Archive for category Notices

5 Day Notice Terminating Tenancy for Drug or Gang Nuisance In Wisconsin

Feb 23

Posted by Admin in Drug / Gang Nuisance, Evictions, Notices | 9 Comments

I thought I would try something new with this blog post.  I’ve imbedded a video clip from a seminar that I have given in the past.  Let me know what you think.

This clip focuses on a very specific – and often misunderstood —  type of 5 day notice in Wisconsin called a 5 Day Notice  for gang and/or drug nuisance. 

There are only very specific instances in which a landlord is legally allowed to serve a tenant with a 5 Day Notice for Drug/Gang Nuisance — the video clip above explains when this special type of notice can be used.

A 5 Day Notices for Drug /Gang nuisance does not allow the tenant the ability to cure the breach.  Gang/Drug nuisance  notices are the only 5 day notice in Wisconsin that does not allow the tenant the opportunity to cure the breach.

Click here for a printable table that summarizes the various types of notices that a residential landlord in Wisconsin can serve on his tenant.

If you need more information on how to serve a notice on your tenant, including the 5 Day Notice for Drug/Gang Nuisance, you should refer to my earlier post on that topic.

If you would like to learn more about landlord-tenant law please consider attending Landlord Boot Camp which is sponsored by the Apartment Association of Southeastern Wisconsin, Inc.  I will presenting this all-day seminar on Saturday, February 26, 2011 from 8:30 am – 5:30 pm.  Contact Paulette at 414-276-7378 or paulette@apartmentassoc.org to register.

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Notices Available To Landlords In Residential Tenancies

Feb 4

Posted by Tristan R. Pettit, Esq. in Notices | 6 Comments

There are several types of notices that a landlord can serve on a tenant when a landlord wishes to terminate the tenancy or when a tenant commits a breach of their residential rental agreement.  Most of these notices can be used in both periodic tenancies –  like a month to month — and a lease for term — like a 12 month lease — but under different situations.  But there are some notices that can only be used in a periodic tenancy and others that can only be used in term leases.

In an effort to clarify under what circumstances you can use each notice I have put together this table for your reference.

  LEASE FOR TERM (i.e.
1 year lease or less)		 PERIODIC TENANCY (i.e.
month to month)
5 Day Notice To Pay Rent or
Vacate
Yes (Sec. 704.17(2)(a),
Wis. Stats.		 Yes (Sec. 704.17(1)(a), Wis. Stats.)
14 Day Notice
Terminating Tenancy For Failure To Pay Rent		 Yes
but only if tenant
served with 5 Day Notice To Pay Rent in previous 12 months (Sec.
704.17(2)(a), Wis. Stats.)		 Yes
(Sec. 704.17(1)(a), Wis. Stats.)
5 Day Notice To Correct Breach (other than non-payment of rent)or Vacate Yes
(Sec. 704.17(2)(b), Wis.
Stats.)		 No
14 Day Notice Terminating Tenancy for
Breach (other than non-payment of rent)		 Yes
but only if tenant served with 5 Day Notice To Correct Breach in
previous 12 months
(Sec. 704.17(2)(b), Wis. Stats.)		 Yes (Sec. 704.17(1)(b), Wis. Stats.)
5 Day Notice Terminating Tenancy for Drug
or Gang Nuisance		 Yes
(Sec. 704.17(2)(c), Wis. Stats.)		 Yes (Sec. 704.17(1)(c), Wis. Stats.)
28 Day Notice No Yes (Sec. 704.19, Wis. Stats.)

NOTE: I have chosen not to include a 30 day notice which must be used in leases for more than 1 year in most situations as residential leases greater than 1 year are infrenquently used.

IF YOU WOULD LIKE TO PRINT OUT A COPY OF THIS SUMMARY JUST CLICK HERE.

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SMALL CLAIMS BENCH/BAR MEETING: Milwaukee County Gives Clarification Regarding Including Late Fees In 5 Day Notices and Other Issues

Dec 9

Posted by Tristan R. Pettit, Esq. in Evictions, Late Fees, Milwaukee County, Notices | 3 Comments

The Milwaukee County Small Claims court has reinstituted its monthly Bench/Bar meetings.  These meetings allow the Milwaukee County Small Claims Court, including Judge Jane Carroll (presiding small claims judge) and the court commissioners, to come together with attorneys that appear regularly in small claims court, to discuss issues and concerns.

