following areas:

• In each bedroom;
• In each sleeping area;
• Within six feet of each door leading to a bedroom or sleeping area of each unit; and,
• On each floor of the building.

Carbon Monoxide Detectors

Wisconsin law requires carbon monoxide detectors to be installed and maintained in all new and most existing residential buildings. Wis. Stat. 101.149. Local building and fire inspectors are authorized to inspect for these detectors at the same time as they would inspect for smoke detectors. The Madison Fire Department maintains information about what is required. See the Wisconsin Department of Safety and Professional Services website for more information on carbon monoxide and smoke alarms. 2007 Wis. Act 205, 2009 Wis. Act 158

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Required Landlord Disclosures

Before renting, the landlord must tell the tenant about uncorrected building code violations affecting leased areas or common areas that they have actual knowledge of and which present a significant threat to the prospective tenant's health or safety. (For more information, see Preparing to Rent.) Wis. Stat. 704.07(2)(bm), 2011 Wis. Act 143, Sec. 16 & 17. Eff. 3/31/12. ATCP 134.04(2)(a), CR 14-038, Sec. 3. Eff. 11/1/15.

Landlords must also tell prospective tenants about any "conditions affecting habitability" which they know about, or could know about based on a reasonable inspection, whether or not there is a report from building inspection. These conditions include:

• Lack of hot or cold running water;
• Heating system that can't reach 67 degrees Fahrenheit all year round;
• No electricity, plumbing, or sewage systems (or systems that are unsafe or not in good operating condition);
• Any structural or other conditions that could be a health and safety risk. ATCP 134.04(2)(b)

E-mail or Text Communication for Promises to Repair

If it is written into the lease, the landlord can “provide and indicate agreement” by other electronic communication (email, text, fax) for any promises to clean, repair or improve the premises prior to entering into the rental agreement. Stat. 704.10(3), 2017 Wis. Act 317, Sec. 42. Eff. for rental agreements made or renewed on or after 4/18/18. 2017 Wis. Act 317, Sec. 56.

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Repair Action Steps for Tenants

1. Fill out Check-In Form

Note needed repairs on your check-in form. For more information on the move-in process, see our pages on About Security Deposits and Preparing to Rent. Additionally, inspect your apartment for the following safety features:

• Security-locked entrances to common areas
• Dead bolts/sliding door locks and window locks
• Lighting in common areas
• Door viewer
• Smoke detectors and carbon monoxide detectors

2. Contact the Landlord to Request Repairs

Even if you listed security repairs on your check-in form, put repair requests in writing to your landlord, reminding them that it is a safety issue. Date the request and keep a copy of it for your own records. Many landlords do not use the check-in sheet as a notification of needed repairs. Instead, they promptly file the check-in sheet and don't look at it until the end of the tenancy. For additional information, see Repairs in Madison and Fitchburg or Repairs in Wisconsin.

3. Document Needed Repairs

Document the security repairs that are needed by taking pictures and keeping a log of actions you take, like contacting the landlord and calling Building Inspection. Make sure the log includes the date and time you called, the person you talked to, and a brief summary of what you talked about including the requests or promises made to complete the repair.

4. Call Building Inspection

In most instances, the security measures listed in this brochure are required by the City of Madison building code. Other areas of the state likely have similar codes if there is a Building Inspector. If your landlord does not respond to your repair requests, notify Building Inspection. City of Madison: 608-266-4551.

5. Changing the Locks in an Emergency

Tenants in Wisconsin can ask the landlord to change their locks and they are required to do so under the Safe Housing Act. (See next section.)

Madison ONLY: In an emergency, where the rental premises or the health and safety of the tenant are at risk, the tenant may change or re-key the locks without prior permission of the landlord. This is the only situation where a tenant may do this. The tenant needs to give the landlord a key within 48 hours or as soon as possible, and the landlord has the right to replace the altered lock. The landlord does not need to reimburse the tenant for the cost of changing the locks. MGO 32.05(2)

Safe Housing Act

The Safe Housing Act says that under certain circumstances, a tenant may terminate their lease or have the landlord terminate another tenant's lease if there is an imminent threat to their safety. They can request the landlord change their locks and the landlord must do so if the tenant has proper documentation. The law allows victims of domestic violence, sexual assault, stalking, or child abuse to terminate a tenancy if they or their child(ren) are 1) in imminent physical danger AND 2) have an accepted form of documentation of the threat. These include a permanent injunction (restraining order), criminal complaint, or condition of release from prison or jail prohibiting contact with the tenant or their child(ren).

