2011 WISCONSIN ACT
143
An Act
to repeal
704.05 (5) (a) 3. and 704.05 (5) (d);
to renumber
704.44 (1), 704.44 (2), 704.44 (3) and 704.44 (4);
to renumber and amend
704.44 (5);
to consolidate, renumber and amend
704.05 (5) (a) (intro.) and 1.;
to amend
321.62 (15) (a), 704.03 (1), 704.05 (1), 704.05 (5) (title), 704.05 (5) (a) 2., 704.05 (5) (c), 704.07 (1), 704.11, 704.27 and 704.44 (intro.);
to repeal and recreate
704.05 (5) (a) (title); and
to create
66.1010, 704.02, 704.05 (5) (am), 704.05 (5) (b), 704.05 (5) (bf), 704.05 (5) (cm), 704.07 (2) (bm), 704.08, 704.17 (2) (d), 704.28, 704.44 (2m), 704.44 (3m), 704.44 (4m), 704.44 (5m), 704.44 (6), 704.44 (7), 704.44 (8), 704.44 (9), 704.95 and 799.40 (1m) of the statutes;
relating to:
miscellaneous landlord-tenant provisions and prohibiting a local government from imposing a moratorium on eviction actions.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Section
1
.
66.1010 of the statutes is created to read:
66.1010
Moratorium on evictions.
(1)
In this section, "political subdivision" has the meaning given in s. 66.1011 (1m) (e).
(2)
A political subdivision may not enact or enforce an ordinance that imposes a moratorium on a landlord from pursuing an eviction action under ch. 799 against a tenant of the landlord's residential or commercial property.
(3)
If a political subdivision has in effect on the effective date of this subsection .... [LRB inserts date], an ordinance that is inconsistent with sub. (2), the ordinance does not apply and may not be enforced.
Section
2
.
321.62 (15) (a) of the statutes is amended to read:
321.62
(15)
(a) Notwithstanding
ss. 704.05 (5) and
s.
704.90, no person may enforce a lien for storage of any household goods, furniture, or personal effects of a service member during the period in which the service member is in state active duty and for 90 days after the member's completion of state active duty, except as permitted by a court order under par. (b).
Section
3
.
704.02 of the statutes is created to read:
704.02
Severability of rental agreement provisions.
The provisions of a rental agreement are severable. If any provision of a rental agreement is rendered void or unenforceable by reason of any statute, rule, regulation, or judicial order, the invalidity or unenforceability of that provision does not affect other provisions of the rental agreement that can be given effect without the invalid provision.
Section
4
.
704.03 (1) of the statutes is amended to read:
704.03
(1)
Original agreement.
A
Notwithstanding s. 704.02, a
lease for more than a year, or a contract to make such a lease, is not enforceable unless it meets the requirements of s. 706.02 and in addition sets forth the amount of rent or other consideration, the time of commencement and expiration of the lease
,
and a reasonably definite description of the premises, or unless a writing
, including by means of electronic mail or facsimile transmission,
signed by the landlord and the tenant sets forth the amount of rent or other consideration, the duration of the lease, and a reasonably definite description of the premises and the commencement date is established by entry of the tenant into possession under the writing. Sections 704.05 and 704.07 govern as to matters within the scope of such sections and not provided for in such written lease or contract.
Section
5
.
704.05 (1) of the statutes is amended to read:
704.05
(1)
When section applicable.
So far as applicable, this section governs the rights and duties of the landlord and tenant in the absence of any inconsistent provision in writing signed by both the landlord and the tenant.
This
Except as otherwise provided in this section, this
section applies to any tenancy.
Section
6
.
704.05 (5) (title) of the statutes is amended to read:
704.05
(5)
(title)
Storage or disposition
Disposition
of personalty left by tenant.
Section
7
.
704.05 (5) (a) (title) of the statutes is repealed and recreated to read:
704.05
(5)
(a) (title)
At the landlord's discretion.