The most recent small claims bench/bar meeting was held on Monday, December 6, 2010.  I was able to attend the meeting and found it to be very insightful.  The meeting was attended by attorneys for tenants (Legal Action of Wisconsin, Inc.), attorneys for landlords (myself and a few others), the attorney for the AASEW, court commissioners, small claims judge, and other court staff.  The overall response to the meeting was very good and Judge Carroll indicated that another meeting would be scheduled in January. 

It was very enlightening — and helpful — to hear everyone discuss issues of concern and to learn the thought process behind certain rules and procedures in small claims court.

For those of you that could not attend the meeting, I have attempted to provide a summary of the discussion, below:

-  Judge Carroll explained that she felt that nothing was wrong with a landlord including a late fee in a 5 day notice as long as the tenant was under a lease for a term as opposed to a month to month or other periodic tenancy.

Back in March of 2009 or so, when Judge Siefert was still the small claims judge, evictions were being dismissed if the landlord included late fees in the 5 day notice which was served on the tenant.  Here is a post on that topic that I previously wrote.

It was origianlly explained to me several months ago, that the reason for this new policy was that the court was now reading the statute very strictly, and sec. 704.17(1), Wis. Stats. (regarding notices in month to month situations and other periodic tenancies) and sec. 704.17(2), Wis. Stats. (regarding notices in leases for a specific term) said that a 5 day notice could be given to a tenant for failure to pay “rent.”  “Rent” was strictly interpreted to include rent — not late fees, security deposit amounts not paid, damages owed etc.

The discussion on this issue at the bench/bar meeting clarified that the court considered a tenant’s failure to pay a late fee to be a “breach of a covenant or condition of the tenant’s agreement” rather than a failure to pay rent and therefore a landlord would need to use a different 5 day notice — one for breach other than failure to pay rent — as opposed to a 5 day notice for failure to pay rent, in that particular cotext.

Judge Carroll said that she saw no problem with a landlord combining the two notices, as long as the tenant was under a lease for term, thus allowing a landlord to include a late fee in a 5 day notice for failure to pay rent. 

The combining of notices (to include a late fee and the past due rent amount) would NOT be allowed (and could result in the dismissal of an eviction) if the tenant was under a periodic tenancy, such as a month to month tenancy.  The reason for this distinction is that the Wisconsin Statutes do not allow a landlord to serve a tenant with a 5 day notice for the breach of lease for other than non-payment of rent.  If there is a breach of the lease for anything other than the non-payment of rent, in a month to month or other periodic tenancy, the Wisconsin Statutes require that a 14 day notice be used.

The court further explained that if a tenant was under a month to month or other periodic tenancy, that a landlord could combine the notices (failure to pay rent and breach of agreement other than failure to pay rent) into a 14 day notice if the landlord wanted to include a late fee along with the rent owed.  It should be noted however that 14 day notices do not allow a tenant the opportunity to cure the breach.

If this sounds confusing to you, you are not alone – IT IS CONFUSING!!  This is an example of the minutia of the law.

A quick summary:

1.  It is OK to include a late fee in a 5 day notice for failure to pay rent as long as the tenant is under a lease for term (as opposed to a periodic tenancy like a month to month).

2.  It is NOT OK to include a late fee in a 5 day notice for failure to pay rent if the tenant is a month to month tenant.  In that case the 5 day can only list rent owed OR the landlord should use a 14 day notice if the landlord wants to include a late fee.

Truthfully, I think the above will cause more confusion for landlords that are representing themselves (pro se) and for attorneys who do not specialize in landlord-tenant law.  To keep things simple I am still going to reccomend that my Milwaukee County landlord clients not include late fees in their 5 day notices.

-  Small claims court will NOT be splitting up the 2 pm (initial appearance on evictions) court calandar as it did last year. 

Many of you may recall the attempt by the courts to reduce the amount of people sitting in room 400 during the flu season last year.  The goal was to prevent people from spreading the flu and so the court split the eviction calandar in half and made some landlords appear at 2 pm and others appear at 3 pm. 