This law allows the victim to give written notice ending a year-long tenancy as though it were a month-to-month tenancy (written 28-day notice). For more information see Ending Your Lease. The law also allows landlords to evict the tenant who is named in the injunction or court order as the person committing the abuse, assault, or stalking. This law is very detailed about the types of circumstances that allow a tenancy to be terminated, so please refer directly to the law for more information, and seek legal assistance if necessary. Wis. Stat. 704.16, 2007 Wis. Act 184

In Dane County: Domestic Abuse Intervention Services (DAIS) can provide counseling and free legal advocacy for tenants in Dane County who are the victim of domestic or child abuse, sexual assault, or stalking. DAIS can assist tenants in obtaining the necessary injunctions to terminate their leases, and assist with the termination itself. They also provide other support, resources, and safety counseling. In Dane County call 608-251-4445; or 800-747-4045

Outside Dane County: Contact your local domestic abuse agency.

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Calling Police: Lease Provisions May Void Your Lease Agreement

In some neighborhoods landlords are under pressure from the police and neighbors to cut down on police calls. Landlords may be threatened with violations of the Chronic Nuisance Ordinance if there are too many police calls. This has caused many landlords to put potentially illegal clauses in their leases. MGO 25.09, Wis. Stat. 704.44. ATCP violation effective 11/1/15. ATCP 134.08

Wisconsin law says that a rental agreement is "void and unenforceable" if it allows a landlord to increase rent, decrease services, bring an action for eviction, refuse to renew, or to threaten any of these actions because a tenant has contacted law enforcement or emergency services for their safety. Wis. Stat. 704.44. ATCP violation effective 11/1/15. ATCP 134.08

There have been several changes to the law about what language in a lease would make it illegal. The entire lease could be void and unenforceable if these clauses were in the lease. The  following language may make the lease void and unenforceable:

• Language that would allow the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime, as defined in Wis. Stat. 950.02(4). Wis. Stat. 704.44(9), 2013 Wis. Act 76, Sec. 25. Effective for leases entered into or renewed on or after 3/1/14. ATCP violation effective 11/1/15. ATCP 134.08 (9)
• Language that would allowthe landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the Notice of Domestic Abuse Protections required under Wis Stat. 704.14. Wis. Stat. 704.44(10), 2013 Wis. Act 76, Sec. 26. Effective for leases entered into or renewed on or after 3/1/14. ATCP violation effective 11/1/15. ATCP 134.08(10)

ATCP 134.08 adds the followingf to the list of "prohibited provisions"  which make the entire rental agreement void and unenforceable" (if the tenant so chooses). These rules are also still unenforceable, if the tenant wants to stay in the contract.

• Lease provisions which allow retaliatory acts due to calls for law enforcement, health or safety services. ATCP 134.08(1),
• Lease provisions which allow a landlord to evict a victim of a crime, because of that crime. ATCP 134.08(9), and
• Leases which have rules against crime that do not include a notice of domestic violence protections. ATCP 134.08(10), CR 14-038, Sec. 11. Eff. 11/1/15.

Furthermore:

The following language must be provided in every lease or in an addendum to the lease entered into or renewed after 3/1/14: Wis. Stat. 704.14, 2013 Wis. Act 76, Sec. 14

"NOTICE OF DOMESTIC ABUSE PROTECTIONS

(1) As provided in section of 106.50(5m)(dm) of the Wisconsin statutes, a tenant has a defense to an eviction action if the tenant can prove that the landlord knew, or should have known, the tenant is a victim of domestic abuse, sexual assault, or stalking and that the eviction action is based on conduct related to domestic abuse, sexual assault, or stalking committed by either of the following:

(a) A person who was not the tenant's invited guest.

