Tenants who are subletting should make sure they understand their rights and responsibilities. In this blog, we explain different subletting arrangements and best practices for protecting the original and new tenants’ interests.

What is Subletting?

A sublet, or sublease agreement, adds someone new to an existing lease. Usually the new person (subletter) replaces someone who is moving out (sublessor or sublessee) but it can also happen with any new person being added to a lease. A sublease is a binding contract, and all of the same lease rules and rental laws apply to everyone involved as with a regular lease. In Wisconsin, rental agreements can be verbal, but a sublease has to be in writing. Otherwise, the agreement is some other type of leasing situation and different rules might apply. Wis. Stat. 704.09(4)

First things first: A tenant might not need to sublet!

Subletting is risky. It comes with the same risks as taking on a roommate, except both people won't be there to deal with problems as they arise. If a tenant's subletter skips town or damages the apartment, the tenant is jointly and severally liable with them and could get stuck with the bill. If you are the new person moving in (subletter), it can feel just like a regular rental, except the person you might have the most contact with is both a tenant and (kind of) a landlord. For both the tenant and subletter, chances are good that this isn't someone you know very well, and sometimes there are better options available!

For all those reasons, a tenant wants to make sure they actually need to go this route before signing a sublet agreement. At Tenant Resource Center, we only suggest this as a last option, although many students end up having to chose it for the reasons here.

As a tenant, you only need to sublet if...

• You are leaving a lease you share with roommates and at least one of them is staying behind. (This is by far the most common reason for subletting.)
• You want to come back to the same apartment later on (like for the summer after a spring semester away).

If none of those apply, we strongly encourage tenants to look at other options for ending a lease early! The end result is the same (someone new moving in to the apartment, and taking over the rent) but the landlord has to do more work finding that new tenant, and the tenant has no more obligations even if that new person breaks the rules or owes money.

A Tenant's Steps for Subletting

1. Landlord permission. Check your lease for rules about subletting or "assignment".
   • If you have a month-to-month lease or are a tenant-at-will, you are never allowed to sublease without your landlord's permission. But in that situation, it doesn't really matter! You can end your lease fairly quickly, with or without their permission, by giving a simple written notice. Wis. Stat. 704.09(1)
   • If you have a lease for a set term, like one year, you can sublet with or without your landlord's permission, unless they prohibit this in the written lease. Wis. Stat. 704.09(1). However, even if you're allowed to, it is never a good idea to move someone in without the landlord's knowledge, since they may not respect that person's rights if they don't know they are a tenant there. It's always best if you can get the landlord's permission too, but at the very least you should tell them who is living there.
2. Roommate permission. (Don't have roommates? Consider other ways to end your lease!) You always need permission from the other tenants to add someone to the lease. You can only change essential terms of the contract if the other parties to the lease agree to it. This means your roommates have to approve of the person moving in, the amount of rent they will pay, etc. Work it out among yourselves as to who will be putting ads up and doing showings, when they will meet the roommates, what the criteria will be, etc.
   • Tips for the person moving out: You want to be as accommodating as possible so they will accept the new roommate. Think about it from their perspective and keep the communication open.
   • Tips for the person staying behind: You also want to be fair in accepting or rejecting a new potential roommate. If the current person leaves without being able to secure a replacement, you can try to get rent money from them down the line, but usually not before the landlord starts the eviction process. And if there's no clear roommate agreement about rent payments, then it can be extra hard to make a previous roommate pay for rent after they've left.  So, it's in your best interest to accept someone who will fulfill the obligations of the tenant who is leaving. Check out our helpful blog posts: Negotiation 101 and How to Ask for What You Want!
3. Sublet agreements. Here is a sample sublease agreement you can fill out or use as a template. It's a very good idea to have everyone sign a roommate agreement as well, where applicable. Whatever you do, you will all need to agree on a few important things like:
   • Who will the subletter pay rent to?
     • It is safest if they pay directly to the landlord. Subletters are at risk for eviction if the sublessor takes their money and doesn't put it towards the rent on time.
   • How will you handle the security deposit?