If you were a landord or attorney with multiple properties having multiple owners (some with names in the beginning of the alphabet and some toward the end of the alphabet), this often met you were stuck in small claims court even longer than usual.  Even with the splitting of the court’s calandar there were still a lot of people sitting in room 400 at one time - so I’m not sure that the transmission of the flu was really reduced.  I was happy to learn that the court would be forgoing this splitting of the calandar this season.

- The court asked for everyone’s thoughts regarding requiring a landlord to provide written notice to a tenant that defaults on a stipulated dismissal, in all circumstances.

Currently, if a tenant enters into a stipulated dismissal of an eviction action and agrees to either vacate by a date certain or remain in the unit and pay past due rent under a payment plan, and the tenant defaults on the stipulation, a landlord may come to court and file an Affidavit of Default and obtain a judgment of eviction and a writ of restitution WITHOUT having to provide the tenant with any notice.

Under a slightly different scenario, it is the policy of small claims court currently, that if the tenant enters into such a stipulated dismissal outside of court (i.e. signs the stipulation at the office of the landlord) and therefore neither the court nor the landlord’s attorney explains the stipulation to the tenant, and should the tenant default, the landlord MUST provide written notice to the tenant of the default and provide the tenant with the date and time that the landlord will be coming to court to request the judgment of eviction and writ.

Judge Carroll expressed concern that some of these stipulations, notably those that involve payments that will occur several months into the future, should possibly require written notice to the tenant.  Judge Carroll indicated that in some of the stipulated dismissals that she approves in her court (as opposed to those approved by the court commissioners in room 400) she requires the landlord to provide written notice to the tenant of the default, if the default occurs 5 months or more after the stipulation was entered into.  Judge Carroll’s concern was that some tenants would default on the stipulation and think they were working things out with the landlord to remedy the default, only to be surprised when the Sheriff was at the door ready to evict the tenant, thus leaving the tenant little time to move.

Many suggestions and opinions were offerred during the discussion.  I indicated that requiring another level of notice to the tenant would just cause further delay to the landlord in getting possession of his/her rental property and would allow the tenant another opportunity to argue that they didnt receive the “notice” and therefore should have additional time to vacate.  One suggestion was to require landlords to send a letter via regular U.S. mail to the tenant within 48 hours after going into court to file the Affidavit of Default and obtaining the eviction judgment and the writ.  Another suggestion was to require such notice only in situations in which the landlord and tenant modified (orally or in writing) the terms of the stipulated dismissal.  Yet another suggestion was to require such a notice only when the default occurred X number of months after the stipulation was entered into. 

No decision was made to modfify the notice requirements in defaults of stipulated dismissals but the court appreciated everyone’s thoughts and input and indicated that the topic may be addressed again in the future.

- Judge Carroll expressed concern with “proving up” modifications to stipulated dismissals or other agreements.

Judge Carroll indicated that she has witnessed many instances in which a landlord, who has already received a judgment of eviction and a writ, would then attempt to work with a tenant so that they could remain in the unit, rather than executing that writ with the Sheriff.  Nothing is wrong with attempting to work to keep the tenant in the unit in, Judge Carroll explained,but what is a problemis that these agreements are not being put in writing.  To avoid confusion, and possibly additional litigation, she emphasized that any agreement resulting from such negotiations should ber put in writing. Modifications to previosuly enetered into agreements are not being put in writing and this is resulting in the Court seeing a lot of “he said, she said” sitautions.

The practical effect of failing to memorialize such agreements or modifications often results in the scenario below:

At some point in time the landlord decides to stop working with the tenant to keep them in the rental unit, and tenders the writ to the Sheriff.  The Sheriff gives the tenant a 24 hour notice before executing the writ which causes the tenant to run into court and file a motion to reopen the judgment of eviction. The tenant argues that while a writ was granted to the landlord, since that time the landlord began to work with the tenant to allow them to remain in the unit.  The landlord told the tenant that they could stay if they did X and Y (or at least that is what the tenant “heard”) and the tenant has done X and Y, so the landlord should not be allowed to have the writ executed becasue of the new agreement.  The court then schedules a hearing on the tenant’s motion to reopen the eviction judgment — which results in a stay of the execution of the writ.  The landlord now has to appear in court again and both the tenant and the landlord have differernt versions of their discussions and the court has to sort through all of this — with nothing in writing to support either side’s argument.