(b) A person who was the tenant's invited guest, but the tenant has done either of the following:

• Sought an injunction barring the person from the premises.
• Provided a written statement to the landlord stating that the person will no longer be an invited guest of the tenant and the tenant has not subsequently invited the person to be the tenant's guest.

(2) A tenant who is a victim of domestic abuse, sexual assault, or stalking may have the right to terminate the rental agreement in certain limited situations, as provided in section 704.16 of the Wisconsin statutes. If the tenant has safety concerns, the tenant should contact a local victim service provider or law enforcement agency.

(3) A tenant is advised that this notice is only a summary of the tenant's rights and the specific language of the statutes governs in all instances."

Tenants should not be afraid of being evicted for calling the police or emergency services for their own protection or because there is criminal activity in the building or on the property.

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New Risk of Eviction for Suspected "Drug-Related" and Other Criminal Activity

As of 3/2/16, landlords can serve a 5-day eviction notice that does not give the tenant a chance to fix or "cure" the problem if they suspect that the tenant, a member of their household, or any guests or invitees, have engaged in:

• Criminal activity that threatens the health or safety of other tenants, people residing in the “immediate vicinity” of the premises, or the landlord or their agent or employee;
• Criminal activity that threatens the right to peaceful enjoyment of other tenants or people residing in the “immediate vicinity” of the premises; or
• “Drug-related criminal activity” on or near the premises. Wis. Stat. 704.17(3m)(b), 2015 Wis. Act 176, Section 25

“Drug-related criminal activity” is the manufacturing or distribution of a controlled substance that is not prescribed by a doctor for medical use by a disabled person. The disabled person can manufacture, use or possess this controlled substance and it can be in the possession of their personal care giver or worker. Wis. Stat. 704.17(3m)(a)1. & 2., 2015 Wis. Act 176, Section 25

The 5-day no cure notice must:

• • Require the tenant to vacate on or before a date at least 5 days after the giving of the notice,
  • State the reason for eviction,
  • Include:
    • A description of the criminal activity or “drug-related criminal activity”,
    • The date it took place, 
    • The identity or description of the individual(s) who engaged in the activity,
    • Advise tenant she/he may seek assistance of legal counsel, a volunteer legal clinic, or “a tenant resource center”, and
    • State that the tenant has the right to contest the allegations in the notice before a court commissioner or judge if an eviction is filed. Wis. Stat. 704.17(3m)(b)1., 2015 Wis. Act 176, Section 25

If the tenant contests the eviction, the tenancy may not be terminated without proof by the landlord by the greater preponderance of the credible evidence of the allegations. Wis. Stat. 704.17(3m)(b)1., 2015 Wis. Act 176, Section 25 

The person engaging in the alleged criminal activity or “drug-related criminal activity” does not have to have been arrested or convicted for this activity in order for the landlord to issue a 5-day no-cure notice for a crime. Wis. Stat. 704.17(3m)(b)2., 2015 Wis. Act 176, Section 25

It clarifies that month-to-month tenancies and tenancies-at-will can be terminated, before the end of the rental period, for criminal or “drug-related criminal activity.”  Wis. Stat. 704.19(2)(b)2., 2015 Wis. Act 176, Section 28

This process cannot be used against the person who was the victim of the crime. Wis. Stat. 704.17(3m)(c), 2015 Wis. Act 176, Section 25

For important information about these notices, please see our page on Eviction!

If leases contain processes that conflict with this law, the lease provisions are invalid unless it is a lease longer than a year. Wis. Stat. 704.17(5)(a) & (b), 2015 Wis. Act 176, Section 26 & 27

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Landlord Entry

Notice Required for Landlord Entry

Wisconsin landlords cannot enter an apartment unless they give at least a 12-hour notice to the tenant, and it must be to make repairs, inspect, or show the unit for rental or sale. Notice may be verbal (including leaving a message) or in writing. There is no requirement that the tenant actually receive that notice (for example, during an extended absence). ATCP 134.09(2). In an emergency, or if the tenant waives the notice requirement on a case-by-case basis, the 12-hour notice is not required. Suspected lease violations, such as a party or an unauthorized pet, are NOT reasons to enter without notice. See Landlord Entry for more information. Wis. Stat. 66.0104(2)(d)1, 2013 Wis. Act 76, Sec. 2. Eff. 3/01/2014.