How Subletting Works

Subletting has 2 forms:

1. The original renter becomes (legally) a co-tenant to the subletter. In this situation, the original renter is joint and severally liable with the subletter. They become legal co-tenants because it is the landlord who offered the lease to the subletter.
2. The original tenant becomes the landlord to the subletter. In this situation, the original renter is still a tenant to the unit's landlord, and must comply with the terms of their original lease. But that original renter is also the landlord to the subletter, because the original tenant was the one who offered a lease to that subletter. The original renter must follow all laws as the landlord (for example, notice for landlord entry in the places where the subletter has exclusive possession), but must also follow their own lease as a tenant. The original tenant is liable for all the actions of their "guests or invitees," and so would be on the hook for any unpaid rent or damage done. FYI: If, in this kind of scenario, the original tenant loses their right to rental housing (through nonrenewal, or eviction, for example), then the sub-tenant also loses their rights to housing. 

When a Landlord Must Consent to Sublets:

Wisconsin law doesn't say much about subletting. The one place where there is a specific reference to a "sublease" is in Wis. Stat. 704.09(1), but only to say that original tenant(s) need to seek the consent of the landlord in order to offer a sub-tenancy when:

• The lease of the original tenant says that they must seek authorization from the landlord in order to sublet
• The original tenant is a month-to-month or periodic tenant (figure out what kind of lease you have here)

Security Deposits

It is safest for the landlord to do a check-out with the old tenant to return their portion, and then do a check-in with the new tenant and collect a new deposit from them. However, this takes time and energy, and the landlord is not required to do this. If the landlord won't, the tenants have two options:

• One is for the old tenant to sign their deposit over to the new tenant, and in the meantime collect that amount of money from them. The risk with this option is that the new tenant might not like the amount they get back, and they would be able to sue the landlord or the old tenant for anything they felt was unfairly deducted. ATCP 134.02(5) & (12).
• The other is for the tenant moving out to simply wait until the end of the lease term for the landlord to return their deposit. The risk here is that the old tenant might get charged for things the new tenant damaged.

Either way, it will be very important for everyone to follow all of the security deposit laws and best practices about checking in! For more information, see our page About Security Deposits.

Many People on the Lease:

In a situation where there are many people on a lease, and they are all joint and severally liable as co-tenants and roommates, it can get messy when one person wants to move out before the lease is done. We most frequently see this scenario with students living in the big houses around Madison, and this is one of the few scenarios where subletting might actually be the only choice. 

Here's why: Breaking a lease or otherwise voiding a lease (more here if you don't know about these options) will only work if ALL of the tenants choose to take that course of action. So, in a situation where any of the tenants are staying in the unit under a lease that is still valid, there needs to be some other kind of solution to deal with the person who is leaving. Here are the options:

Option 1: Mutual Agreement to Terminate

People always have the right to change the terms of a contract, as long as everyone who is named on the contract agrees to those changes. We have a sample form for a situation where all the parties on the lease (ALL of the tenants - not just the ones who are staying; the landlord, all cosigners) can choose to end or amend the lease, if they all agree to that - it's here. Coming to an agreement, even where it's not fully comfortable, can alleviate some of the pressure, since there's a clear plan for everyone to follow. We highly recommend going this route if at all possible. If you do come to some kind of agreement, be sure to write it down.

An example: there are 5 original tenants on the lease, and 1 of those tenants wants to leave. The 4 remaining tenants are not thrilled about this, but agree to let the 5th tenant off the lease, as long as that tenant pays an extra month of rent for the time that their room will remain vacant. The 4 remaining tenants will look for a new 5th tenant during that month, and the landlord agrees to let that new person onto the lease, as long as the new prospective tenant meets the landlord's application criteria.  

If you're making an agreement, you might want to answer these questions:

• For how much time will the unit be vacant until it can be filled by someone else?
• What will happen to the security deposit once it is fully or partially returned?
• Will the vacant unit be filled? If so, who will live in the unit? If the unit needs to be filled, but no one has yet been identified, who will search for a subletter (more on this below)?
• Do you have a roommate agreement that identifies what course of action must be taken in this situation?

Option 2: Subletting

So, let's say that there are multiple people on the lease, and one (or more) of them is leaving, while one (or more) of them is staying. Let's say it's kind of contentious (maybe a breakup where one person stays and one person goes). Then, if someone who is named on the lease leaves, what happens to their liability? And how does their liability transfer to a subletter? It's not totally clear. 