The court understands that landlords would often like keep a tenant if possible, and that is the reason for a landlord attempting to “work with”  a tenant even after a writ has been obtained.  But as Judge Carroll pointed out, because these modification are not put in writing there is often disagreements as to what was agreed to between the parties.

My thoughts on this issue are simple: (1) If you have a writ, execute it and remove the tenant from your rental property — the time for trying to work with the tenant so that they can remain in the unit is long past if you have filed an eviction action against them, in my opinion, or (2) if you still want to work with the tenant so that they can remain in the unit at this late date  —– put the agreement in writing, using  clear and simple terms tht the tenant, the landlord, and the court, can understand and interpret.

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With A Month To Month Rental Agreement A Landlord Has More Options Than Just The 5 Day Notice

Apr 12

Posted by Tristan R. Pettit, Esq. in Notices | 6 Comments

One reason many landlords choose to enter into a month to month tenancy (m2m) with a tenant rather than a 1 year lease (or other term lease) is because it is easier to remove a tenant under a m2m tenancy.

In a m2m tenancy a landlord has the choice of serving a tenant with a 5 Day Notice, a 14 Day Notice, or a 28 Day Notice.  One of the notices — the 28 Day Notice — can legally terminate a m2m tenancy without the tenant even having committed a breach.

The 5 Day Notice:

Under a m2m tenancy a landlord has the option to serve the tenant a 5 Day Notice if the tenant commits a breach.  A 5 Day Notice allows the tenant the right to cure the breach within the 5 day cure period and if that is done then the tenancy continues and the tenant can remain.  If the tenant fails to cure the breach within the 5 days then the tenancy is terminated and the landlord may file an eviction action against the tenant if they have not already vacated.

     NOTE:  I am not sure why, but many landlords believe that they are required to serve a tenant with a 14 Day Notice after the tenant has been served — and not cured – a 5 Day Notice.  This is not true and is not required under Wisconsin law.  If a tenant is served a 5 Day Notice for committing a breach and does not cure the breach within 5 days the landlord is NOT required to then serve the tenant with a 14 Day Notice.  If a 5 Day Notice is not cured (and the tenant has not voluntarily vacated the property) then the landlord should immediately file an eviction action to remove the tenant.  This is true whether the tenant is under a m2m tenancy or under a term lease.   

The 14 Day Notice:

If a tenant commits a breach under a m2m tenancy the landlord can legally bypass the 5 Day Notice and proceed directly to a 14 Day Notice.  Under a 14 Day Notice the tenancy will terminate at the end of the 14 days and the tenant has no right to cure the breach and remain.  At the end of the 14 days the landlord is entitled to file an eviction to remove the tenant if they have not vacated.  A 14 Day Notice is basically a “1 strike and you are out” notice.  Landlords using m2m rental agreements do not have to give a tenant the opportunity to cure the breach.

This is a key difference between a m2m tenancy versus a term lease.  If a tenant commits a breach for the first time under a term lease, the tenant must be given the opportunity to cure the breach.  A landlord using a term lease can only serve a tenant with a 14 Day Notice if this is the tenant’s second time committing breach within a 12 month period and the tenant was previously served a 5 Day Notice for the same or similar breach. 

The 28 Day Notice:

The other major distinction between a term lease and a m2m tenancy is that a tenant under a m2m can have their tenancy terminated even if they have not committed a breach with a 28 Day Notice.  So a landlord using a m2m rental agreement has the option to issue his/her tenant a 28 Day Notice to vacate for any reason or no reason at all.  The only restriction is that the landlord cannot serve a 28 Day Notice to retaliate or discriminate against a tenant.

Summary:

Under a lease for term a landlord may only terminate the lease if the tenant has committed a breach.  If it is the first time that the tenant has committed a breach, a landlord must serve the tenant with a 5 Day Notice which allows the tenant the opportunity to cure the breach.