If it is written into the lease, the landlord can “provide and indicate agreement” by other electronic communication (email, text, fax) for any notice to enter to repair, inspect, or show the unit. Wis. Stat. 704.10(4), 2017 Wis. Act 317, Sec. 42. Eff. for rental agreements made or renewed on or after 4/18/18. 2017 Wis. Act 317, Sec. 56.

Action Steps for Illegal Landlord Entry

If your landlord is entering without notice, at unreasonable times, or for an inappropriate purpose, notify the landlord in writing that you request proper notification before entry. If the person entering without notice is a resident manager or an off-site manager, but not the owner, send a copy of the letter to the person's supervisor or the actual owner of the property.

If unauthorized entry continues and makes you feel unsafe, call the police to file a report. In Madison, the police can issue a $600 fine for the first offense for unauthorized entry, and $1000 for the second, if you call and cite MGO 32.05(1)(e) & 1.08(3)(a) and let them know that the police have "bail deposit authority."

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Useful Phone Numbers

Do you still have more questions about Apartment Safety? If you can't find the answers you are looking for on our website, you may want to speak with a Housing Counselor or other staff at Tenant Resource Center. See our hours and locations here!

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This page contains everything you need to know about Ending Your Lease in Wisconsin. Looking for something in particular? Use the links below to navigate to specific information found on this page and elsewhere on our website.

The Types of Tenancies

Before you start considering your options to end your lease, you should know what kind of tenancy you have. All rental agreements can be sorted according to their rental durations.

Term Tenancies (e.g. 1 Year Lease)

The most commonly-offered type of rental agreement in Dane County is the term lease. Term leases are those which have specified start and end dates and recurring rental periods for which rent is to be paid on a regular schedule. You’ll know you’re looking at a term lease if it says the day the lease starts, the day the lease ends, and the day rent is due for each rental period. 

Usually term leases run for one year (though it’s totally ok for term leases to extend for only a few months or even a few years) and rent is to be paid within the first 3 to 5 days or so of the start of the month. Do note that the start of the month is not necessarily the 1st, even though that’s fairly standard practice. Also, the rental period doesn’t even have to be monthly. For example, a lease could say that rent payments are due once every other month, for example.

Periodic Tenancies (e.g. Month-to-Month Lease)

Periodic leases do not have a specific end date but they do have recurring rental periods. The type of periodic tenancy - i.e. month-to-month, week-to-week, etc. - is determined by the intent of parties, which is generally (though not always) the interval between rent payments. So, if you pay at the start of a monthly period, that’s a month-to-month periodic tenancy. If you pay at the start of a weekly period, that’s a week-to-week. So on and so forth.

Tenancies-at-Will

The last kind of rental agreement is a tenancy-at-will. Basically, the tenancy-at-will continues the progression seen from the term to the periodic tenancy; a tenancy-at-will has neither a specific end date nor a recurring rental period. A tenancy-at-will is characterized by some sort of agreement in which the tenant agrees to give to the landlord something (usually other than money) in exchange for housing. For example, the tenant-at-will might agree to periodically perform groundwork for the landlord.

One quick point on work: If you receive housing as part of your job, then you are not a tenant (and therefore not entitled to the rights of a tenant). Any person who receives housing as part of an employment contract is not considered a tenant under Wisconsin State Law (Wis. Stat. 704.01(5)).

So, the kind of tenancy you have will (1) determine how your lease normally ends and (2) impact the various ways your lease can end early. If you’re feeling unsure about what kind of tenancy you have, TRC has a page designed to help you here.

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Standard Endings for Tenancies

If you have a term tenancy, the tenancy ends at the date and time specified in the lease. This doesn’t change if you sign a lease renewal or extension. That first lease still ends on the stated day. What happens is that the second tenancy kicks in when the first expires.

