SHORT ANSWER: Yes . . . and No.
LONG ANSWER: The newly passed law referred to as the Landlord’s Omnibus Law (Act 143) adresses this issue but provides contradictory answers.
In newly created sec. 704.02 of the Wisconsin Statutes, the law states quite clearly that the provisions of a rental agreement or lease are severable. Specifically, it states that 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 the other provisions of the rental agreement that can be given effect without the legal provision.
So according to sec. 704.02, the answer to question posed in the title of this blog post would be a resounding “Yes.”
BUT . .
In the very same law, the legislature also decided to create a new section 704.44 that copies a regulation from ATCP 134 entitled (Residential Rental Provisions), specifically ATCP 134.08 entitled “Prohibited Rental Agreement Provisions,” which sets forth 7 things that cannot be included in a Wisconsin residential rental agreement – which I affectionately refer to as the 7 Deadly Sins.
The legislature also decided to add an 8th and 9th provision that cannot be included in residential rental agreements in Wisconsin. So now I have to refer to the outlawed provisions as “The 9 Deadly Sins” which just doesn’t have the same ring to it. : (
The 9 provisions that if included in a residential rental agreement will render the agreement void are:
1. Any provision that allows a landlord to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services: (a) increase rent, (b) decrease services, (c) Bring an action for possession of the premises, (d) refuse to renew a rental agreement, (e) threaten to take any action under pars. (a) to (d). This is one of the new clauses added by the legislature is Act 143.
2. A provision that authorizes the eviction or exclusion of a tenant from the premises, other than by judicial procedures as provided under ch. 799.
3. A provision that 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.
4. A provision that 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’s fees under a court order under ch. 799 or 814.
5. A provision that authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.
6. A provision that 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.
7. A provision that 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.
8. A provision that 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.
So according to sec. 704.44, the answer to question posed in the title of this blog post would be “yes . . . unless it is one of the 9 deadly sins which if included in a Wisconsin residential rental agreement or lease would not be severable and in fact would render the entire agreement void.”
Why can’t the law be more simple and clear?
#1 by John H. (Dr. Rent) Fischer on June 11th, 2012
| Quote
Technically, the first item on the list that will void a list was not added as part of Act 143.
This item was the “original” 704.44 that was added the same time as the domestic violence protections outlined in 704.16, I think in 2008 if I remember right.
So when those einsteins in Madison (along with the WRA and the AASCW) decided to “help” us, the took the 7 ATCP seven deadly sins and added them on to 704.44.
Then with the 9th one, I think I understand what they were trying to do… but when you have these partisian idiots do amendements at 3 am and just vote on stuff without proof reading it, you basically screw it up. Plain and simple.
No one I have talked to involved in the process says that what that 9th item says is what it was meant to say.
Why can’t the law be more simple and clear? Thats simple. Because the WRA and AASCW were trying to sneak this in while the Republicans could still pass anything they wanted to because they had the numbers and it backfired because of last second compromises to get the votes needed.
Am I bitter….??? YOU BETCHA!! So much so in fact that someone I consider a friend was serving in the Assembly and voted for this piece of S#@$@#… so when his name was on the ballot for the state senate last week, guess who did NOT get my vote.
#2 by Tristan R. Pettit, Esq. on June 12th, 2012
| Quote
You are correct John, thanks for clarifying that for me.
Yes, it is a badly written and thought out law. Hopefully we can change it in 2013. Some of us have already started that process.
#3 by Amanda on June 20th, 2012
| Quote
My question is, just because you don’t have it in your actual lease “our wisconsin legal blank”, can you have language prohibiting criminal behavior as grounds for termination, in the rules at regulations at a larger complex? It seems like no, but really when you have a very large complex and safety is a huge factor, we landlords really need the ability to enforce this no criminal activity. I have never had this happen, but what if someone is making drugs in the apartment. I understand the law was written for domestic dispute situations, but how can we get around this to protect the masses? Also, I think you have made changes to the wisconsin legal blank form ie- regarding the specific language needed to dispose of items at the landlord’s discretion, I would just like to know what changes have been made specifically for 143 because I plan to take the changes to my boss so we can make changes to our materials. Thank you for your help. PS- great meeting on 6/18 it was my first one.
#4 by Tristan R. Pettit, Esq. on June 26th, 2012
| Quote
Amanda — I’m glad that you enjoyed the meeting on Monday and hope that you will consider joining.
I will answer your second qquestions first. The key changes that I made to the WLB lease in light of Act 143 is that I included the notice language re: not storing abandoned property and I added a clause re: the severability of provisions. The new rental agreements have been available through WLB since 03-27-12. So yes, I would reccomend that you purchase the new ones so that you can take advantage of the new provisions. I know that I did an earlier blog post announcing that the new rental agreements (and other rental documents were ready and in that post I men – so you may want to take a look at that post in case my memory has faded : )
In my opinion Act 143 only prohibits you from putting language in your rental documents that says that you can evict a tenant for criminal activity caused by another which the tenant couldnt prevent (my summary). In my opinion it does not prevent you from including language saying that you can evict a tenant for criminal activity in general.
But there are others out there that disagree with me.
Some think that in order to use that general language you need to qualify it with language such as “but you cannot evict the tenant for the criminal activity of another if the tenant couldnt have prevented that activity.”
Until a court decides a case based on this issue or the law is clarified we will not know for certain.
#5 by Amanda on April 21st, 2013
| Quote
I’m confused about the new law. Does this provision below make the lease void even though I haven’t terminated the lease and have a severability clause in the lease? They have moved out and I have mitigated damages by advertising the way I normally do.
20. DEFAULT. If Tenant fails to comply with any of the material provisions of this Agreement, other than the covenant to pay rent, or of any present rules and regulations or any that may be hereafter prescribed by Landlord, or materially fails to comply with any duties imposed on Tenant by statute, within seven (7) days after delivery of written notice by Landlord specifying the non-compliance and indicating the intention of Landlord to terminate the Lease by reason thereof, Landlord may terminate this Agreement. If Tenant fails to pay rent when due and the default continues for seven (7) days thereafter, Landlord may, at Landlord’s option, declare the entire balance of rent payable hereunder to be immediately due and payable and may exercise any and all rights and remedies available to Landlord at law or in equity or may immediately terminate this Agreement.
#6 by Tristan R. Pettit, Esq. on April 24th, 2013
| Quote
The new law as of 3-31-12 states that if your rental agreemetn includes any of the 8 deadly sins then the lease is void. So it would be void even if you had a severability clause. There is no caselaw re: what clauses or language would be construed as one of the 8 deadly sins except for the atty. fees provision (which was addressed in Baierl v. McTaggart).
I cannot provide legal advise via this blog unfortunately and that is what you are asking me to do by applying the law to your specific rental clause.
One thing I can point out is that WI does not allow a “7 day notice” so my guess is that you got your lease from someone in another state in which 7 day notices are allowed. WI has 5, 14, 28, and 30 day notices.