What are my rights as a tenant? What are the landlord's rights? How are security deposits handled?
Rental relationships involve expectations on both sides. As a landlord, you've made a sizable investment, and you expect the tenant to treat the premises with care and pay rent on time. As a tenant, you expect the landlord to provide a livable, safe home in return for the rent you pay. Whether you're a landlord or a tenant, it's important that you understand the legalities involved. This brochure looks at common questions you may have.
A lease is a contract that defines the rights and responsibilities of both the landlord and the tenant. A lease can be oral or written. If a lease is for one year or less, an oral lease is as binding on both parties as a written lease. But the terms of an oral lease may be difficult to prove. A written lease helps avoid misunderstandings between the landlord and the tenant.
A lease for longer than one yearmust be in writing to be enforceable on both parties. A written lease must provide certain information and contain provisions set forth in the state statutes.
Whether a lease is oral or written, the landlord must give the tenant, in writing, the names and addresses of the premises' owner(s) and authorized agents, such as a building manager. There is one exception to this disclosure requirement. If the owner occupies the premises – and the premises have four or fewer dwelling units – no such written disclosure is required.
When a tenant with no written lease pays rent on a monthly basis, the tenant and the landlord must meet two requirements in terminating tenancy. First, the notice must be in writing. Second, you must give notice at least 28 days before the end of the rent-paying period.
Say you're a tenant who pays rent on the first of the month. The end of the rent-paying period is the last day of the month. In December, that would be the 31st, so you'd need to give notice by December 3 if you plan to move out by the end of December. In April, the last day would be the 30th, so you'd have to give notice by April 2, and so on.
A common mistake tenants make is to believe that all they must do is give at least 28 days notice, period. This is incorrect. You must give notice at least 28 days
before the end of your rent-paying period. In other words, if you pay rent on the first of the month, you can't try to avoid paying half of April's rent by giving notice on March 15 that you'll be leaving April 15. You'd still be responsible for all of April's rent, as your notice is not effective until April 30 – the end of the rent-paying period.
When a tenant with no written lease pays rent on a less than monthly basis, the notice to terminate must still be in writing, and it must be at least equal to the rent-paying period. Say you're a tenant who pays rent each Friday. If you want to move out Friday, April 19, you must give notice no later than the end of the day on Friday, April 12.
A written lease usually specifies an expiration date. The lease ends and the tenancy terminates on that date, unless the lease contains an automatic renewal provision. Neither the landlord nor the tenant needs to give notice about termination at the end of the lease term – unless the lease specifically requires it.
When the tenant pays rent monthly, the landlord has two options depending on the type of tenancy. These apply whether the lease is in writing or not. First, the landlord can give the tenant a notice stating that the tenant must either pay or leave within five days.
If the tenant pays within five days, he or she can continue to live on the premises. If the tenant doesn't pay within five days, the landlord can begin eviction proceedings (more on evictions later).
The second action the landlord can take is to give the tenant notice to leave within 14 days. This option can be used if the tenancy is month-to-month or if the landlord has given at least one five-day notice within the preceding 12 months. This 14-day notice doesn't give the tenant the right to pay to be able to stay.
Regardless of whether the notice if a five-day of 14-day, the landlord must serve the notice on the tenant properly. The two most common ways are: (1) The landlord might deliver a written or printed notice to the tenant, or to a member of the tenant's family who is at least 14 years old, and who is told of the contents of the notice; or (2) the landlord might send the notice, by registered or certified mail, to the tenant at the tenant's last known address.
The landlord also could choose to:
- leave the notice with any competent person apparently in charge of the rented premises, and also mail a copy by regular or other mail to the tenant's last known address;
- serve the tenant with the notice as one would serve a summons (more about a summons later); or
- affix the notice in a conspicuous place on the rented premises, and mail a copy by regular or other mail to the tenant's last known address –
if the landlord could not, with reasonable effort, give the notice to the tenant personally, or to a competent member of the tenant's family, or to a competent person apparently in charge of the rented premises.
For at-will or periodic tenancies other than year-to-year, the tenant must get the landlord's consent before subletting the leased premises or assigning a lease to another person. This rule applies even if there is no written lease. For other tenancies, including a tenancy under a lease for one year, a lease may be freely assigned or the premises sublet unless the lease expressly prohibits or restricts that right.
A tenant who subleases or assigns a lease to someone else usually remains responsible for rent payments and property damage – unless the landlord releases the original tenant from those responsibilities.
The landlord can enter at reasonable times to inspect the premises, make repairs, or show the premises to prospective tenants. The landlord usually must give 12 hours notice before entry, unless immediate entry is necessary to preserve or protect the premises, such as in case of a fire or a burst water pipe. If the landlord gives the required notice, the tenant can't refuse entry.
The landlord must keep the premises in a reasonable state of repair. If the cost of the repair is minor in relation to the rent, however, the tenant may be responsible for fixing the problem. The tenant also must pay for any damage he or she caused, including by the tenant's negligence.