Things get a little trickier when it comes to periodic and term tenancies. Remember these kinds of tenancies do not have definite end dates. So, to end a periodic tenancy, either the landlord or tenant has to give 28 days notice in writing to end the tenancy. Note that 28 days is the minimum. In some cases a landlord or tenant may opt for a longer notice; and, in other cases, the rental agreement may require longer notices, such as 60 days. (TRC has a post on how to count days in a notice here.)

Periodic tenancies must also end on the last day of the rental period. Since most periodic tenancies are month-to-month (and start on the first day of the month), the last day of the rental period is then usually the last day of the month. If rent is due on the 15th, then the last day in a period would be the 14th. Applying this condition to rental periods longer than one month is pretty clear. But, let’s say you have a week-to-week tenancy that runs Monday through Friday. What then? Well, both the landlord and tenant are still required to give at least 28 days notice. So, if the landlord decides to give the tenant a notice of non-renewal on the first day of the month, the tenancy would end on the Sunday after 28 days had elapsed.

Ending tenancies-at-will does not require terminating them on the last day of their rental period. (Remember tenancies-at-will don’t have those to begin with!) The tenancy-at-will can be ended on any day as long as sufficient notice is given. (Click here for TRC’s post devoted entirely to notices when ending a tenancy.)

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Ending the Lease Early

The ways to end a lease early can be divided into two categories: ways to end the lease when some special circumstances exist and ways to end the lease when special conditions do not exist. We’ll start with the latter.

Ending the Lease: No Special Circumstances Exist

Mutual Agreement to Terminate

The landlord and tenant(s) may mutually agree to end a tenancy at any time without further responsibility by either party. Landlords and tenants might decide to pursue this course for any number of reasons. Maybe the landlord wants to renovate the space and offers to move the tenant into another newly-renovated unit without increasing the rent. Maybe the tenants are experiencing severe disputes and the landlord thinks letting the tenants out of the lease will be easier than working to resolve the issue. Maybe the landlord and the tenant just don’t want a rental agreement anymore.

Whatever the reason, if you and either your landlord or tenant are thinking of mutually terminating the rental agreement, make sure to get it in writing. Also, if there are more than two parties to the lease, make sure to get consent for termination from every party, otherwise the termination does not go into effect. If your landlord asks for payment, you cannot be required to pay more than the landlord's actual and reasonable costs (including lost rent and advertising costs, but not compensation for time spent re-renting the apartment) incurred as a result of the early termination. That said, you may choose to pay more as a way to convince the landlord. TRC has sample mutual termination forms here. You might also consider reviewing TRC’s posts on negotiation and getting things in writing.

Breaking the Lease

All tenants may break their leases, even if the landlord says that subletting is the only option. If you want to break your lease, write a letter to your landlord (and be sure to keep a copy for yourself!) in which you state that you are breaking your lease and when you are doing so. Also, similar to how mutually terminating a lease works, all tenants on the lease must break at the same time. If one tenant refuses to break the lease, then the lease remains in effect. If, for whatever reason, tenants break the lease in phases, then the lease is not broken until the last tenant vacates the unit.

For a more in-depth look at breaking lease, please see here.

Mitigation

Once a tenant breaks their lease, the landlord is required to mitigate damages (Wis. Stat. 704.29). The landlord must make “reasonable efforts” to re-rent the unit as if it had been vacated at the standard end of the tenancy. “Reasonable” efforts are basically those actions that the landlord took to rent the unit in the first place (Wis. Stat. 704.29(2)(a)). So, if the tenant found out about the unit on Craigslist, presumably it would be reasonable for the landlord to post it again after the tenant had vacated it. And, if some prospective tenants express interest in the unit, the landlord cannot try to steer those tenants away. This prohibition does NOT mean that the landlord has to rent out the unit first however (Wis. Stat. 704.29(2)(b)).

