Defending eviction cases often can be frustrating, as Wisconsin is not a tenant-friendly state. Unlike other states like New York or California, repair-and-deduct is not allowed. And in a nonpayment of rent situation, it is almost impossible to find a legal defense.
Therefore, as an eviction attorney, I become a bit defensive when the tenants are delinquent. It is very hard to find valid legal defenses when clients are behind without rent abatement or a rent withholding program.
Recently, I had a case like that. A client came for her upcoming eviction case. She had multiple issues in the property since she moved in. The Department of Neighborhood Services (DNS) was already involved, and issued a report for a housing code violation, but she was not in any program for rent abatement or withholding.
While reviewing her case, I discovered that the client had been delinquent for a long time, and the five-day notice had a matching balance from the ledger (assuming that the ledger was correct). At that moment, I thought that I could not defend this client. The client claimed that it was retaliation, but from my previous experience, I knew that it would be hard to claim retaliatory eviction when the tenant was delinquent.
While talking to the litigation director at my office, however, I realized that it would depend on how I could frame the case.
Framing the Case
According to the Wis. Stat. section 704.45(1), “a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises … if … 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 property (emphasis added).
Therefore, a landlord cannot file an eviction in retaliation when the tenant made a good faith complaint to DNS. It is true that the same statue also reads that “a landlord may bring an action for possession of the premises if the tenant has not paid rent other than a rent increase prohibited by sub.(1).”1
But, in my client’s situation, she had been working with the landlord to catch up with the balance, and was paying her rent. Only when the housing code violation situation became serious did the landlord give her a five-day notice.
The focus should be on the “but-for” element of the statute: since the landlord had been fine with the delinquent amount and had been working with the tenant, and had only filed an eviction when there was a DNS complaint, it became possible to argue that it was retaliatory eviction.
It is true that my client had been delinquent, but if the circumstances show that the landlord would not have filed an eviction “but for” the tenant’s complaint, then at least it is a valid defense that the eviction was retaliatory.
This is still an on-going case, so I will have to see if the court will accept my framing. However, I realize that I should not be so defensive, even when the tenant is delinquent. Sometimes, our own experience limits our boundaries and possibilities – but sometimes there can be a defense in almost impossible-looking cases, as well.
1 Wis. Stat. §704.45(2)