A tenant under a m2m tenancy is not afforded the same protections.  A m2m tenant can be removed even if no breach has been committed by simply serving them with a 28 Day Notice.  If the tenant has committed a breach, the landlord can choose to serve a 14 Day Notice (which does not allow the tenant the opportunity to cure the breach), a 5 Day Notice (which does allow the tenant the opportunity to cure the breach and remain as a tenant), or a 28 Day Notice if the tenant has not committed a breach but the landlord still wants the tenant to vacate (or if the landlord does not want to have to prove that a breach occurred if the tenant would contest the eviction).

The ease in removing a tenant under a m2m tenancy is a significant reason for first time landlords, landlords that have had difficulty with past tenants, or any landlord that wants to have flexibility to consider using a m2m rather than the ol’ standby 1 year lease.  I personally only offer my new tenants a m2m rental agreement.  It is only after a period of time has passed and the tenant has proven to me that they will pay their rent on time and that they will treat my rental property with care — in other words they have demonstrated responsibility — that I will offer them the opportunity to enter into a 1 year lease.

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Finally, Some Legislation That Actually Assists Landlords – Senate Bill 607

Mar 11

Posted by Tristan R. Pettit, Esq. in Evictions, Legislation, Notices | 4 Comments

Senators Plale, Hansen, and Lasee introduced Senante Bill (SB) 607 yesterday.  What a breath of fresh air it is to read this bill.  Rather then making landlords jump through more and more hoops to protect our tenants and rental property, this bill actually assists us in doing our jobs.  I am so used to blogging about proposed legislation that hurts (or at the very least hinders) landlords that this is a nice change.

If passed, this bill will allow a landlord to terminate a tenant’s tenancy, regardless if they are a month-to-month tenant, tenant under a lease for 1 year or less, or a tenant with a lease for more than 1 year, if the tenant or the tenant’s guest, commits certain crimes, in property or near the property.

Currently if you have a tenant under a lease for one year or less or more than one year (as opposed to a periodic tenancy like a month-to-month) and if that tenant commits a crime you are legally prevented for terminating that tenant’s tenancy and evicting them.  The current law states that if a tenant under a lease commits a breach (including criminal activity) that they landlord MUST serve them with a 5 day notice that allows the tenant the opportunity to cure the breach. 

Currently the only two exceptions to the above, are the very limited situations in which the tenant has created a gang or drug nuisance at the property AND the landlord has received a written notice of drug or gang nuisance from a law enforecement agency.  Only in these two limited circumstances can a landlord serve a 5 day notice on the tenant that does not afford the tenant the right to cure the breach.

To better illustrate the current status of the law, here is an example: 

Tenant A gets drunk and runs around the apartment complex brandishing a gun and threatening to shoot anyone that he passes.  Assuming that Tenant A is not arrested and hauled off to jail,  Tenant A’s landlord is not legally allowed to terminate Tenant A’s tenancy and file an eviction action as a result of this criminal behavior if Tenant A is under a lease for one year or less or a lease for more than one year.  The only legal recourse that the landlord has is to serve Tenant A with a 5 day notice which affords Tenant A with the opportunity to cure the breach (the criminal activity) or vacate.  How does Tenant A cure the breach?  By not running around the apartment complex within the next 5 days brandishing a gun and threatening to shoot people.  Ridiculous I know, but that is all Tenant A must do to cure his breach and if he does that, the landlord is legally required to keep him as a tenant as long as the tenant is under a lease. Read the rest of this entry »

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Newly Revised 5-Day Notice To Pay Rent or Vacate Now Available at Wisconsin Legal Blank

Oct 8

Posted by Tristan R. Pettit, Esq. in Evictions, Notices, Rental Documents | 1 Comment

As many of you know I am the author of the set of Landlord-Tenant forms that are sold at Wisconsin Legal Blank Co., Inc.  I am currently in the process of reviewing and updating all of the L-T forms as well as creating a few new ones.  At this time however, I wanted to alert you that the revised 5-Day Notice to Pay Rent or Vacate is now available for sale at WLB.

Essentailly the revisions to the Notice include the following:

-  I have added language that states that the tenant will still be in default and subject to eviction if they make only a partial payment and/or make a full payment after the 5 day cure period has elapsed.  It is my hope that by adding this language it will better protect a landlord that accepts a partial payment or late payment from having their eviction lawsuit dismissed based on a legal theory called “waiver.”

