Substandard housing damages the health of children and families in our community, traps low-income renters in cycles of poverty, and exacerbates racial inequities. Mold, dust, and infestations from mice, rats, and cockroaches can trigger asthma attacks and cause other respiratory problems.^[1]

Unsafe and unstable housing can contribute to chronic stress, which in turn can cause various negative health outcomes. Radon, carbon monoxide and other poisons and carcinogens can cause illness, injury or death. Damaged electrical wiring and missing or faulty smoke detectors can lead to fire, injury, and even death.^​[2] Moreover, research has shown that poverty, poor housing, and poor health are all interconnected.^[3]

Thus, substandard housing is not merely a symptom but also a cause of poverty. Unfortunately, these burdens are borne disproportionately by communities of color.

Insufficient Resources, Burdensome Processes

While there are laws on the books that protect tenants, currently there are insufficient resources and burdensome processes available to enforce these laws. These laws are routinely disregarded by landlords in the low-income housing market.

Childhood lead poisoning is an illustrative example.

Childhood lead poisoning from old housing stock. Lead damages the brain and other bodily systems—and its effects can last a lifetime. While lead can hurt anyone, the health effects of lead exposure are particularly damaging for children under six.

Lead poisoning among children is typically caused by swallowing or breathing in dust from lead-based paint in homes that were built before 1978, according to the Wisconsin Department of Health Services (DHS). In Wisconsin, 58% of housing was built prior to 1978 according to the National Center for Health Housing.

According to DHS, between 2018 and 2021, Wisconsin’s percentage of children who tested positive for lead poisoning was 3.64%. In Milwaukee County, that number was almost double – 6.25%. In areas of Milwaukee, particularly low-income Black and Latine​ communities, rates of childhood lead poisoning can be over six times the rate of the rest of the state.

Lead exposure in childhood can cause damage to the brain and nervous system, slowed growth and development, learning and behavior problems, and hearing and speech problems, according to the U.S. Centers for Disease Control and Prevention.

Disclosure requirements are intended to protect renters but are difficult and burdensome for the tenant to enforce. In Wisconsin, the most robust protections for tenants fall under Wisconsin Agriculture Trade and Consumer Protections regulations (ATCP) chapter 134. Landlords are required to disclose code violations and conditions affecting habitability before signing a lease or accepting a security deposit.^[4]

These disclosure requirements are commonly disregarded and can be difficult for the tenant to prove. For instance, how would the current tenant prove that a previous tenant made complaints about a pest infestation, faulty plumbing, or faulty heat, thus showing the landlord knew of an issue prior to their tenancy?

Tenants can make a complaint to the Department of Agriculture Trade and Consumer Protection, who will investigate, but cannot represent the tenant in legal action.

Federal regulations require landlords to disclose any known information or provide any records or reports about lead-based paint or lead-based hazards in most pre-197 homes built before 1978. This is important to note, as a lead hazard inspection report (LIRA) may have been done previously on a home.

Landlords are also required to provide a Lead Warning Statement as an attachment to the lease and give an EPA-approved pamphlet “Protect Your Family From Lead in Your Home.”^[5] If a landlord does not give these required disclosures, a tenant may make a complaint to theEnvironmental Protection Agency (EPA), but how enforcement is handled is up to the federal agency.

Promises to Repair

ATCP 134.07 requires landlords to provide a date or time period for which cleaning, repairs, or improvements are to be completed. The landlord can only fail to complete the promised work by the deadline if there is a labor stoppage, unavailable supplies, or other causes beyond the landlord’s control. The landlord must let the tenant know of the reasons for delay and provide when the work will be completed.

All promises made before the initial lease agreement must also be in writing with a copy to the tenant. The goal of this regulation is to protect tenants so they can plan accordingly.

This regulation is somewhat akin to misrepresentation. Presumably a landlord knows when they will be able to make a repair, and that information should be communicated to the tenant so they can make the best decision for their family.