Section
8
.
704.05 (5) (a) (intro.) and 1. of the statutes are consolidated, renumbered 704.05 (5) (a) 1. and amended to read:
704.05
(5)
(a) 1. If a tenant removes from the premises and leaves personal property, the landlord may
do all of the following: 1. Store the personalty, on or off the premises, with a lien on the personalty for the actual and reasonable cost of removal and storage or, if stored by the landlord, for the actual and reasonable value of storage. The landlord shall give written notice of the storage to the tenant within 10 days after the charges begin. The landlord shall give the notice either personally or by ordinary mail addressed to the tenant's last-known address and shall state the daily charges for storage. The landlord may not include the cost of damages to the premises or past or future rent due in the amount demanded for satisfaction of the lien. The landlord may not include rent charged for the premises in calculating the cost of storage. Medicine and medical equipment are not subject to the lien under this subdivision, and
presume, in the absence of a written agreement between
the landlord
shall promptly return them to
and
the tenant
upon request
to the contrary, that the tenant has abandoned the personal property and may, subject to par. (am), dispose of the abandoned personal property in any manner that the landlord, in its sole discretion, determines is appropriate
.
Section
9
.
704.05 (5) (a) 2. of the statutes, as affected by
2011 Wisconsin Act 32
, is amended to read:
704.05
(5)
(a) 2.
Give the tenant notice, personally or by ordinary mail addressed to the tenant's last-known address, of the landlord's intent to dispose of the personal property by sale or other appropriate means if the property is not repossessed by the tenant. If the tenant fails to repossess the property within 30 days after the date of personal service or the date of the mailing of the notice,
If
the landlord
may dispose
disposes
of the property by private or public sale
or any other appropriate means. The
, the
landlord may
deduct from
send
the proceeds of
the
sale
minus
any costs of sale and any storage charges if the landlord has first stored the personalty
under subd. 1. If the proceeds minus the costs of sale and minus any storage charges are not claimed within 60 days after the date of the sale of the personalty, the landlord is not accountable to the tenant for any of the proceeds of the sale or the value of the property. The landlord shall send the proceeds of the sale minus the costs of the sale and minus any storage charges
to the department of administration for deposit in the appropriation under s. 20.505 (7) (h).
Section
10
.
704.05 (5) (a) 3. of the statutes is repealed.
Section
11
.
704.05 (5) (am) of the statutes is created to read:
704.05
(5)
(am)
Exception for medical items.
If the personal property that the tenant leaves behind is prescription medication or prescription medical equipment, the landlord shall hold the property for 7 days from the date on which the landlord discovers the property. After that time, the landlord may dispose of the property in the manner that the landlord determines is appropriate, but shall promptly return the property to the tenant if the landlord receives a request for its return before the landlord disposes of it.
Section
12
.
704.05 (5) (b) of the statutes is created to read:
704.05
(5)
(b)
Notice required if property is a manufactured or mobile home or a vehicle.
1. In this paragraph:
a. "Manufactured home" has the meaning given in s. 101.91 (2).
b. "Mobile home" has the meaning given in s. 101.91 (10), but does not include a recreational vehicle, as defined in s. 340.01 (48r).
c. "Titled vehicle" means a vehicle, as defined in s. 340.01 (74), for which a certificate of title has been issued by any agency of this state or another state.
2. If the abandoned personal property is a manufactured home, mobile home, or titled vehicle, before disposing of the abandoned property the landlord shall give notice of the landlord's intent to dispose of the property by sale or other appropriate means to all of the following:
a. The tenant, personally or by regular or certified mail addressed to the tenant's last-known address.
b. Any secured party of which the landlord has actual notice, personally or by regular or certified mail addressed to the secured party's last-known address.
Section
12f
.
704.05 (5) (bf) of the statutes is created to read:
704.05
(5)
(bf)
Notice that landlord will not store property.