          NOTE:  The best way to avoid a “waiver” arguement is to not accept any partial payment or any payment that is made after the 5 day period has elapsed.  Having said that, I am aware that it is very difficult for a landlord to turn away money that s/he is almost certain to never see again if the landlord is evicting a tenant.  So if you decide that you want to keep the partial or late payment then the next best option to avoid the tenant prevailing on a “waiver” argument is to place the payment in escrow  – do not cash the check!! — and send the tenant a letter — which I refer to as a “No Waiver” letter — which essentially says that the landlord has received the partial or late payment and that the money will be held in escrow until after the court has decided whether or not to grant the eviction.  The ‘No Waiver” letter should also state that the money will be appplied to any past due amounts owed after the eviction has been decided and that by holding the money in escrow the landlord is not waiving his/her right to continue with the eviction against the tenant and that it is the landlord’s intent to proceed with the eviction and have the tenant evicted.  The new language added that has been added to the revised 5-Day Notice now available at WLB has been added as a “safety net” should the landlord not follow one of the two options set forth above.

- I have referenced the applicable Wisconsin Statutes regarding 5 day notices.

- I have made a few other grammatical changes.

I will be sure and let you know when other updated landlord-tenant forms are available at WLB.

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How To Legally Serve A 5-Day Notice To Pay Rent or Vacate

Aug 25

Posted by Tristan R. Pettit, Esq. in Evictions, Notices | 11 Comments

There are basically 4 ways in which you can legally serve a tenant with a 5-Day Notice To Pay Rent or Vacate.  First, you can personally serve the tenant with the notice.  Second, you can serve them by what I refer to as a “substituted” service.  Third, you can “post and mail” the notice to the tenant.  Fourth, you can serve the tenant via certified or registered mail.

Landlords in Wisconsin are legally allowed to serve the notice to pay or quit on the tenant themselves.  This is very different from the service of the eviction lawsuit (summons and complaint) which Wisconsin law will not allow to be served by a landlord or his/her agent.

Set forth below the are the 4 service options (as I categorize them) and the pros and cons of each option.

1.     Personal Service:  This form of service occurs when the notice is physically handed to the tenant.  While this option sounds pretty simple it often ends up being more complicated.  It becomes complicated because many landlords believe that if they cannot serve the tenant personally after the first attempt that they are allowed to post the notice on the door and be done with it — WRONG.  Wisconsin Statutes require that the Landlord use “reasonable diligence” before they can resort to service via ”posting and mailing.”  “Reasonable diligence” is not defined in the statutes.  As such, what constitutes “reasonable diligence” is decided by the court commissioner or judge that is hearing your case – and oftentimes the definition of “reasonable diligence” will change depending on which judge or commissioner you are before.

In Milwaukee County it has been unofficially declared that “reasonable diligence” means you must make at least 3 different attempts to personally serve the tenant and those 3 differernt attempts must occur on 3 different days and at 3 different times.  For example, if you tried to serve the notice on the tenant on Monday at 8 am and they were not home, you would then have to wait until Tuesday to make your 2nd attempt in the afternoon.  If you still couldn’t personally serve the tenant on Tuesday then you would need to come back on Wednesday and to attempt to serve the tenant again but this time in the evening hours.  Three different days at three different times of day.  So if your tenant is home and answers the door then personal service is pretty easy.  However, if they are not home or are dodging service then you could waste 3-4 days before you can legally “post and mail” the notice.  This is an unecessary delay. 

Another drawback to personal service is the fact that you may end up face to face with your tenant.  If there is some animosity between you and the tenant (as there often is when the tenant realizes that you will be evicting them if they don’t pay rent) personal sevice of the notice could result in a personal confrontation.

2.     Substituted Service:  The second option is what I refer to as “substituted service” and essentially means you are serving someone else with the notice on behalf of the tenant.  I almost never recommend that a client opt for substituted service because of all of the potential problems.  Under section 704.21 of the Wisconsin Statutes you can serve a tenant by substituted service by serving a “competent family member who is at least 14 years old and who has been informed of the contents of the notice” or by “leaving a copy of the notice with a person apparently in charge, or occupying, the premises and mailing a copy to the tenant’s last known address.”