Before we begin, anyone considering these options needs to get really clear on joint and several liability. A quick example: If $1000 is due in rent, and there are 5 tenants named on the lease as joint and severally liable, then the landlord has a right to the full $1000, and it doesn't really matter if it's evenly divided among the tenants. If the rent is not paid, the landlord can choose to evict whomever they choose (most likely the person/people remaining in the unit).)

Therefore, if someone leaves, it is not totally clear who is landed with the responsibility of paying the rent and other non-rent costs. If there is a roommate agreement, GREAT. That allows the roommates to hold one another responsible for what is owed, although the landlord doesn't have to follow that agreement when deciding who to evict. 

Because of all this, if one person leaves, and there are tenants who remain in the unit as part of a valid lease, then the only option may be to sublet. Here is what subletting might look like in this scenario:

• The tenant(s) who stay in the unit search for a subletter.
  • Pros: The tenants who live in the unit will have to live with the subletter, so they should choose the person they want to live with.
  • Cons: It's not their fault that a subletter was needed.
• The leaving tenant searches for the subletter.
  • Pros: The leaving tenant knows that they have a higher chance of not being liable for rent if they find a replacement for themselves.
  • Cons: They might choose someone who is difficult to live with for the tenants who remain.
• The landlord will not allow any subletter: In term leases, landlords must consent in order for tenants to be able to have a subletter. If the landlord does not consent, you wouldn't be able to (legally) have a subletter.
• No subletter is found: It may be that, due to a variety of circumstances, a subletter is not found. The tenant(s) who remains in the unit could be forced to pay the entire rent (possibly with the option to sue the person/people who left, if there was some kind of agreement about how financial responsibilities are allocated), or could be evicted for not being able to pay it. The person who leaves is not legally off the hook, in terms of their legal and financial responsibility, but often has less of a reason to continue to pay if that person is not physically living in the unit.

So, what steps can be taken by tenants?

• Try to make an agreement about how this will be handled. Really. It's the best option. If you need help coming up with something, try and find a mediator in your area who can help (for residents of Dane County, we have a mediation program that may be able to help).
• If you are the one leaving, you can:
  • Choose to try and replace yourself (and likely lower your financial liability for rent, but it's also possible for it to increase if the replacement does damage or fails to pay rent),
  • Choose to do nothing (which would push the problems down the road - any evictions or suits would happen later, and your name could legally be on all of those)
• If you are the one staying, you can:
  • Choose to pay the whole rent, and sue the former original tenant for their portion (this usually works best when there's some kind of agreement showing how the rent was divided)
  • Choose to try and replace the tenant (the leaving tenant will still be on the lease, and will still have liability under that lease, but you'll be able to pick who you are living with)
  • Pay part of the rent and hope the landlord doesn't evict you (this is not likely to work)

When Subletting Is the Only Option That the Landlord Gives:

Subletting is not the only option (except for the situation above, with many people on the lease). There are a number of ways to end a lease, and the law says that breaking a lease is always an option. Specifically, Wis. Stat. 704.29(1) says that landlords have to find a new tenant if a tenant breaks their lease, and Wis. Stat. 704.44(3m) is very clear that if the lease says that the landlord doesn't have this obligation, then the lease is void.

Usually, tenants find that subletting is the only option (which isn't true) because they attempt to break their lease, and are informed that the landlord will not allow the lease to be broken. There are 3 possible ways that a landlord might communicate to the tenant that subletting is the only option (which isn't true):

• The lease says that subletting is the only option.
  • A lease that doesn't allow a tenant to break a lease, and only allows the tenant to sublet is a probable violation of Wis. Stat. 704.44(3m). A lease that only allows subletting, and doesn't allow lease breaking means that the landlord is waiving their duty to mitigate damages, and means that the tenant(s) can choose to void their lease. To take this course of action, all tenants would write a letter to the landlord citing the lease, the law, and request to void the lease. Here is a sample letter for this situation.
• The landlord says that subletting is the only option.
  • If a landlord says that a tenant is not allowed to break a lease, but instead must sublet, then that's not allowed under the law, but it's hard for the tenant to prove, since it was a verbal conversation. Therefore, the tenant would write a letter confirming that the landlord is prohibiting the tenant from breaking a lease (it'll help later on proving the landlord's lack of mitigation - sample letter here for putting conversations in writing), and then proceed to break the lease (steps on this blog post, along with a sample breaking lease letter).
• The landlord just doesn't mention that breaking a lease is one of the possibilities.
  • Lying by omission is something that isn't covered by tenant-landlord law. So, just because a landlord doesn't offer breaking a lease doesn't mean that a tenant can't do it. In this situation, follow the steps here to break a lease, and if at any point the landlord verbally says that subletting is the *only* choice, follow option #2, above. 

