PLEASE NOTE: A Memo from the Dept. of Housing and Urban Development (4/4/16) says denying applicants due to criminal history may be discrimination (more information here). Landlords should exercise caution pending enforcement of new rules (here is some information for landlords about this memo). Tenants who are denied may be able to file discrimination complaints in the future (here is some information for tenants about this memo).

Housing Options

Short-Term Housing After Incarceration

• Halfway Houses. If you are looking for housing immediately upon your release from prison or jail, you may qualify for a halfway house or other short-term housing programs, such as ARC Community Services (for women). These programs require a referral from a probation or parole officer, or a social worker.
• Subletting. Another option for quick, short-term housing is to sublet. You are on a lease and have all the protections of a tenant, you're just replacing one tenant who moved out early. Sometimes the tenant(s) can sublet directly to you without the landlord's permission, if they have a term lease that doesn't prohibit subletting. Even when the landlord has to give approval, they are sometimes more flexible with subletters. Look for listings on Craigslist.
• Motels/Hotels/Hostels. This may be an option for short-term housing. If you stay in a motel and have no other permanent residence, you are a tenant under the law. Wis. Stat. 704.01(1), ATCP 134.01(4) & 134.02(12). Some probation/parole officers don't allow this practice, but if you're staying in one it is very important to keep good documentation of having paid for your room. This proves you are a tenant in case the landlord does not respect your rights.
• Staying with Friends or Family/Tenant-at-Will. Many people live with friends or family after a criminal conviction. If you pay money for household costs, even if you don’t have a signed lease you are legally a “tenant at will.” If you pay on a regular schedule (i.e. weekly or monthly), you are a "periodic tenant." Wis. Stat. 704.01(5). Your rights will depend on whether the person you pay is the owner or a tenant. If the person you pay is a tenant, make sure you are not violating a guest policy or other provision in their lease or the landlord could make you move out. If the person you pay owns the unit, or if they are a tenant who wants you to move, they must serve you a written, 28-day “non-renewal” notice as though you were a month-to-month tenant. Wis. Stat. 704.19. If you don’t move out they must take you to court in order to evict you. For more information, see Eviction.

Long-Term Housing After Incarceration

• Renting from Large Management Companies. Larger management companies often have policies against renting to people with a criminal conviction or arrest record. There may be exceptions if you have a co-signer, if you have been off paper (completed a parole or probation obligation) for a certain amount of time, or if you were not convicted of a violent or drug-related crime. You can usually find their applications on their websites, and see what kinds of questions they ask. Enclose a letter with your application (see below for more information).
• Renting from Smaller, Private Landlords. People with criminal backgrounds often have more luck renting from small landlords, who might only own a few properties and thus have a more personal relationship to their tenants. This makes it easier to put a face to your story, and ask them to look past your record and see you as a person. You can often find their listings on Craigslist, which is free for everyone to use, or on "For Rent" signs in a neighborhood you want to live in. Enclose a letter with your application (see below for more information).
• Finding "Flexible" Landlords. Your local re-entry programs (such as Circles of Support) might have tips on local landlords who rent to people with criminal convictions. These groups can provide very helpful advice in other areas as well. Enclose a letter with your application (see below for more information).
• Public & Affordable Housing. Many affordable housing programs (such as Section 8, public housing or Section 42 housing projects) will deny applications based on criminal background. Applicants can request an appeal. For more information, contact your local housing authority or WHEDA (Section 42). 

Applying for An Apartment with a Private Landlord

What The Landlord Will Search For

When reviewing an application, most landlords will run a criminal background check using a free website called CCAP (Consolidated Court Automation Program) where they can see all criminal charges filed in Wisconsin against the prospective tenant, including sentences and other details. CCAP records also show evictions, charges, small claims court cases, traffic violations, and more. The landlords will use the basic information they are allowed to ask for on an application to search for you on CCAP: your full name and date of birth. 

To avoid confusion with people who share your first and last name, include your middle initial on the application. This may help to prevent associating your name with the criminal actions of other individuals with familiar names.

If you have a parole or probation officer, or you’re following other court orders (for example, drug court), tell the landlord when you apply. Some landlords are more willing to rent to people who are still under supervision.

Especially with the new guidance that prohibits blanket denials for convictions, landlords must take specific factors into account, so don't be afraid to make a case for yourself! 