There are many potential pitfalls with substituted service.  First, you will need to inquire as to the age of the person you are giving the notice to to insure that they are at least 14 years old.  Second, you need to tell them what the notice is and what it means.  I have been involved in a case in which the landlord served the tenant’s son with the notice  knowing that he was 16 years old.  However when the case went to court the tenant raised as a defense the fact that her son was mentally retarded and only functioned at a third grade level and forgot to give her the notice.  Rather right or wrong, the eviction lawsuit was dismissed for improper service.

Under the second option for substituted service, the landlord must leave a copy of the notice with a person “apparently in charge of the premises, or occupying the premises” and also mail the notice.  I have seen many landlords forget to mail the notice under this option and as a result the service was declared improper and the eviction lawsuit dismissed.  I have also heard of a situation in which the landlord served the notice on a gentleman (who was not a tenant but based on only being clothed in only boxer shorts he certainly appeared to be “apparently in charge or occupying the premises.”), only to find out at the intial appearance in court that the gentleman  was someone that the tenant “picked up” at a bar the night before and failede to notify the tenant that he was given the notice but rather threw it in the garbage.  I know, I know, you are saying regardless of the “one night stand” throwing th enotice away, it still was a proper service as the landlord mailed the notice to the tenant as well, which he did.  I would agree with you 100% but I was told that was not what the court commissioner concluded.  Instead the court commissioner stated that becasue of the fact that the ”one night stand” threw the notice in the garbage, the tenant didn’t have proper notice of her ability to cure the breach by paying the past due rent to the landlord within 5 days, and as such the notice was improper.

Do you still think that serving a notice on a tenant is easy?

3.     Post and Mail:  As mentioned previously, if after using “reasonable diligence” and trying to serve the tenant by the above methods you are unable to personally serve or serve the tenant by substituted service, then — and only then – are you able to “post and mail.”  To “post” means to place a copy of the notice in a conspicuous location on the property.  Oftentimes this is performed by tacking the notice to the tenant’s door or sliding the notice under the door.  The landlord must also mail the notice to the tenant.  Problems arise if the lanldord fails to mail the notice or does not mail the notice on the same day as s/he posts the notice.  If the landlord mails the notice the day after the posting then the date of service will be on the date that it was mailed – not the date that it was posted. 

Sec. 704.19(7)(b) of the Wisconsin Statutes states that when “posting and mailing” or “leaving a copy of the notice with a person apparently in charge of  or occupying the premises,” the notice is deemed to have been given on the day of service OR the date of mailing – whichever is later.  I have seen numerous cases where the landlord failed to mail the notice on the same day that it was posted and therefore it was determined that the eviction lawsuit was prematurely filed.

4.     Certified or Registered Mail:  Personally, I feel this is the best way to serve a tenant a 5-Day notice.  You are not required to attempt to personally serve a tenant with the notice before serving via certified or registered mail so you can disregard “reasonable diligence.”  Nor must you attempt to obtain substituted service on the tenant before you can choose to serve via certified/registered mail.  Certified and registered mail also does NOT need to be picked up by the tenant in order for the service to be proper.  The law merely requires that the notice be mailed via certified or registered mail for it so be legally served.  By using certified or regular mail you also eliminate any possible confrontation with the tenant.  You eliminate the need to attempt to personally serve the tenant 3 different times on 3 different days at 3 different times of day.  You also eliminate all of the potential pitfalls with substituted service.

Serving a notice on a tenant via certified/registered mail is not without complications however.  When serving a tenant with a notice via certified/registered mail you must remember to add an additional 2 days for mailing on top of the notice period per section 704.19(7)(c), Wis. Stats.  So, in effect the 5-Day notice becomes a 7-day notice.  This means that the landord must insure that he does not file the eviction lawsuit (assuming the tenant does not cure the breach by paying the past due rent within the cure period) until at leasr 7 days after mailing the notice via certified or registered mail.  Another negative of certified or regestered mail is the cost.  If you own or manage many properties and send out a lot of 5-Day notices each month then the cost of certified/registered mail may be prohibitive.

Please be aware that if you own or manage subsidized housing that there are special service requirements for the 5-Day notice that may apply depending on the type of subsidy that is involved.

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