Winter No-Go Clause

As we get closer to winter (notyetnotyetnotyet), we're starting to get questions from folks who are looking ahead and realizing that they need to move out of their apartment over the coming winter. We see a number of tenants who have month-to-month leases, where those leases say that the leases can't be ended during the winter months (i.e., October - March), and they come to us feeling pretty confused. "I thought I had a month-to-month lease," they say, "but here's half the year when I'm not allowed to move out."

So, to the tenants out there who are wondering about this: It's a confusing issue, that's for sure. And it's not entirely clear whether or not these clauses are legal. 

Here's the basics in these kinds of clauses: your lease, which you signed (right? You agreed to this thing?) says that you must give (for example) 60 days notice and that you can't leave during the months of Oct., Nov., Dec., Jan., Feb., or March. (It could be any number of days notice, and any number of months. These are just an example.)

There are 3 schools of thought on how to deal with this situation:

1. The-Landlord-is-acting-legally-way: This is the approach we tend to favor, because this is what we see more people doing. The law that governs how month-to-month leases can be ended is Wis. Stat. 704.19. It gives a default way to deal with month-to-month terminations (28 days written notice), but says that another way can be enforced if "the parties have agreed expressly upon another method of termination and the parties' agreement is established by clear and convincing proof." Leases usually qualify as clear and convincing proof, and in this case, we would say that while your notice to terminate usually has to be 60 days in advance, during the winter months that time is extended. Under this school of thought, all that is legal.

2. The-Landlord-is-acting-illegally way: In this approach, we look at the law about automatic renewal. Wis. Stat. 704.15 says that if your lease is automatically renewing, the landlord must give you 15-30 days written notice before the date that you need to give notice (ie, 15-30 days before the 60 days you need to give notice by - for this lease the notice would be due between July 2-17, since 60 days notice would have to end by Sept. 30), and if a landlord doesn't give you that written notice, then the automatic renewal is not enforceable. In this school of thought, your month-to-month lease is automatically renewing into a 6-month lease for that period, and therefore, you must be given appropriate written notice in order for that length of a lease to be enforceable. The reason we don't go for this rationale: judges definitely don't make a landlord send out that notice every month if you are a month to month tenant, so this kind of automatic renewal is in a grey area, and will go with whatever way the judge decides on.

3. The-Lease-is-illegal-way: If the lease says that the landlord will not attempt to re-rent the rental unit if you leave during the winter months, then that is not okay, and the lease may be void. You always have the right to break your lease, no matter when you gave notice, and the landlord has to attempt to re-rent the property (all this is on our Ending Your Lease page). Wis. Stat. 704.44 (3m) says that if a lease says that the landlord won't mitigate (i.e., they won't re-rent the property once you unexpectedly leave), then the landlord can't make you responsible for paying the rent, and also, the entire lease can be rendered void and unenforceable.

So, which approach is right? It depends on: the exact wording of your lease about what is or isn't allowed, and how the judge would respond if you ended up in court (if the landlord were suing you for unpaid rent, for example).

No matter which way you're thinking about this situation, for most tenants, the idea is to get out of there. Here are the steps that we recommend that you take:

1. Write a letter to your landlord. Quote the laws that you think are most relevant for your situation, and try to get out of the lease. If you and your landlord come to any kind of agreement, get that in writing. Otherwise, it'll be hard to prove it ever happened.
2. Break your lease or sublet. Our Ending Your Lease page explains the different ways this can happen. Even if your lease says that you are on the hook for the winter months, you always have the right to move out and ask that the landlord try to find someone new to rent there.
3. Your landlord still has to make the apartment available for new tenants to rent, in all the normal ways that they make apartments available. You can monitor their progress by keeping track of their ads, or advertising it yourself and passing along the interested parties. More info in our mitigation section.


For the landlords out there: it's a bummer when tenants break a lease. We wrote something just for you last week. Check it out, if you like!


* Hi! Did you know that we are not attorneys here at the TRC?  And this isn't legal advice, either.  If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.