If you (as a tenant) think your landlord is making reasonable efforts to mitigate, then you may decide to pay the landlord whatever damages they claim they experienced as a consequence of you vacating early. If you think your landlord is not making reasonable efforts to re-rent the unit, then you may decide not to pay the damages the landlord claims. In response, the landlord may try to recover the money in Small Claims Court. If you sense that things may be headed in this direction, compile whatever evidence on your landlord’s efforts to re-rent you can. For instance, you can pull screens from Craigslist or other similar sites showing that the landlord had yet to post a listing by such-and-such date. You can also drive by to see if the unit is being renovated or otherwise used by the landlord. If so, take a few pictures if possible. (It sounds creepy, but it might save you some money in the long run!) Also, if you find out the price of the unit is going up or that the new lease will come with additional provisions (like forbidding pets or requiring that the tenant now perform yard work), try to grab proof. Significantly altering the rental terms in a way that makes the unit more difficult to rent or makes it less desirable to potential tenants can be a failure to properly mitigate damages.

You could even try to re-rent the apartment yourself, especially if you think the landlord will not try to do so. You can then place ads for the unit, show it to prospective tenants, and even hand out applications (assuming the landlord gives them to you). If the landlord refuses to sign a new lease with similarly qualified potential tenants, remind the landlord that it is their duty to mitigate and that it may be evidence that they are not mitigating if they don't sign the lease.

The upshot of all of this is that, in order for the landlord to recover through Small Claims any damages they incurred as a result of you breaking your lease, the landlord has to show that they made reasonable efforts to re-rent the unit as soon as possible. This is where your compiled evidence comes in: If you can prove that the landlord’s efforts were not reasonable, you may be able to convince a judge that you don’t owe the landlord any money (Wis. Stat. 704.29(3)). 

To summarize: You can break your lease. If and when you do break your lease, you are still (potentially!) on the hook for any damages the landlord incurs as a result of you vacating early. And you are on that hook until the landlord re-rents the unit or lease expires (whichever comes sooner). However, in order to recover through Small Claims Court any damages the landlord incurs, the landlord must be able to show that they properly mitigated those damages. 

Subletting

Subletting actually does not end a tenant’s lease.  Instead, the tenant is effectively putting out a lease on their lease. So, since subletting does not end the lease, we won’t spend too much time on it.  If you’re looking for all you need to know about subletting, please check out TRC’s post on subletting here.

If you check your current (or prospective) lease, you may find that it contains a provision saying that you are prohibited from breaking lease. Alternatively, it may say something to the effect that you must sublet if you would like to vacate the unit early. TRC believes any rental provision which states only subletting is allowed is unenforceable (as it arguably “purport[s] to waive the landlord’s obligation to mitigate damages” (Wis. Stat. 704.44(3m), 2011 Wis. Act 143, Sec. 28). So, since the provision is unenforceable, you can still (according to us!) break your lease. But, now seems like a good time for the reminder: We at TRC are not lawyers and the information contained here and elsewhere on TRC’s site should not be used or construed as legal advice. If you have a rental provision saying that only subletting is allowed and you would like to break your lease, please consult a lawyer to get their take.

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Ending the Lease: Special Circumstances Exist

These are more unique cases in which a tenant can get out of their lease with no further obligations to their landlord.

Clauses which Make the Lease Void and Unenforceable

State law and consumer protections have articulated 10 rental provisions such that, if they are included in a lease, make that lease unenforceable (i.e. the state or other regulatory power does not have interest in ensuring that the terms of the lease are fulfilled). A lease being void and unenforceable is a one-way street: The tenant may quit the lease without any consequences, but the landlord cannot terminate the tenancy without the tenant’s consent. Also, it is not necessary for a landlord to have acted (or have tried to act) on an unenforceable rental provision. The provision’s mere presence in the lease makes it unenforceable on its own.

Here are the 10 prohibited rental agreement provisions:

