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In Wisconsin, there are specific laws to protect tenants from unfair treatment by their landlords. A lot of focus is placed on assistance for tenants, and it is certainly not misplaced, but what about landlord rights as well? The legal rights and responsibilities between landlords and tenants in Wisconsin are addressed in Chapter 704 of the state statutes. Many landlords treat their tenants with respect and set clear guidelines but still run into trouble when attempting to collect rents, keep the building safe for everyone and prevent excessive damage to their property.
What Are The Landlord's Rights When A Tenant Won't Leave In The State Of Wisconsin?
As long as proper steps are followed, a landlord can enforce their rights when a tenant is not holding up their end of the rental deal. Read on to find out five things to do when a tenant doesn't leave in Wisconsin.
1-What Kind of Lease Do You Have?
Wisconsin recognizes a few different types of leases that will influence your next steps to enforce landlord rights:
Term Lease- you and the tenant have agreed to a specific term where the tenant can reside at the unit. Typically, less than a year. The agreement can be written or oral. While Wisconsin recognizes verbal rental agreements, it is always in your best interest to have at least a few of the main points to the agreement in writing, such as how much rent will be charged and when it will be paid.
Term Lease for over one year- if the term is over one year, the agreement must be in writing. Typically, an end date is given, or a clause is included explaining what the rental agreement will become if the tenant remains, for example, a month-to-month tenancy with a lot of the same rules as the original term lease.
Month-to-month tenancy: The landlord must provide a 28-day notice to terminate the lease. If it is a periodic tenancy, week to week, for example, the landlord must give notice equivalent to one rental period, so if it is week to week, the tenant should get seven-day notice to vacate.
Tenancy At Will continues until the landlord, or the tenant terminates it. Neither party has to give any reason for termination.
The type of agreement counts when you choose what kind of notice to give the tenant. The next issue is WHY you want the tenant out of the unit.
2-Establish Why the Tenant Needs to Vacate the Property
Crime or gang-related activity-this is an "instant out" working in favor of the landlord. Suppose the local police advise you, the landlord, that the tenant or tenants have been involved in drug or gang house nuisance. The landlord could also remove a tenant for committing domestic abuse, sexual assault, or stalking. A more complex but equally powerful claim is that a tenant in the unit or their invitees or guests engages in drug-related crimes or other criminal activity. Still, it is on the landlord to prove it, and the landlord must provide compelling evidence in court.
Nonpayment of rent-if the tenant is not paying their rent. It is always good to remind the tenant that they owe unpaid rent and document all your communications to the tenant advising them that they owe rent; if they do not pay, you will have to provide notice and eventually begin the eviction process.
If you want to sell the place- Landlords decide to sell the house or building being rented out, it happens. As a landlord, you are not required to maintain a building as a rental property because the tenants don't want to look for a new place. The main issue here is reasonableness. If you have a month-to-month lease, it should not be a problem. You give the appropriate written notice that month to month it will not be renewed in the next cycle. If you have a written lease for a term, you need to wait until the term is up. If you are considering selling when you are a landlord, it is always a good idea to include a property sale clause in any lease for a year or more. The earlier you give your tenants notice that you plan to sell, the better. They may even purchase the rental from you.
Violation of terms of the lease if the tenant violates any of the lease terms other than nonpayment of rent. Some examples could include having additional people live there, significant and intentional damage to the unit, and having pets that are not allowed by the lease terms or the law (excludes emotional support animals).
3-Give the Proper Notice Based on the Lease Agreement and The Reason They Must Vacate.
You cannot simply begin the eviction process without providing notice to your tenant. If you file for eviction and the tenant appears at the eviction stating that they did not receive notice, you will not be able to get an order for eviction that day. So do not slow down the process; provide proper notice. The notice depends on your lease type and why you require the tenant to leave.
Month to month tenancy or periodic tenancy- if the notice is for nonpayment of rent, the landlord can give a five-day notice to cure or vacate or a 14-day notice to pay or vacate. If the landlord wants to end the tenancy, the landlord can provide a 28-day notice to vacate for the month to month, periodic length of notice for the periodic tenancy, for example, week to week, you give a seven-day notice. You do not need a reason to terminate these two tenancies.
Term lease for one year-if the tenant has not paid rent, a five-day notice to cure or vacate is required. If the tenant already has one five-day notice in a calendar year and fails to pay rent, you can give a 14-day notice to vacate. The same rules apply for violation of the terms of the lease. If the lease is ending and there is no automatic renewal in the lease, you do not have to provide any notice, and the tenant must be out when the lease ends.
Term lease for more than one year- the landlord must provide a 30-day notice to cure or vacate for nonpayment of rent or violation of the lease. The landlord does not have to provide notice if the lease is ending if there is no automatic renewal clause in the lease.
Notice for drug or gang-related activity; the landlord can serve a five-day notice to vacate.
4-Begin the Eviction Process
A tenant can only be removed from the unit if the landlord has an eviction order: no eviction order, no forced vacating of the unit.
The landlord must have legal cause to evict a tenant early before the lease expires. The landlord must retain the proof of proper notice and file it with the small claims court complaint asking the court for a judicial eviction. Once the paperwork is filed, the landlord must have the tenant served with the paperwork to satisfy the due process. The local sheriff's department will be able to serve the paperwork for you. It is always best to have an independent party serve the paperwork so that service becomes less of a question. The sheriff's department should be able to complete an affidavit of service once it is accomplished. A fight with a tenant over whether or not they were properly served could slow down the eviction process and make it harder for you to reach your goal of getting the tenant out of the building or unit.
A hearing date will be set for the eviction, and you must attend. Ideally, the court will enter an order evicting the tenant. At this point, you now have the right to have the tenant removed from the property if they are refusing to vacate. You cannot remove the tenant yourself, and you must wait for law enforcement. It is illegal for a landlord to remove a tenant from the rental premises personally. You could fight a lawsuit from the former tenant if you try. A law enforcement officer must remove the tenant from the property. If the tenant leaves personal property on the premises, you must first check the lease to see if there is any clause regarding abandoned property by the tenant. If the lease says you can throw out their property, you are free to do so unless it is medication. If the tenant left prescription medication behind, you must hold it for seven days. If there is nothing in the lease about an abandoned property by the tenant, you must hold it for seven days before you dispose of it. For more information read our article An In-Depth Guide to the Wisconsin Eviction Process
5 - Evicted but Still Won't Leave?
When a tenant has been evicted and still won't leave, they become what is known as a holdover tenant. At this point, a landlord is entitled to what is known as holdover damages. In order to get holdover damages, the landlord has to show the court the date the tenancy terminated and do the math from that date onward. If you have a holdover tenant, you can contact law enforcement to remove them as long as you have an eviction order.
Landlords have rights in the state of Wisconsin, and you must understand your rights and responsibilities under the relevant law if you are a landlord or you are thinking of becoming a landlord. If you are a landlord and having problems with your tenant or if you want to start renting out properties, it is a good idea to consult with an experienced Wisconsin landlord-tenant law attorney. Feel free to give O'Flaherty Law a call, and our landlord-tenant attorneys would be happy to help you.