An eviction is a process landlords may begin when they believe a
tenant has seriously violated the lease, and they want the tenant to fix
the problem or leave the apartment. In Wisconsin, the process usually
begins with a notice giving the tenant at least 5 days to remedy a
violation. The process may eventually end up in small claims
court with a judge deciding whether the tenant stays or whether the
tenant will be removed from the apartment.
It is important to remember that in Wisconsin a tenant can only be
evicted by a judge.
The EVICTION PROCESS: The Wisconsin eviction process begins when the landlord serves or
gives the tenant a written notice under Wisconsin. Stat. 704.17 A
landlord's notice is not the same as a Summons and Complaint from Small
Claims Court.
The Wisconsin landlord should try to give the notice to the tenant or
someone in the tenant's family over the age of 14. If the landlord has
tried that, he or she may post a copy of in an obvious place on the
rented premises and mail a copy to the tenant's last known address, or
send it by registered mail. However, if the tenant acknowledges that
they actually received the notice, it does not matter what method of
service the landlord used.
Types of Notice: Note: A notice that your lease will not be renewed or a 28-day notice
to end a month-to-month tenancy are non-renewal notices, not eviction
notices.
The notice must be in writing and include the date, the rent due or
lease clause the tenant has supposedly violated, or the rent owed, the
type of notice, and the right to cure the problem, if the tenant has
one. There are several types of termination notices:
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- 5-day Pay or Quit Notice is a warning that the tenant is late with
rent. The landlord can only give this notice at a point when the
rent is late. This notice can be cured. By law, the landlord has to
allow tenants at least 5 days (not counting the day it is served,
Saturday or Sunday, according to Wis. Stat. 801.15(1)) to pay all
overdue rent. Your county, community action agency, or churches
might assist. Some tenants mistakenly think they have to leave after
receiving this notice! All tenants need to do to avoid a court
summons is to pay all that is owed (and avoid being late again).
Tenants may want to send a dated letter that explains how much rent
is attached. Tenants should keep a copy of the letter and check for
documentation that they paid in time.
- 5-day Notice for Non-Rent Violation is a warning that the tenant
caused a disturbance, damaged property, or violated a lease rule.
The landlord has to allow tenants at least 5 days, and the tenant is
only required to promptly take "reasonable steps" to stop
the violation, or make a "reasonable offer" to pay the
landlord in the case of damages to the unit. Tenants should keep a
copy of a letter to the landlord that either denies any violation,
or explains that the tenant has taken reasonable steps to cure, or
remedy, it (like turning down the stereo) within 5 days.
- 14-day no-right-to-cure notice orders you to move within a period
of at least 14 days even if you fix the problem. The tenant has no
right to cure! Landlords can give this notice to week-to-week and
month to- month tenants. Tenants with rental agreements of more than
a month can only be given this notice if they already received a
5-day for the same violation type (rent or non-rent) within the
previous 12 months.
- A 5-day notice with-no-right-to-cure is rare. It can be given by
the landlord only if the police give the landlord a notice that
their property is a "drug nuisance" (drug making or
selling is done by the tenant or done in the tenant's unit). A
tenant can challenge this termination (do it in writing to the
landlord and keep a copy), and then the landlord must let the tenant
stay or schedule a court hearing and prove the "drug
nuisance" to a judge.
- 30-day notice to cure is served only to tenants with a lease for
more than a year, giving them at least 30 days to pay late rent or
take steps to stop violating lease rules.
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The 5 or 14-day Notice: If the tenant is on a rental agreement for a year or less, the
landlord must serve the tenant with a 5-day notice for the first lease violation. If
the tenant commits a violation in the same category (rent or other)
within 12 months after the 5-day notice was given, the landlord may
serve either a 5- or 14-day notice.
If the tenant has a month-to-month rental agreement, the landlord may
give a 5- or 14-day notice for the first rent payment violation.
Responding to the notice: Once you receive a 5, 14, or 30-day notice, you have three options:
1. You can fix the problem and remain in the
apartment.
If you received a 5-day notice and you pay up or take reasonable
steps to fix another type of violation within the time limit (the day
served, Saturday and Sunday do not count (Wis. Stat. 801.15(1)), then
you have the right to remain in the apartment. The landlord does not
have a right to remove you or even go to court or to refuse a rent
payment from you. Write a dated letter to the landlord saying the
problem is cured and keep a copy. If you received a 14-day notice and
fix the problem (remembering to document that you cured with a copied
letter) you may still have to negotiate with your landlord. The landlord
could refuse your rent and file an eviction summons and complaint to
schedule a small claims court hearing. If you reach a settlement, try to
get any agreement in writing, signed by all parties, and keep a copy.
2. You can deny any violation and
stay.
