Tenant Defenses to Evictions in Wisconsin

If you're a renter getting evicted in Wisconsin, you need to learn if you have legal grounds to fight your eviction. Here's how.

In Wisconsin, a landlord can evict a tenant for a variety of reasons, such as tenant nonpayment of rent or violation of rental or lease agreement term. Depending on the circumstances, a tenant facing an eviction may have the legal grounds, or a defense, to challenge the eviction.

This article will explore the basic eviction procedures in Wisconsin and the most common defenses available to tenants who are being evicted for not paying rent or for violating their lease or rental agreement

Eviction Procedures in Wisconsin

Evictions in Wisconsin are regulated by state law, which sets out the rules and procedures that landlords and tenants must follow (see Wis. Stat. Ann. § § 704.01 to 704.50). If a tenant fails to pay rent or violates a portion of the lease, the landlord must first give the tenant notice and an opportunity to fix the deficiency. If the tenant does not fix the problem, then the landlord must receive a court order to actually evict the tenant. It is very important that the landlord gives the tenant notice and an opportunity to correct the problem before proceeding to court.

Notice Requirements for Failure to Pay Rent

If a tenant fails to pay rent on time, then the landlord must give the tenant a five-day notice to either pay the rent or vacate the premises. The time starts running from the date of the notice. If the tenant still does not pay rent within the five-day period, then the tenancy is terminated and the landlord can proceed to court to receive an eviction order. The landlord cannot proceed with the eviction, however, if the tenant pays the rent within the specified time period. If the tenant fails to pay rent again within one year of receiving the first notice, then the landlord must give the tenant a 14-day notice to vacate the premises before proceeding with an eviction. The landlord does not need to give the tenant an opportunity to pay the rent a second time (see Wis. Stat. Ann. § 704.17(2)(a)).

Notice Requirements for Violating the Lease

A tenant must follow the terms set forth in the lease or rental agreement. If the tenant violates any part of the lease, then the landlord must give the tenant a notice that allows the tenant either five days to fix the violation or vacate the premises. If the tenant fixes the violation (or makes repairs, if the tenant has damaged the rental unit), the landlord cannot proceed with an eviction. If the tenant violates the lease again, whether the same or a different condition, within one year of the first violation, the landlord can then give the tenant a 14-day notice to vacate the premises. If the tenant does not move out, then the landlord can proceed with the eviction (see Wis. Stat. Ann. § 704.17(2)(b)).

Lease violations include having noisy parties during regulated quiet hours, having pets when none are allowed, or parking in an unauthorized parking space.

Eviction Process in Wisconsin

A landlord can file an eviction claim in small claims court after the tenant fails to either pay rent, fix the lease violation, or move out of the property within the five-day time period. The landlord must file a summons and complaint in the small claims court of the county where the rental property is located. The tenant will receive a copy of the summons and complaint, and the summons will have a date and time for a hearing before a judge (see Wis. Stat. Ann. § § 799.40–42). A tenant who wishes to make any defenses against the eviction--that is, to fight the eviction--must file a notice called an answer with the court (see Wis. Stat. Ann. § 799.43). At the hearing, the judge will consider both the landlord's complaint and the tenant's answer and then make a ruling regarding the eviction.

Eviction Defenses Available to Tenants in Wisconsin

A tenant who chooses to fight an eviction in Wisconsin may have several defenses available to them.

Landlord Used "Self-Help" Procedures to Evict Tenant

A landlord must receive permission from the court to evict a tenant. The landlord cannot resort to "self-help" measures, such as shutting off utilities or changing locks on the doors of the rental unit (see Wis. Adm. Code § ATCP 134.09 (7)). If the landlord does attempt to force a tenant out of a rental unit through such means and does not have a court order, then the tenant can sue the landlord for damages. For more information regarding "self-help" evictions in Wisconsin, see the Nolo article Illegal Eviction Procedures in Wisconsin.

Landlord Did Not Evict the Tenant Using Proper Procedures

A landlord must carefully follow all the rules set forth in the Wisconsin state law regarding evictions. For example, if a landlord files an eviction case in small claims court but hasn't given the tenant written notice to pay the rent or leave, then the tenant could use lack of notice as a defense against the eviction. Similarly, if the landlord does give written notice to the tenant, but only gives the tenant three days to fix a lease violation or pay rent, instead of the five days required by law, the tenant could use this as a defense in fighting the eviction. This type of defense does not completely stop a justified eviction; it merely delays it. The landlord would be required to stop the eviction action and give the tenant the required proper notice. The landlord would then be able to proceed with the eviction case if the tenant still did not pay rent or fix the lease violation.