Other Forms of Discrimination

If a landlord is checking criminal backgrounds and/or denying tenants because of criminal convictions, they should do it for everyone, or be able to give a non-discriminatory reason for checking some people and not others. Just because landlords in Wisconsin can choose between people based on criminal backgrounds does not mean they can discriminate on the basis of race, color, religion, gender, national origin, mental or physical disability, familial status (including pregnancy), age, sexual orientation, marital status, ancestry, lawful source of income, and being a victim of domestic violence. Dane County and Madison have even more protections.

If a landlord were to do a criminal background check only for people of one race, for instance, then checking criminal histories could end up being discriminatory. See Discrimination. 

Landlords Can Now Charge Out-of-State Applicants for Background Checks

If a prospective tenant is currently living out of state, a landlord can charge up to $25 for a background check in addition to a credit check fee. The tenant must be notified of the charge before it happens and the landlord must provide a copy of the report. However, tenants can continue to be charged by other prospective landlords even if the tenant has a recent report. Wis. Stat. 704.085(2), 2017 Wis. Act 317, Sec. 41. Eff. on or after 4/18/18. 2017 Wis. Act 317, Sec. 56.

Disclosing Your Own Background Information

It is much better to disclose your record than to let the landlord discover it in CCAP without any explanation from you. When you take responsibility for and are honest about disclosing your background, you can make a good impression and put a human face to your story.

You might want to write a short letter (one page or less) and make copies to attach to all of your applications. Or, if you’re meeting a landlord in person, plan out what you’re going to say ahead of time. 

Tips for writing a letter

Be polite, professional, and brief. You might mention one or two positive, personal details about yourself, such as community service, hobbies, or things you will enjoy doing around the neighborhood. 

Examples of Things To Say In A Letter

• “I’m writing to let you know that when you do a criminal background check, you will find the following charges: [list charges and dates.] I want to be honest with you about my past, which is very different from my present [add details] and my plans for the future [add details]. I think I will make a good tenant and I hope you will consider my application.” 
• You might also list: The time you have served, programs you participated in (counseling, drug court, anger management, treatment, etc.), and any positive examples like early release for good behavior or mitigating circumstances. 
• “If you have any questions or concerns please contact the following personal or professional references (including your probation or parole officer, if applicable): [List names, phone numbers, and addresses of personal or professional references.]” 
• Thank them for their time, then sign and print your name.  

Some sample letters are available here.

Tips For Using CCAP

• Look up your own record in CCAP before writing or talking to a landlord. That way you know what they’re going to see and can plan your response.
• Some landlords are not very careful when they search CCAP. If someone else with your name (or a similar name) has charges the landlord might mistake for yours, let them know. Point out that the other “Jane/John Doe” has a different birth date or middle initial, or if the charges were filed while you were incarcerated, or they live in a different county.
• Some landlords don’t look to see the results of a case. If charges against you have been dismissed, let the landlord know this and tell them they can confirm it in CCAP by checking the full record and case details. You can also print this out and enclose it with your letter and application. More information on how to find those details is here.

How To Check CCAP

1. Visit the website: www.wcca.wicourts.gov
2. Read the agreement and click “I Agree” to enter the website.
3. Enter your last name, first name, middle initial, and birth date, and click “Search.” Try it again without your initial and birth date to see who else shows up.
4. To see the details for a particular case, click on the case number. You may be required to click “View Case Details” on another screen summarizing the results of the case.
5. The case details will include the type of case, charges, and the names and addresses of the parties involved (where applicable). At the top of this screen, click the button for “Court Record Events” for more information.
6. For help understanding the court records, visit the main CCAP page and click the links at the bottom under “Court Terms.” 

Removing Civil Cases in CCAP

Unless a civil case is closed, confidential or sealed, a civil case may be removed from CCAP as follows:

1. If a writ (court order) has been issued in an eviction, the case can now be removed after 10 years have passed, or Stat. 758.20(2)(a), 2017 Wis. Act 317, Sec. 46.
2. If an eviction has been dismissed and there is no money judgment docketed, the case can be removed after 2 years. Stat. 758.20(2)(b), 2017 Wis. Act 317, Sec. 46. Eff. on or after 4/18/18. 2017 Wis. Act 317, Sec. 56.

These law changes do not apply to criminal cases, but it may help you with any old civil records that might also work against you.

How are Landlords allowed to use your criminal background in choosing whether to rent?

