Around March 1, 2009 or so, Milwaukee County court commissioners began dismissing eviction lawsuits that were based on 5 day notices that included any amounts other than “rent.”
The statute regarding 5 day notices, ยง704.17, Wis. Stats., states that if a tenant “fails to pay any installment of rent when due” the landlord may issue them a 5 day notice to pay rent or vacate the unit.
In the past landlords often listed other amounts that the tenant owed in their 5 day notices such as: late fees, remaining portions of security deposits, unpaid utility fees, or amounts owed for damage to the unit. Those days appear to be gone.
Milwaukee County is now taking a very narrow view of the definition of “rent.” As such, if a landlord includes any amounts other than pure rent in his/her 5 day notice they risk having their eviction lawsuit dismissed.
As such, landlords will need to pursue these other amounts that the tenant owes during the 2nd and 3rd causes of action for money damages. If the tenant should cure the 5 day notice by paying the rent amounts within the 5 day notice then the landlord will need to keep track of these other amounts owed and deduct them from the tenant’s security deposit at the end of the tenancy or rental term (assuming that those amounts are included in the Nonstandard Rental Provisions and thus can properly be deducted from the tenant’s security deposit).
To date I am not aware of any landlord appealing a court commissioner’s decision to the small claims judge on this issue. While there is a chance that the judge could rule differently I believe that the safest thing to do is for the landlord to eliminate the inclusion of any amounts owed by the tenant other than straight rent from his/her 5 day notice.
It does not appear that Milwaukee County is applying the same reasoning to 14 day notices at this time. That most likely is because the statute pertaining to 14 day notices does not limit itself to just “rent.”
This is just another example of the many technical pitfalls that can cause a landlord’s eviction action to fail. The need to stay on top of the various L-T laws and the many permutations of that law as determined in Milwaukee County is obvious.
#1 by Chris on December 29th, 2009
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Hi where can I get an answer for a tenant who has not paid all of the rent for nov & nothing for dec. In our rental agreement it states that you have to give a 60 day notice when moving out which we did not get. Can we hold them accountable for the next 2 months since it states in the contract we need a 60 day notice. Can I evict them now and hold them liable for the next 2 months of rent as its winter now and probably will not beable to rerent it being winter.
#2 by Tristan R. Pettit, Esq. on December 29th, 2009
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Chris — Thanks for your comment. I am not sure that I understood all of your question. But from reading your comment it seems that your tenant is several months behind in paying rent and that they are on a term lease that ends sometime in the near future. The rest of the information is not entitely clear to me.
If a tenant doesn’t pay rent you need to serve them with the proper notice form as a prerequisite to filing an eviction lawsuit. There are 5 day, 14 day and 28 day notices among others. If you have a lease for term in place then your options are a 5 day or a 14 day notice depending on if there has been a prior (similar) breach within the prior 12 month period. If your lease is for more than a year then you may be required to give a 30 day notice depending on how your lease is written. You should consult with an attorney in your area to assist you in drafting the proper notice to serve the tenant. If a tenant isn’t paying rent I would not allow them to continue residing in my rental property.
If your lease is for a specific term then the tenant is responsible for rent for the full term (subject to my comments below). So if your lease has a 60 day notice requirement that does not mean that the tenant can legally vacate during the lease term if they give a 60 day notice. Typically what the 60 day notice means in a term lease (and I cannot tell you for sure without having reviewed your specific lease) is that the tenant should give the landlord a full 60 days notice if they intend to leave after the lease term expires. If a tenant fails to do this however, is my opinion that you cannot hold the tenant responsible for 2 additional month’s rent beyond the lease term. They signed a term lease and they are only responsible for paying rent for that term. The 60 day notice requirement is a tactic used by some landlords to assist them in keeping tabsd on what tenants are staying and what ones are leaving. It still is the responsibility of the landlord to follow up with the tenant prior to the end of the term so that s/he will know whether or not the tenant is leaving or not.
Once a tenant has vacated prior to the ending of the lease term (whether on their own accord or via an eviction) the tenant may be responsible for paying the remaining term. The landlord has a duty to mitigate the tenant’s damages (i.e. rent) – so the Landlord must make reasonable efforts to re-rent the unit for the tenant. The Tenant will be responsible for any re-rental costs (such asadvertising costs). If the landlord attempts to re-rent the unit and is unable to find a new renter then the tenant will still be responsible for paying rent. If you are able to re-rent the unit for the tenant then his/her obligation to pay rent ends once it is re-rented.
I hope that helps.
#3 by Robert on March 4th, 2010
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With all these different DAY notices i.e (5 day, 14 day and 28 day notices) . What is the correct time frame for a day? Is the day to include weekends or is it just business day’s M – F and no holidays? So if a 14 day notice is given it could take almost 3 calender weeks to finish out.
#4 by Tristan R. Pettit, Esq. on March 4th, 2010
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Good question. Calandar days are what I have always used and never had a problem.
T
#5 by David Beyersdorf on October 2nd, 2010
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If a tenant has their electric power disconneted and then runs an extension cord into the basement and conects to building electicity, How do we recoup the charges? They moved out without paying their rent.
#6 by Tristan R. Pettit, Esq. on October 2nd, 2010
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David — Thanks for your question. You would need to (1) determine what the appropriate amount to charge them for this illegal usage is and (2) file a small claims collection action against them to obtain a money judgment.
Truthfully, you are very fortunate that they left — otherwise you would need to evict them for this breach of their lease.
I have several blog posts on the collection of money judgments — you may want to read them to assist you in determining whether or not it makes economic sense to even pursue the ex-tenant for the money judgment. Most tenants are not collectible, garnishment is difficult at best, and you may just be throwing good money after bad. the key thing is that they have moved out.
T