Section 799.40. Eviction actions.

 

(1)   When commenced. A civil action of eviction may be commenced by a person entitled to the possession of real property, or by that person's agent authorized in writing, to remove therefrom any person who is not entitled to either the possession or occupancy of such real property.

(1m)   Acceptance of rent or other payment. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed because the landlord accepts past due rent or any other payment from the tenant after serving notice of default or after commencing the action.

(2)   Joinder of other claims. The plaintiff may join with the claim for restitution of the premises any other claim against the defendant arising out of the defendant's possession or occupancy of the premises.

(3)   Exception. Nothing in this section shall affect ss. 704.09 (4) and 704.19 .

(4)   Stay of proceeding.

(a) The court shall stay the proceedings in a civil action of eviction if the tenant applies for emergency assistance under s. 49.138 . The tenant shall inform the court of the outcome of the determination of eligibility for emergency assistance. The stay remains in effect until the tenant's eligibility for emergency assistance is determined and, if the tenant is determined to be eligible, until the tenant receives the emergency assistance.

(b) The court shall stay the proceedings in a civil action of eviction against a foreclosed homeowner, as defined in s. 846.40 (1) (b) , under the circumstances and as provided in s. 846.40 (9) .

1979 c. 32 s. 66 ; 1979 c. 176 ; Stats. 1979 s. 799.40; 1991 a. 39 ; 1995 a. 289 ; 2009 a. 2 ; 2011 a. 143 ; 2013 a. 76 . Any act of the landlord that renders the premises unfit for occupancy relieves the tenant from the obligation of paying rent. Constructive eviction can only take place when the tenant abandons the premises within a reasonable time after a substantial breach of the lease. First Wisconsin Trust Co. v. L. Wiemann Co. 93 Wis. 2d 258 , 286 N.W.2d 360 (1980). Implicit in the sub. (4) mandate that a stay is required until the tenant receives the emergency assistance is a requirement that the tenant seek and find suitable permanent housing within a reasonable period of time and that the stay will remain in effect for only a reasonable period of time as determined by the judge under the circumstances in each individual case. McQuestion v. Crawford, 2009 WI App 35 , 316 Wis. 2d 494 , 765 N.W.2d 822 , 08-1096 . Eviction practice in Wisconsin. Boden. 54 MLR 298. Burden of proof required to establish defense of retaliatory eviction. 1971 WLR 939. Tenant eviction protection and takings clause. Manheim. 1989 WLR 925 (1989).