If the landlord does not intend to store personal property left behind by a tenant, except as provided in par. (am), the landlord shall provide written notice to a tenant when the tenant enters into, and when the tenant renews, a rental agreement that the landlord will not store any items of personal property that the tenant leaves behind when the tenant removes from the premises, except as provided in par. (am). Notwithstanding pars. (a), (am), and (b), if the landlord does not provide to a tenant the notice required under this paragraph, the landlord shall comply with s. 704.05, 2009 stats., with respect to any personal property left behind by the tenant when the tenant removes from the premises.
Section
13
.
704.05 (5) (c) of the statutes is amended to read:
704.05
(5)
(c)
Rights of 3rd persons.
The landlord's
lien and
power to dispose as provided by this subsection
apply
applies
to any property left on the premises by the tenant, whether owned by the tenant or by others.
That lien has priority over any ownership or security interest, and the
The
power to dispose under this subsection applies notwithstanding
any
rights of others existing under any claim of ownership or security interest
, but is subject to s. 321.62
. The tenant or any secured party has the right to redeem the property at any time before the landlord has disposed of it or entered into a contract for its disposition by payment of
the landlord's charges under par. (a) for removal, storage, disposition and arranging for the sale
any expenses that the landlord has incurred with respect to the disposition of the property
.
Section
14
.
704.05 (5) (cm) of the statutes is created to read:
704.05
(5)
(cm)
Inapplicability to self-storage facilities.
This subsection does not apply to a lessee of a self-storage unit or space within a self-storage facility under s. 704.90.
Section
15
.
704.05 (5) (d) of the statutes is repealed.
Section
16
.
704.07 (1) of the statutes is amended to read:
704.07
(1)
Application of section.
This section applies to any nonresidential tenancy if there is no contrary provision in writing signed by both parties and to all residential tenancies. An agreement to waive the requirements of this section in a residential tenancy
, including an agreement in a rental agreement,
is void. Nothing in this section is intended to affect rights and duties arising under other provisions of the statutes.
Section
17
.
704.07 (2) (bm) of the statutes is created to read:
704.07
(2)
(bm) A landlord shall disclose to a prospective tenant, before entering into a rental agreement with or accepting any earnest money or security deposit from the prospective tenant, any building code or housing code violation to which all of the following apply:
1. The landlord has actual knowledge of the violation.
2. The violation affects the dwelling unit that is the subject of the prospective rental agreement or a common area of the premises.
3. The violation presents a significant threat to the prospective tenant's health or safety.
4. The violation has not been corrected.
Section
18
.
704.08 of the statutes is created to read:
704.08
Information check-in sheet.
A landlord shall provide to a new residential tenant when the tenant commences his or her occupancy of the premises a standardized information check-in sheet that contains an itemized description of the condition of the premises at the time of check-in. The tenant shall be given 7 days from the date the tenant commences his or her occupancy to complete the check-in sheet and return it to the landlord. The landlord is not required to provide the information check-in sheet to a tenant upon renewal of a rental agreement. This section does not apply to the rental of a plot of ground on which a manufactured home, as defined in s. 704.05 (5) (b) 1. a., or a mobile home, as defined in s. 704.05 (5) (b) 1. b., may be located.
Section
19
.
704.11 of the statutes is amended to read:
704.11
Lien of landlord.
Except as provided in ss.
704.05 (5),
704.90 and 779.43 or by express agreement of the parties, the landlord has no right to a lien on the property of the tenant; the common-law right of a landlord to distrain for rent is abolished.
Section
20
.
704.17 (2) (d) of the statutes is created to read:
704.17
(2)
(d) This subsection does not apply to week-to-week or month-to-month tenants.
Section
21
.
704.27 of the statutes is amended to read:
704.27
Damages for failure of tenant to vacate at end of lease or after notice.