Report building code violations to your local building inspector. Your landlord can't evict you for reporting such violations. If conditions are so bad that the premises are uninhabitable, you can take the landlord to court for rent abatement. See an attorney for more information.
The landlord needs to file a summons and complaint to begin eviction proceedings. The summons requires that the tenant appear in court on a specific date, at a specific time. The complaint states the landlord's claim. Usually both the summons and complaint are combined on one form, available at your county clerk of circuit court office.
The landlord fills out both parts of the document and files it with the court. A copy is then served on the tenant. The process of serving the document varies by county. In most counties, the landlord must hire a process server or law enforcement officer to deliver the document personally to the tenant. In some counties, a local court rule permits service by the clerk mailing the document to the tenant. Check with your county clerk of court about local procedures.
In court, the landlord explains his or her complaint to a judge, and the tenant responds. After hearing both sides, the judge may issue a court order requiring the tenant to vacate the premises. If the tenant refuses to leave, the county sheriff will remove the tenant and his or her belongings. The sheriff may require the landlord to pay a bond, or a money deposit, to cover the county's costs, or the sheriff may permit the landlord to handle personal belongings itself, if the lease contains certain language notifying the tenant of the same.
Yes, the landlord can evict the tenant if the landlord has received written notice about such activities from a law enforcement agency. To evict the tenant, the landlord must give the tenant five days notice to vacate the premises.
Yes. The time of year has no legal effect on eviction. But some circumstances may affect eviction proceedings. For instance, special requirements may apply to tenants of federally subsidized housing and housing for the elderly.
Usually not. But a judge may consider such circumstances.
The landlord has a right to withhold a security deposit for any of several reasons, such as if the tenant:
- damaged the premises beyond ordinary wear and tear;
- caused waste or neglect of the premises (such as leaving hot water running in the bathtub for days);
- unpaid rent;
- unpaid utility services, whether the landlord provided these or the tenant paid the utility companies directly;
- unpaid mobile home monthly municipal permit fees that the local government assessed against the tenant; or
- for other reasons listed in a nonstandard rental provision, which goes along with, but is a separate document from, he lease.
The landlord must give reasons in writing for refusing to return all or part of the security deposit. State law requires the landlord to provide this information within 21 days of the tenant vacating. The tenant must give the landlord his or her new address.
Say that 21 days go by since the tenant vacated the premises, and the landlord still hasn't returned the security deposit or provided written reasons for withholding all or part of it. Then the tenant can take the landlord to small claims court. What's more, the tenant can ask the court to double the security deposit amount, as a penalty for not meeting the 21-day time limit.
On the other hand, the landlord may provide, within the 21-day time frame, written reasons for withholding all or part of the security deposit. But the tenant may disagree with the landlord's decision. Here, too, the tenant can take the landlord to small claims court to try to recover the deposit. The court may decide the landlord owes the tenant money. If the court decides that the landlord improperly withheld all or a portion of the security deposit, the court must award a tenant who has retained an attorney the reasonable cost of the attorney's services.
Unless there's a written agreement to the contrary, a landlord can take various actions in this situation.
The landlord pay presume that the tenant has abandoned the personal property and may dispose of it in any manner the landlord determiners is appropriate. If any prescription medication or medical equipment is left behind, the landlord must hold it for 7 days and must return it to the tenant promptly upon request.
The landlord can also store the tenant's personal property, allowing the tenant to retrieve the property after paying the cost of removal and storage. The landlord must give the tenant written notice of the daily storage charge, the location of the property, and the person to contact to pay the charges and retrieve the property, within 10 days after the charges begin.
If the tenant contacts the landlord to retrieve the property, and offers to pay the removal and storage charges, the landlord may not withhold the property for unpaid rent or other charges the tenant may owe. The landlord would have to separately sue the tenant in court for any such charges.
Within the storage option, if the tenant doesn't claim the property within 30 days, the landlord may sell the property. The proceeds of the sale would go to the tenant, minus any costs the landlord had for storing the property, or holding the sale. If landlord tries to mail the proceeds to the tenant but the mail is returned and the landlord does not have a current address for tenant, and the tenant doesn't contact the landlord to claim the sale proceeds within 60 days, the landlord must send the balance of the proceeds to the State Department of Administration for deposit.
You can get a copy of the laws and "The Wisconsin Way: A Guide for Landlords and Tenants" from the Wisconsin Department of Agriculture, Trade and Consumer Protection. Call toll free at (800) 422-7128. Other information is available at
datcp.wi.gov. Your public library also has copies of the Wisconsin Statutes. Check the index under "Landlord and Tenant." Additional information is available at the State Bar of Wisconsin's website at
www.wisbar.com.
The State Bar publishes a series of online consumer pamphlets addressing common legal issues that many people face sooner or later in their lives, such as buying a home, going through a divorce or small claims action, and preparing a will or estate plan. Each pamphlet conveys basic legal information and answers frequently asked questions in easy-to-understand language.