HUD released a memo in 2016, and the basic premise of that memo is this: In the US, African Americans and Hispanics are arrested, convicted and incarcerated at a rate disproportionate to the general population. ("Across all age groups, the imprisonment rates for African American males is almost six times greater than for White males, and for Hispanic males, it is over twice that for non-Hispanic White males.") Therefore, any policy that screens housing applicants based on their criminal history is likely to have a "disproportionate impact on minority homeseekers," even if the landlord had no intent to discriminate. (Disproportionate/disparate impact is a big deal in Fair Housing Law - it's the basis by which things can be legally classified as discriminatory.)

HUD sets out some pretty clear rules regarding what a policy must look like, if a landlord wishes to screen for criminal history. 

The criminal screening policy can't: 

• Deny all tenants with all kinds of criminal convictions.
• Deny tenants who have only been arrested, not convicted.
• Make any decisions to deny based on criminal history or make exceptions to criminal history denials based on race, or other protected classes. (That's illegal). For example, looking at the criminal history of only Hispanic applicants would be illegal. Or, allowing exceptions to a criminal history policy, but only to White applicants, would be illegal. 

The criminal screening policy should:

• Take into account how long ago the conviction was.
• Distinguish between how severe past crimes were, and what kinds of crimes they were.
• Have some kind of evidence-based justification for existing. Why does the landlord need the policy? What evidence contributed to establishing that need?

The criminal screening policy is allowed to:

• Look at individual circumstances for each applicant, if the landlord wants to give someone an exception to the policy (which would otherwise deny them). Note: exceptions can't be based on an applicant's membership in a protected class. 
• Deny potential tenants if they were convicted of the manufacture or distribution of drugs.
• Check other qualifications (i.e., credit scores, housing history) before addressing the criminal side of things.

How a Tenant Would Challenge a Discriminatory Screening Policy?

The big question is, how would this work? The HUD guidance seems to suggest these steps:

1. Apply. A tenant applies for housing. 
2. Get rejected. The landlord denies the tenant. 
3. Ask for the reason for rejection. (HUD didn't say this one - we put this step in.) It's a really good idea to put this in writing - either ask for a written rejection, or if you get a verbal one, write it down and send it (suggestions here for how to make that work). (NOTE: Both the City of Madison and Dane County have ordinances currently in their written code that say that a landlord needs to give reasons for denials of rental applications. However, 2013 Wis. Act 76 seems to have made that requirement illegal, so it's best not to take those ordinances at face value). 
4. If the landlord says it's because of criminal history, ask for their criminal history screening policy. (HUD didn't say this one - we put this step in.) Do this in writing. 
5. Challenge the policy as being discriminatory. Explain, in writing, that this policy doesn't conform to HUD's guidance on use of criminal records. Cite the exact line that says so, if you can. (Look at our landlord's guide to these rules for some specific quotes.)
6. Landlord responds to discrimination concerns, and explains why their policy is necessary. HUD says, "a housing provider must... be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property."
7. Option A. If the landlord doesn't explain why the policy is necessary, (either they don't say anything, or their explanation doesn't meet the standard in #6), then to take further action, a Fair Housing complaint would need to be made. Look at our Discrimination page for information, or seek help from the Fair Housing Council.
   Option B. If the landlord does successfully explain why the policy is necessary, the policy can still be challenged by showing that the landlords could have had the same results with another policy that is less discriminatory. HUD says, "In the third step, the burden shifts back to the plaintiff or HUD to prove that such interest could be served by another practice that has a less discriminatory effect."

References and Rental History

Even if your most recent rental history was many years ago, provide as much information as you can. If you don’t have contact information for previous landlords, use a roommate, an old neighbor, or another community member who can provide a reference.

Personal references are not usually required but many people with criminal backgrounds will provide them as extra information. This might be someone you know through a faith-based organization, a friend or teacher, or someone you met through Circles of Support or another re-entry program. They should not be a spouse or family member. You can either provide their contact information or include a letter of reference.

Remember: You still have rights.

When a landlord accepts you as a tenant, you have the same rights as any other tenant in Wisconsin. For more information, see Tenant Resource Center’s website on topics like repairs, landlord entry, security deposits, and eviction. Here are some laws that specifically apply to people with a criminal background:

• Sex Offenders: If the Department of Corrections approves it, you can live anywhere. No rules say whether landlords can or cannot rent to you, although some will not. If you are a registered sex offender, your landlord is NOT required to give this information to the other tenants or to prospective tenants unless they ask in writing about you specifically, and the landlord knows you are in the registry, otherwise, the landlord is only required to tell them they can look it up in the sex offender registry. Wis. Stat. 704.50
• Eviction: Your landlord CANNOT evict you just because another tenant feels threatened by you. They can only evict you under the Safe Housing Act if that tenant (or their children) is named in an injunction, criminal complaint, or condition of release against you. Wis. Stat. 704.16

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 a chronic nuisance ordinance (MGO 25.09) 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, CR 14-038, Section 11.