Please remember: when we say "landlord" here, we mean anyone who is acting as a landlord. So, this applies to rental agents, as well as the person who holds the title to the property.

Breaking Leases vs. Subletting 

When people have the urge to sublet, many times breaking a lease is a better choice. Breaking a lease tends to be a better choice when:

• All the people who are listed as tenants wish to break their lease (breaking a lease doesn't work if some of the tenants will stay in the home).
• The original tenants don't know/trust the subletter. With subletting, the original tenants remain financially on the hook for all rent that might be unpaid and all damage that the subletter might do.
• A tenant has a term lease. Tenants who have month-to-month or other periodic tenancies will probably do better just sending in a non-renewal notice. (Are these terms confusing for you? Check out our page on leases)

In the past, we've dealt with the steps to break a lease a number of times, so look at these pages for more information on breaking a lease:

• Ending Your Lease
• Breaking a Lease: Information For Tenants
• Breaking a Lease: Information about Mitigation for Landlords

The Sublet Fee

Sometimes, when a landlord learns that a tenant wishes to sublet, the landlord will inform the tenant that they need to pay a fee in order to have the option to sublet. This fee is often not fully legal. 

To be clear, sometimes a landlord does have costs associated with screening a new tenant (background checks, criminal history checks), and the landlord can pass these costs onto the tenant. However, a landlord cannot:

• Charge a fee beyond the actual damages (this is due to liquidated damages - click to read more and for a sample letter to dispute those charges).
• Charge for their time. There are specific circumstances in which a landlord can charge for their time, but this is not one of them. Because screening new tenants or otherwise making the unit available to subletters has some overlap with mitigation and lease breaking, we see that the laws on a landlord's time spent mitigating apply to this situation. See the second note at the bottom of Wis. Stat. 704.29.

Best Practices in Subletting

Here are some best practices we recommend:

• Rent Payments Should Go to The Landlord: Subletters should almost always pay rent directly to the landlord. If they pay the original tenant, that person may not pass the payment along to the landlord and it could result in an eviction action where the subletter, not the original tenant, loses their housing.
• Security Deposits: The safest way to deal with the security deposit is for the original tenant(s), the new tenant(s), and the landlord to meet in the apartment for a “check-in/check-out” and to refund the original deposit owed to the sublessor, while collecting the new security deposit owed from the subletter.
  • PRO: The original tenant cannot be held responsible if the subletter does not get their entire deposit back.
  • CON: It can be a challenge to find a time when everyone is willing to meet at the apartment. If they miss or forget to record some damage, the subletter will become responsible for those items. Many landlords are not willing to be this involved in the sublet process. Original tenants who accept a security deposit must follow security deposit laws and regulations that apply to landlords (click here for info on those laws).
• Check-in and Check-out Procedures: Original tenants should complete a check-out form and subletters should complete a check-in form. Renters should make copies of the completed forms and send originals to the landlord. This will prevent future disputes regarding damages to the apartment. If any furniture, appliances or electronic items are left in the unit to be used by the subletter, both the original tenant and subletter should carefully document the condition of the items.
• Sublet Agreement: All sublets should have a written agreement. Here's a sample agreement. Feel free to add on - this is just a suggestion to the beginning of a longer conversation.

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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If there is one thing we at Tenant Resource Center have learned about renting, it is to expect the unexpected!

There is a wide variety of problems that can occur over the course of your tenancy. Below, you'll find a collection of articles and blog posts about many common issues that tenants and landlords may experience in the midst of a rental agreement.

Not seeing the issue you are having above?

Try using the Search feature on our website, or check our other main pages on Your Rights below.

Looking to write a letter or fill out a form?

Check out our Sample Letters page for a complete list of template forms & letters, everything from roommate agreements to repair letters to sublet agreements. Below, you'll find some relevant letters for various problems that can occur during tenancy

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Still not finding answers to the issue you are facing?

You may want to speak with a Housing Counselor. See our Locations & Services to find one of our offices open near you!