If a tenant remains in possession without consent of the tenant's landlord after expiration of a lease or termination of a tenancy by notice given by either the landlord or the tenant, or after termination by valid agreement of the parties, the landlord
may
shall, at the landlord's discretion,
recover from the tenant damages suffered by the landlord because of the failure of the tenant to vacate within the time required. In absence of proof of greater damages, the landlord
may
shall
recover as
minimum damages twice the rental value apportioned on a daily basis for the time the tenant remains in possession. As used in this section, rental value means the amount for which the premises might reasonably have been rented, but not less than the amount actually paid or payable by the tenant for the prior rental period, and includes the money equivalent of any obligations undertaken by the tenant as part of the rental agreement, such as payment of taxes, insurance and repairs.
Nothing in this section prevents a landlord from seeking and recovering any other damages to which the landlord may be entitled.
Section
22
.
704.28 of the statutes is created to read:
704.28
Withholding from and return of security deposits. (1)
Standard withholding provisions.
When a landlord returns a security deposit to a tenant after the tenant vacates the premises, the landlord may withhold from the full amount of the security deposit only amounts reasonably necessary to pay for any of the following:
(a) Except as provided in sub. (3), tenant damage, waste, or neglect of the premises.
(b) Unpaid rent for which the tenant is legally responsible, subject to s. 704.29.
(c) Payment that the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent.
(d) Payment that the tenant owes for direct utility service provided by a government-owned utility, to the extent that the landlord becomes liable for the tenant's nonpayment.
(e) Unpaid monthly municipal permit fees assessed against the tenant by a local unit of government under s. 66.0435 (3), to the extent that the landlord becomes liable for the tenant's nonpayment.
(f) Any other payment for a reason provided in a nonstandard rental provision document described in sub. (2).
(2)
Nonstandard rental provisions.
Except as provided in sub. (3), a rental agreement may include one or more nonstandard rental provisions that authorize the landlord to withhold amounts from the tenant's security deposit for reasons not specified in sub. (1) (a) to (e). Any such nonstandard rental provisions shall be provided to the tenant in a separate written document entitled "NONSTANDARD RENTAL PROVISIONS." The landlord shall specifically identify and discuss each nonstandard rental provision with the tenant before the tenant enters into a rental agreement with the landlord. If the tenant signs a nonstandard rental provision, it is rebuttably presumed that the landlord has specifically identified and discussed the nonstandard rental provision with the tenant and that the tenant has agreed to it.
(3)
Normal wear and tear.
This section does not authorize a landlord to withhold any amount from a security deposit for normal wear and tear, or for other damages or losses for which the tenant cannot reasonably be held responsible under applicable law.
(4)
Timing for return.
A landlord shall deliver or mail to a tenant the full amount of any security deposit paid by the tenant, less any amounts that may be withheld under subs. (1) and (2), within 21 days after any of the following:
(a) If the tenant vacates the premises on the termination date of the rental agreement, the date on which the rental agreement terminates.
(b) If the tenant vacates the premises before the termination date of the rental agreement, the date on which the tenant's rental agreement terminates or, if the landlord rerents the premises before the tenant's rental agreement terminates, the date on which the new tenant's tenancy begins.
(c) If the tenant vacates the premises after the termination date of the rental agreement, the date on which the landlord learns that the tenant has vacated the premises.
(d) If the tenant is evicted, the date on which a writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first.
Section
23
.
704.44 (intro.) of the statutes is amended to read:
704.44
Rental
Residential rental
agreement that
restricts access to
contains
certain
services
provisions
is void.
(intro.)
A
Notwithstanding s. 704.02, a residential
rental agreement is void and unenforceable if it
allows
does any of the following:
(1m) Allows
a landlord
in a residential tenancy
to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services:
Section
24
.
704.44 (1) of the statutes is renumbered 704.44 (1m) (a).
Section
25
.
704.44 (2) of the statutes is renumbered 704.44 (1m) (b).