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(1m), CR 14-038, Section 11. ATCP 134.08. ATCP violation effective 11/1/15. If this happens, the tenant can break their entire lease if they choose and they will no longer be responsible for that rental contract. A landlord, however, may not break a lease for this reason because they drafted the lease.  If the lease is not broken, that clause may not be enforced.

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 clauses in the lease that could make the lease void are noted below.  A clause that:

• Allows the landlord to terminate the tenancy if a crime is committed in or on the rental property, even if the tenant could not have reasonably prevented the crime. Wis. Stat. 704.44(9), 2011 Wis. Act 143, Sec. 35m. This was only effective for leases entered into or renewed after 3/31/12 through 3/1/14.
• Allows 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. Eff. for leases entered into or renewed on or after 3/1/14. ATCP violation effective 11/1/15, ATCP 134.08 (9). CR 14-038, Section 11.
• Allows 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 of Domestic Abuse Protections required under Wis. Stat. 704.14. Wis. Stat. 704.44(10), 2013 Wis. Act 76, Sec. 26. Eff. for leases entered into or renewed on or after 3/1/14. ATCP violation effective 11/1/15, ATCP 134.08(10), CR 14-038, Section 11.

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 which they (or their guests) did not cause!

However, while there are laws in place to protect you, if you are on probation or parole you may want to think carefully about the ramifications of calling the police and having them enter your apartment. If you are having ongoing issues at your residence you may want to talk to your probation or parole officer in advance about how to handle situations that might arise. Also, please read the next section for important news about evictions for suspected criminal activity by the tenant or their guests.

Evictions 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 of "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

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

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

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

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

Notes

• 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
• The laws about criminal activity and “drug-related criminal activity” in Wis. Stat. 704.17(3m) and 704.19(2)(b)2. went into effect on March 2, 2016. 2015 Wis Act 176, Section 44, subsection 1
• The laws about leases and language related to criminal activity in Wis. Stat. 704.17(5)(b) go into effect for all leases entered into or renewed as of March 2, 2016. 2015 Wis Act 176, Section 44, subsection 2
• Wis. Stat. 704.44 Language that makes a lease void and unenforceable was not changed.  Leases that contain the following provisions would be void and unenforceable. A provision that:
  •  Allows 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, as defined in s. 950.02 (4), of that crime.
  •  Allows 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 s. 704.14.

Contesting a 5-day No Cure Eviction for Criminal Activity based on the 2016 HUD Memo

Giving a 5-day notice with no right to cure because of "criminal activity" seems to contradict some components of the 2016 HUD guidance, which says that any policy using criminal records can't be based solely on arrests, and must take into account the kind of crime, severity of the crime, and time since it happened. The memo says, "this guidance addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a housing provider justifies an adverse housing action – such as a refusal to rent or renew a lease – based on an individual’s criminal history." This is still relatively untested, as far as discrimination cases go, but it looks like if a landlord wanted to evict someone based on "criminal activity," that landlord would need to follow some of the same rules put forth in the HUD document before they could "exclude" that tenant from housing.

A tenant challenging an eviction notice based on these HUD laws would probably do well to follow similar steps to those above:

1. Receive a 5-day notice with no right to cure for criminal activity. Before jumping in to argue the discriminatory impact of that notice, it seems like a good idea to check if it's a legal notice. You can check the law, but here are the basics. As stated above, according to Wis. Stat. 704.17(3m)(b)1., a 5-day no-cure notice for criminal activity 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, including:
       - a description of the criminal activity or “drug-related criminal activity,”
       - the date it took place, and
       - 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.
2. Dispute that notice, in writing. This is standard for what we recommend. You'd probably want to follow one of these three methods:
   • Dispute the notice. Explain why it didn't follow the criteria stated in the law.
   • Dispute the criminal activity. Since this is a no-cure notice, your only real grounds for dispute here is saying that the criminal activity didn't occur.
   • Dispute the notice based on this HUD document. Ask for a written policy describing under what circumstances they use criminal activity eviction notices.
3. Argue your case in court. More about Small Claims Court is here, and more about the general eviction process is here. Keep in mind:
   • A landlord's evidence-based justification for the policy might be that a crime occurred that threatened the safety of residents. If this is true, they don't need to prove it in criminal court.They only need to prove that it reasonably happened in Small Claims Court, where the burden of proof is lower (only 51%, compared to criminal court's 100%, "beyond a shadow of a doubt").  The penalty is also less extreme (losing housing vs. going to jail). 
   • If your case is being heard at the "return date" or "initial court hearing" or "joinder conference," you always have the right to ask for a trial in front of a judge on a different day. If your case was decided by a court commissioner, you can ask for a do-over right away, and ask that the case be heard by a judge.
   • It is illegal for a landlord to choose to evict only certain residents for criminal activity when that decision to evict is different based only on protected classes: race, gender, age, family status, and so many more.