Tenant Is Evicted for Not Paying Rent

A tenant may have a few defenses available if being evicted for not paying rent.

Tenant Paid Rent in Full

After a tenant fails to pay rent on time, a landlord is required to give the tenant five days to either pay the rent or vacate the rental unit. If the tenant pays the rent during this five-day period, the landlord cannot proceed with the eviction lawsuit (see Wis. Stat. Ann. § 704.17(2)(a)). If the tenant does pay rent during the five days, the tenant should get a time-stamped receipt to prove the rent payment was received within the proper time frame. Then, if the landlord still proceeds with the eviction lawsuit, the tenant can use the time-stamped receipt as a defense against the eviction.

Landlord Failed to Properly Maintain the Rental Unit

Wisconsin law requires a landlord to reasonably repair a rental unit, as long as the tenant did not purposefully or negligently cause damage to the rental unit. This means the landlord must:

  • maintain in good repair everything the landlord either expressly or impliedly promised to the tenant, including heat and water, as well as things such as air conditioning or an elevator (if such things are included with the rental unit)
  • make all necessary structural repairs to the rental unit
  • maintain in good repair plumbing, electrical wiring, machinery, or equipment found on the premises, and
  • comply with all local housing codes.

See Wis. Stat. Ann. § 704.07(2)(a)for details.

If the landlord fails to properly maintain the rental unit in such a manner or if the rental unit becomes damaged by fire, water, or another casualty and the landlord does not promptly fix the damage, the tenant has a few options:

  • The tenant can move out of the rental unit. If the tenant chooses this option, the tenant would no longer have to keep paying rent and the landlord would have to refund any prepaid rent back to the tenant. The landlord would not be able to sue the tenant for unpaid rent.
  • The tenant can withhold a portion of the rent, but the tenant is not authorized to withhold rent in full.

See Wis. Stat. Ann. § 704.07(4).

If the landlord fails to make necessary repairs and the tenant does not wish to move out of the rental unit, the best practice for the tenant would be to seek the advice of an attorney or go directly to court for an order requiring the landlord to make the repairs and specifying how much rent the tenant should be paying in the meantime. If the landlord tries to evict the tenant because the tenant is not paying the full amount of rent, the tenant can use evidence of failure to maintain the rental property as a defense against the eviction.

Tenant Is Evicted for Violating the Lease Agreement

A landlord must provide a tenant an opportunity to correct a lease violation before proceeding with an eviction. The landlord must give the tenant five days to either fix the lease violation or move out of the rental property. If the tenant fixes the lease violation within the five-day time period, the landlord cannot proceed with the eviction. The tenant can use evidence of the lease violation being fixed as a defense against the eviction, if the landlord proceeds with an eviction lawsuit anyway (see Wis. Stat. Ann. § 704.17(2)(b)).

Tenant Is Evicted Based on Discrimination

The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition to the protections given under the federal Fair Housing Act, the Wisconsin Fair Housing Law also makes it illegal for a landlord to discriminate based on color, sexual orientation, marital status, status as a victim of domestic abuse, sexual assault, or stalking, lawful source of income, age, or ancestry. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense to the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Does It Make Sense to Fight an Eviction?

Challenging an eviction is not always a tenant's best option. A tenant who lose might have to pay the landlord's court and attorney's fees, and could also receive a negative credit rating and be turned down for future housing. The best option for the tenant might be to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate.com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.

Resources for Tenants in Wisconsin

Wisconsin has a few legal aid organizations available to those who qualify based on income, such as Legal Action of Wisconsin this organization also publishes a Tenant Sourcebook with useful information on tenant rights in the state. Some of the legal aid websites also offer free legal information, such as Wisconsin Judicare. Tenants who live in federally assisted housing should also look at the tenant resource page at HUD.gov.

Local courts may also be a good source of information. Eviction cases in Wisconsin are filed in the small claims court of the county where the rental property is located. The Wisconsin court system provides the booklet Basic Guide to Wisconsin Small Claims Actions as a reference to how the small claims court works. In addition, the Wisconsin court system also provides a guide to the Basic Steps for Handling a Small Claims Case for Eviction.

Several counties also provide specific guides to filing evictions claims within a particular county, including Milwaukee County, Dane County, and Brown County.

When to Hire an Experienced Lawyer

If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Lawyer.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com. Also see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo) for more detailed information.

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