You might wish to stay if you believe the landlord had no legal
reason for giving the notice. Remember, you have a right to a trial and
the landlord will need to pay a filing fee, wait for a hearing, and
prove you violated the lease and that proper notices were given.
Sometimes evictions have no grounds. Judges can allow tenants to reduce
a percentage of rent to compensate for major health and safety hazards.
Some evictions are thrown out or tenants win counter-claims because of
laws against discrimination and landlord retaliation against tenants
exercising their legal rights. Contact Tenant Resource Center for more
information or a housing attorney for legal advice.
However, if you stay and the landlord files a summons, even if the
case is dismissed, the summons is public record. Future landlords might
turn you down even for the dismissed eviction - so it is better to avoid
the summons if possible.
Also, the landlord could win the eviction and get a judgment for
double the pro-rated rent for each day after the last 5- or 14-day. This
situation is rare, but it happens. If possible, sometimes the safest
option is to negotiate with your landlord; any agreement reached should
be in writing with copies for both you and your landlord. Tenants and
landlords can also use the Housing Mediation Service at (608) 257-2799
to negotiate an agreement.
3. Move out
This may be an option if you have a place to go. However, moving out
does not end your responsibility for the rental agreement. Even if you
leave, you will probably still owe the rent, as well as costs to re-rent
or until the lease ends. (The landlord has a duty to make all reasonable
efforts to rerent the unit, according to Wisconsin Stat. 704.29.) Also,
even if you leave, the landlord may still file in court to evict you,
just to make sure you do not move back in (avoid this by giving the
landlord notice in writing of your move-out date and keep a copies for
your records.) This court record or the landlord's bad reference or
credit report can make it difficult to find another apartment.
IF THE TENANT DOES
NOT MOVE OUT: The only way a landlord may remove you is by a court order. Landlords
cannot: change your locks, remove your possessions, push you out, turn
off your utilities, throw things out in the street, or any self-help
eviction. Most states are the same.
The landlord needs a court order to remove you from the premises.
Your landlord can be prevented from trying to remove you illegally, and
can be fined, or even sued. Document what happens and any costs you have
related to the illegal eviction. Call the sheriff's office, Consumer
Protection at (800) 422- 7128, Legal Action, or a private
attorney.
The landlord must pay a filing fee and file at the county court. You
should receive the Summons, from a sheriff or a civil process server, at
least 5 days before the joinder conference or initial hearing. You must
appear in court on that day or you will be evicted. You do not need to
bring witnesses to a joinder conference, but be prepared to discuss your
case at this time. The purpose of the conference is to find out if there
will be a settlement (like a written payment plan or agreement for the
tenant to leave on a certain date), or if there will need to be a trial.
If a settlement is not reached, either party can request the trial to be
on a different date. It is important that if you make a payment
agreement that it is a reasonable payment schedule. If you make an
agreement and do not follow through, you may be evicted without
returning to court.
If the case is not settled at the joinder conference it will proceed
to trial. If you tell the small claims clerk that you do not want to
hold the joinder conference and the trial on the same date, state law
requires that the trial be rescheduled to a later date. At trial, you
should be prepared to present all evidence and witnesses. Check with
your clerk of courts to learn the procedure in your county.
If Evicted: If you go to trial and lose in Wisconsin, the judge will issue a
written order called a writ of restitution. After the landlord gives the
sheriff the writ, the sheriff will come within 10 days to remove you
from the apartment. Usually the sheriff will post a 24-hour notice
before removing you from the premises. Only the sheriff has the
authority to post a 24-hour notice and remove a tenant. (The tenant may
contact the sheriff and attempt to arrange a move out date). If the
sheriff removes you, your possessions will be moved to storage and you
will have to pay reasonable moving and storage costs to retrieve them
(but not back rent). After an eviction, it may be very difficult to rent
again. If you are evicted you may wish to contact Tenant Resource
Center, county human services, and First Call For Help at 211 or (608)
246-4357 (in Dane County) for agencies that provide emergency rent,
shelter, and other assistance.
After you are evicted, and the landlord has the opportunity to
determine how much money you may owe, a rent and damages hearing will be
held. The tenant should receive a notice of this hearing. At this
hearing, a hearing examiner will determine the amount of judgment
against you. It is important to attend so that you can provide
information that may minimize the amount of the judgment. For example,
landlords cannot charge for time spent rerenting or a rerental
processing fee. Landlords have an unwaivable duty to mitigate or
minimize all rerental costs (Wis. Stat. 704.29). For more information
contact Tenant Resource Center. For legal advice, contact a housing
attorney.
Important Phone Numbers
| First Call for Help (Dane County) |
211 or
(608) 246-4357 |
| Consumer Protection |
(800) 422-7128 |
| Legal Action of Wisconsin |
(608) 256-3258 |
Housing Mediation Service
(Dane County only) |
(608) 259-2799 |
| Dane County Small Claims Court |
(608) 266-4311 |