You might want some help with this! Here is our attorney referral list.

← Back to Eviction.

“...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:

1. 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." 
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, 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.
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.

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.

*This page is under review, so the information below may not reflect current federal, state, or local laws.*

← Back to Eviction.

“It is the declared policy of this state that all persons shall have an equal opportunity for housing regardless of sex, race, color, sexual orientation, disability, religion, national origin, marital status, family status, lawful source of income, age or ancestry ... [as] an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity and human rights of the people of this state.”

- Excerpt of Wis. Stat. 106.50(1) Wisconsin's Open Housing Law

Have You Been a Victim of Housing Discrimination?

If you asked an average person to define “discrimination,” they would probably say something like “treating someone differently because of who they are.” But in housing law, discrimination has a specific and complicated meaning. It can be confusing to determine whether a real-world situation meets the legal definition of housing discrimination, even when the answer seems obvious.

Any form of housing discrimination against members of protected groups is illegal. Prohibited acts include refusing to rent, evicting, not renewing, denying an equal level of services, and other forms of tenant harassment. But, while housing discrimination is a violation of federal, state, and/or local laws, it still occurs.

To determine if you have been a victim of housing discrimination, ask yourself the following questions:

Were You Treated Differently From Other Tenants or Applicants?

The following landlord practices are prohibited when targeted against a person who is a member of a protected class under Wis. Stat. 106.50(2):

• Falsely claiming that housing is unavailable
• Refusing to rent, or to allow people to apply to rent
• Refusing to allow applicants to enter and inspect a dwelling before renting it; or having different prices, terms, or conditions for different applicants
• Advertising a preference or limitation (for example, "great for a couple,” “young professional,” or “Christian family")
• Refusing to renew a lease, causing eviction; or harassing a tenant
• Providing different privileges, services, or facilities
• Coercing, intimidating, or threatening a person because they tried to use their fair housing rights, or because they encouraged others to do so (see our Landlord Retaliation page)
• Otherwise making housing unavailable or denying it exists

There is no law against a landlord being rude. If a landlord makes everyone's repairs slowly or not at all, or refuses all applicants who have bad credit, then it is not discrimination. If your landlord targets you for poor treatment, you still must show that the landlord treated you differently because of your status as a member of one or more of the following protected classes.

Do You Belong to a Class That Has Protections Under Law?

A “protected class” is a group of people sharing a common trait or characteristic, who are protected under the law from being discriminated against specifically because of that trait or characteristic.

In order for a landlord practice to be considered discriminatory, it must target a person who belongs to at least one protected class.

Federal

Federal protected classes include:

• Race
• Sex
• Color
• Religion
• Gender
• National Origin
• Mental or Physical Disability (including the right to Service & Companion Animals)
• Family Status (including pregnancy) 
• Age (40 and over)

Wisconsin

Wisconsin includes federally protected classes, plus the following:

• Sexual Orientation
• Marital Status
• Ancestry
• Lawful Source of Income
• Victims of Domestic Abuse or Other Crimes
• Age (18 and over)

Dane County

Dane County includes all federal and state protections, plus the following:

• Physical Condition, Mental Illness, and Handicap (including the right to Service & Companion Animals)
• Type of Military Discharge
• Physical Appearance
• Gender Identity & Gender Expression (including transgender people)
• Domestic Partnership Status
• Political Beliefs
• Student Status
• Receipt of Rental Assistance (such as Section 8)

Madison

Madison includes all extra classes in Dane County plus:

• Citizenship Status (City of Madison only)
• Genetic Identity (City of Madison only)
• People who decline to disclose their Social Security Number
• Non-Religion, or Atheism
• Homelessness
• Unemployment

Examples of people who are not protected under City of Madison, Dane County, state or federal law include (but are not limited to):

• Smokers
• People with pets that are not service or companion animals
• People with an arrest or conviction record (however, if a landlord checks this, they should check every applicant on a consistent basis)
• People who earn a low income

Other local cities and counties might have additional protected classes or varying specifics, so check your local fair housing ordinances.