Section
26
.
704.44 (2m) of the statutes is created to read:
704.44
(2m)
Authorizes the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799.
Section
27
.
704.44 (3) of the statutes is renumbered 704.44 (1m) (c).
Section
28
.
704.44 (3m) of the statutes is created to read:
704.44
(3m)
Provides for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise waives the landlord's obligation to mitigate damages as provided in s. 704.29.
Section
29
.
704.44 (4) of the statutes is renumbered 704.44 (1m) (d).
Section
30
.
704.44 (4m) of the statutes is created to read:
704.44
(4m)
Requires payment by the tenant of attorney fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This subsection does not prevent a landlord or tenant from recovering costs or attorney fees under a court order under ch. 799 or 814.
Section
31
.
704.44 (5) of the statutes is renumbered 704.44 (1m) (e) and amended to read:
704.44
(1m)
(e) Threaten to take any action under
subs. (1) to (4)
pars. (a) to (d)
.
Section
32
.
704.44 (5m) of the statutes is created to read:
704.44
(5m)
Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.
Section
33
.
704.44 (6) of the statutes is created to read:
704.44
(6)
States that the landlord is not liable for property damage or personal injury caused by negligent acts or omissions of the landlord. This subsection does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.
Section
34
.
704.44 (7) of the statutes is created to read:
704.44
(7)
Imposes liability on a tenant for any of the following:
(a) Personal injury arising from causes clearly beyond the tenant's control.
(b) Property damage caused by natural disasters or by persons other than the tenant or the tenant's guests or invitees. This paragraph does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.
Section
35
.
704.44 (8) of the statutes is created to read:
704.44
(8)
Waives any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition or to maintain the premises during the tenant's tenancy.
Section
35m
.
704.44 (9) of the statutes is created to read:
704.44
(9)
Allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.
Section
36
.
704.95 of the statutes is created to read:
704.95
Practices regulated by the department of agriculture, trade and consumer protection.
Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under s. 100.20. However, the department of agriculture, trade and consumer protection may not issue an order or promulgate a rule under s. 100.20 that changes any right or duty arising under this chapter.
Section
37
.
799.40 (1m) of the statutes is created to read:
799.40
(1m)
Acceptance of rent.
If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may not be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant's tenancy.
Section
38
.
Initial applicability.
(1)
Disposal of property.
(a)
At landlord's discretion.
The treatment of sections 321.62 (15) (a), 704.05 (5) (title), (a) (title), (intro.), 1., 2., and 3., (am), (b), (c), and (d), and 704.11 of the statutes first applies to property left behind by a tenant on the effective date of this paragraph.
(b)
Notice that property will not be stored.
The treatment of section 704.05 (5) (bf) of the statutes first applies to property left behind by a tenant under a rental agreement entered into or renewed on the effective date of this paragraph.
(2)
Damages for failure to vacate.
The treatment of section 704.27 of the statutes first applies to actions for damages, including eviction actions, that are commenced on the effective date of this subsection.
(3)
Return of security deposits.
(a)
Timing for return.
Except as provided in paragraph (b), the treatment of section 704.28 (4) (b) of the statutes first applies to tenants vacating before the termination date of a rental agreement who vacate the premises on the effective date of this paragraph.
(b)
Inconsistent provision.
If a rental agreement that is in effect on the effective date of this paragraph contains a provision that is inconsistent with the treatment of section 704.28 (4) (b) of the statutes, the treatment of section 704.28 (4) (b) of the statutes first applies to that rental agreement with respect to the timing of returning a security deposit upon renewal.
(4)
Severability of provisions.
The treatment of section 704.02 of the statutes first applies to rental agreements that are entered into or renewed on the effective date of this subsection.
(5)
Rental agreement void if tenancy may be terminated for crime.
The treatment of section 704.44 (9) of the statutes first applies to rental agreements that are entered into or renewed on the effective date of this subsection.