For instance, if a landlord says heat will be fixed “soon” in the middle of winter but does not provide a date to expect the repair, a tenant may reasonably believe “soon” may be in a few hours or a day or two. If a tenant knew it would be a month before heat was restored in the middle of winter, that would change their analysis of whether to vacate with their family and how soon.

Who is Responsible for Repairs?

Tenants are responsible for minor repairs like changing light bulbs and cleaning their unit.

Landlords are responsible for all other portions of the premises, including systems that they implicitly or explicitly agreed to provide, such as heat, air conditions, plumbing, hot water, and electricity.^[6]

If the landlord does not make repairs promptly for which they are responsible for, and the conditions materially affect health and safety or substantially affect the tenant’s ability to use the premises, the tenant can either abate their rent or vacate without liability under a lease agreement.^[7]

When a landlord fails to make repairs, the tenant can make a complaint to their local building inspector. If a citation is issued for the property, in many cases, the cost of reinspection fees – limited by state statue^[8] – will be substantially less than the cost of the repair itself, making noncompliance the economically rational course of action for the unscrupulous landlord who is not in the community and focused solely on cash flow.

Gaps in Proactive Prevention of Unhealthy Housing

Most municipalities in Wisconsin operate with a complaint-based rental inspection program, where local building code enforcement only comes out to do an inspection when the tenant makes a complaint.

Likewise, the majority of lead hazard inspections of rental units are done only after a child is significantly poisoned. While there are laws designed to prevent landlords from retaliation, tenants can be discouraged from making complaints for fear of their landlord raising rent, starting an eviction, not renewing a lease, or reducing services.

Proactive rental inspections reduce the likelihood that renters will be evicted or punished for reporting hazards. Many municipalities, like Boston, Seattle, Syracuse and Tulsa, have proactive rental inspection programs which are intended to keep tenants safe and screen rented units for unsafe conditions.

Wisconsin statutes prohibit municipalities from implementing universal rental inspection programs. However, there is a statutory carve-out for areas “where there is evidence of blight, high rates building code complaints or violations, deteriorating property values, or increases in single-family home conversions to rental units.”^[9]

These inspections are referred to as targeted rental inspection programs, or “TRIPs.” How a municipality pays for, or prioritizes, these additional TRIPs remains unknown, as state statutes significantly limit the amount municipalities can fine property owners for building code violations.

Conclusion

Housing is a fundamental component of health for families and communities. In Wisconsin, while there are well-meaning regulations and statutes, gaps in enforcement make unhealthy housing the only option for many low-income renters.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

Endnotes

[1]See U.S. Department of Health and Human Services, The Surgeon General’s Call to Action to Promote Healthy Homes, 2009. Moreover, data from DNS and Health Compass Milwaukee show that children living in zip codes with higher rates of asthma-related code violations are also more likely to be hospitalized or go to the ER due to asthma. Talis Shelbourne, “Who wants to take a hot shower in mold?' Substandard housing promotes asthma 'triggers,' and getting help can be a nightmare,” Milwaukee Journal Sentinel, Aug. 28, 2022.

[2] Community Advocates Public Policy Institute and Human Impact Partners, Home is Where Our Health Is: Policies to Improve the Health of Renters in Milwaukee and Beyond, February 2020.

[3] Matthew Desmond, Evicted: Poverty and Profit in the American City, Crown Publishers, 2016.

[4] ATCP 134.04.

[5] 42 U.S.C. 4852d.

[6] Wis. Stat. § 704.07.

[7] For a more detailed discussion of rent abatement, see Samuel Hutchison’s article in this blog, “Tenant Rent Abatement: When Landlords Refuse to Make Necessary Repair,” Oct. 22, 2024.

[8] Wis. Stat. § 66.0104(2)(e)2.

[9] Wis. Stat. § 66.0104(2)(e)1m. See also Daphne Chen and Raquel Rutledge, “While Milwaukee Talks About It, Other Cities Find Ways to Protect Renters. Here’s How They’re Doing It.,” Milwaukee Journal Sentinel, March 16, 2023.