Were You Treated Differently Because of That Protected Class?

For example, if a landlord refused to rent to you because you are female, an immigrant, Jewish, gay, African-American, only 22 years old, divorced, have children, etc., that might be illegal discrimination.

Fair housing laws do not require landlords to rent to people in protected classes if there is a legitimate reason to deny their application. Legitimate reasons include poor references or poor credit reports, a record of eviction, an incomplete application, or false information on an application. If a landlord were to decide to do a credit check (or other forms of applicant screening) only because of someone's membership in a protected class, though, that could be considered discrimination (for example, only checking the credit history of Black applicants; or renting to some people with an eviction record, but not if they are single mothers).

Applications have one legitimate purpose: to give the landlord information about whether the applicant will be a good tenant (whether they will take good care of the apartment, pay the rent and not disturb other tenants, etc.). If any question concerns age (other than being over 18), sex, marital status, etc., or does not seem to serve a legitimate purpose, tenants may want to ask why the landlord needs the information. Landlords are allowed to ask:

• Names of everyone applying to live in the unit
• Places the tenant lived in the past few years
• Where tenants work and/or amount of income (in order to verify ability to pay)
• Financial information about debt
• Whether everyone is 18 or older

A landlord may verify this information by calling past landlords and employers or by checking your credit report. If the landlord requests permission to do a credit check, they may get your report from a credit bureau.

For more information about who to call with issues, see: What's the difference between fair housing and tenant-landlord laws?

For more information about housing discrimination or to file a complaint, call the following agencies:

• City of Madison Equal Opportunities Commission
  (608) 266-4910
  Outside of the City of Madison, check with your city or county for a similar Equal Opportunities Commission in your area.
• Fair Housing Centers
  Three offices in Madison, Milwaukee, and Appleton provide services throughout Wisconsin.
  Toll-free intake line: (877) 647-3247
• Dane County Corporation Counsel
  (608) 266-4355
• Wisconsin Equal Rights Division
  (608) 266-3131
• Wisconsin Consumer Protection
  (800) 422-7128
• Federal Dept. of Housing and Urban Development (HUD)
  Chicago: (800) 765-9372

Denied Applicant's Right to Know

There is currently no legal requirement that landlords accept certain tenants over others. The only cases in which tenants are protected is if they can prove they were the victim of discrimination or retaliation for asserting their rights.

If a landlord denies your application to rent, they are not required to inform you of the reason why you were denied (although you are allowed to ask them).

Wis. Stat. 66.0104(2)(d)1.a., 2013 Wis. Act 76, Sec. 2 & 4

Non-Renewal of Tenant's Lease

There is currently no legal requirement that landlords renew an existing tenant's lease. The only cases in which tenants are protected is if they can prove they were the victim of discrimination or retaliation for asserting their rights. Wis. Stat. 66.0104(2)(d)1.a., 2013 Wis. Act 76, Sec. 2 & 4

How Can Landlords Avoid Discriminatory Treatment?

Landlords should create a set of non-discriminatory procedures for everyone and follow them consistently regardless of what class the tenant belongs to. It's the best way to protect landlords and their tenants.

• Create procedures for showing rental units and follow them consistently. Have a checklist of items to go over with each caller and person who is shown a rental unit. Use the same checklist with everyone.
• Set up application criteria that will ensure you accept good tenants. Check prior landlord, employment, and personal references, and eviction records. Do credit checks. Review the application thoroughly for missing and inaccurate information. Follow this criteria for all applicants every time and do not allow biases or any unrelated information to affect your decision. If you decide to have alternative criteria, that is okay. If someone has a lesser credit score, but you would rent to them if they had a co-signer, just make sure everyone with that lower credit score gets the same opportunity.
• Advertise the features of the apartment, not who you want to rent it to. Avoid phrases such as “perfect for…”. Instead, describe the apartment itself and let prospective tenants decide if they are interested.
• Treat all tenant complaints and requests in a consistent manner. Set guidelines for handling repairs and tenant complaints.

Follow your non-discrimination procedures consistently. If you have further questions, call the Tenant Resource Center or one of the listed agencies. For legal advice, consult a housing attorney.

• Credit Reports
• Fair Housing Laws
• Is It Discrimination?
• Landlord Retaliation
• Pets and Service Animals
• Preparing to Rent
• Quick and Dirty Guide to Renting in Madison
• Renting with a Criminal Conviction or Arrest Record