• Allowing a landlord to increase rent, decrease services, bring an action for eviction, refuse to renew, or to threaten any of these actions because a tenant has contacted law enforcement or emergency services for their safety (ATCP 134.08(1).
• Evicting in any other way besides by state law (ATCP 134.08(2)).
• Speeding up rent payments for breaking a rule in the lease or otherwise waiving the landlord’s obligation to mitigate damages (ATCP 134.08(3)). (We’ve seen this one before! It’s part of the foundation for TRC’s position that tenants can break lease.)
• Requiring the tenant to pay the landlord's attorney's fees or costs for any court action related to the rental agreement (ATCP 134.08(4)). NOTE: This does not prevent a landlord (or tenant) from recovering court costs ordered by the court.
• Allowing the landlord to "confess judgment" or speak for you in court about any action or inaction related to the rental agreement (ATCP 134.08(5)). 
• Excusing the landlord for liability for property damage or personal injury due to negligent acts or omissions by the landlord (ATCP 134.08(6)).
• Imposing liability on the tenant for personal injury arising from causes beyond their control, property damage caused by natural disasters, or by persons other than the tenant or their guests (ATCP 134.08(7)).
• Waiving responsibility for the landlord to provide premises in habitable condition or maintain the property (ATCP 134.08(8)).
• Allowing the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property, if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime, as defined in Wis. Stat. 950.02(4) (ATCP 134.08(9)).
• Allowing the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the notice required under Wis. Stat. 704.14 (ATCP 134.08(10)).

Constructive Eviction

If your rental unit becomes unlivable and the landlord cannot make the repairs right away (if at all), then you can choose to move out. If you do decide to move, then you can’t be held liable for rent (or other charges) after the time at which the unit becomes uninhabitable (Wis. Stat. 704.07(4)).

Now, there are a lot of nuances at play when it comes to constructive eviction and TRC has a more expansive post on the topic available here. It is important to repeat here that constructive eviction is a defense the tenant uses in court. So, up to a point, constructive eviction works similarly to breaking lease: The tenant decides to vacate the unit early and lets their landlord know when they are doing so. At that time, the tenant stops making rent and related payments. Where constructive eviction departs from breaking lease is that, if the landlord decides to try to recover any money via a Small Claims Court, the tenant then claims that they do not owe the landlord money because the unit was uninhabitable (as opposed to claiming that the landlord failed to properly mitigate).

Servicemembers' Civil Relief Act

The Servicemembers' Civil Relief Act allows a tenant to end their lease if either (1) they enter military service or (2) if they receive orders to either change station or deploy for 90 days or more. This even applies to situations where the service member has dependents living in the unit or on the lease. For example, if a service member is set to leave behind a partner when they deploy, the partner can also quit the unit without further obligation to the landlord (assuming these protections are sought). Tenants must give written 30 days' notice and a copy of the military orders to the landlord in order to use this act.

The Safe Housing Act

The Safe Housing Act allows victims of domestic violence, sexual assault, stalking, and child abuse to terminate a lease if they feel remaining on the premises puts them at imminent risk of physical harm. There are rules similar to those in the Servicemembers' Civil Relief Act: To end a lease under these laws, tenants with a term lease must write a letter to the landlord saying that they wish to end their lease under Wis. Stat. 704.16 because they and/or their child(ren) face an imminent threat of physical harm. (Note: If you have a periodic lease, you may give notice to terminate your lease for no reason at all. See the above section ‘Periodic Tenancies’ for information on how to end your lease). When giving this notice to their landlord, tenants are to provide a certified copy of at least one piece of accepted documentation. Accepted documentation includes restraining orders, conditions of release, and criminal complaints. Under these limited circumstances, the lease would end as if giving a termination notice for a month-to-month tenancy (Wis. Stat. 704.16, Wis. Stat. 704.16(1)(b)).

If you need help getting accepted documentation, contact End Domestic Abuse WI, Wisconsin Coalition Against Sexual Assault, or a local Victim Witness Program.

The Tenant Has Died

In the event a tenant dies, their lease is terminated either 60 days after the landlord learns of the tenant’s death or when the lease expires, whichever is sooner (Wis. Stat. 704.165). There is a qualification: The lease continues if the deceased has any surviving co-tenants, such as a spouse or roommate. But, in those instances in which the deceased is the only tenant named on the lease, the deceased’s estate is liable for paying rent and related charges for those 60 days (at most). However, if the unit is surrendered by the estate prior to the completion of the 60 days, then the landlord would have to mitigate damages in the same manner as if the lease had been broken.

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Relevant Sample Letters

Ending a Rental Agreement

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Looking for additional sample letters? Check out our page here!

Do you still have more questions about Ending Your Lease? If you can't find the answers you are looking for on our website, you may want to speak with a Housing Counselor or other staff at Tenant Resource Center. See our hours and locations here!

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