Wis. Stat. § 704.21 instructs us on how notices must be given in the landlord-tenant realm, whether it is a 5-day, 14-day, 28-day, or 30-day notice. Unlike when serving a summons, these notices may actually be given by the landlord or the landlord’s agent. It does not have to be a third-party. Giving proper notice to one tenant is deemed as giving proper notice to the other cotenants, as well (this is also different from serving a summons).
The Methods for Giving Notices to Tenants
Notice by the landlord or a person in the landlord’s behalf must be given under Wis. Stat. ch 704 by one of the following methods: (a) By giving a copy of the notice personally to the tenant or by leaving a copy at the tenant’s usual place of abode in the presence of some competent member of the tenant’s family at least 14 years of age, who is informed of the contents of the notice.
This one is pretty straight forward if you give a copy of the notice personally to the tenant. Depending on the tenants, however, this could lead to a confrontation. Giving the notice to a competent member of the tenants family at least 14 years of age and informing them of the contents of the notice has four potential pitfalls. First, the person must be a member of the tenant’s family. Second, the person must be competent (cannot be intellectually disabled). Third, the person must be at least 14 years of age. Finally, the landlord must inform the person of the contents of the notice. Any of those points could be contested. When using this method, notice is considered given on the date of giving or leaving.
(b) By leaving a copy with any competent person apparently in charge of the rented premises or occupying the premises or a part thereof, and by mailing a copy by regular or other mail to the tenant’s last-known address.
This one is relatively straight forward, but also requires the landlord to be certain the person given the notice is competent, and the landlord must also remember to mail the notice. When using this method, notice is considered given on the date the notice was left or the date the notice was mailed, whichever is later. See below for more on when notices are considered given.
(c) If notice cannot be given under par. (a) or (b) with reasonable diligence, by affixing a copy of the notice in a conspicuous place on the rented premises where it can be conveniently read and by mailing a copy by regular or other mail to the tenant’s last-known address.
This one can be tricky because it first requires “reasonable diligence” in attempting to give notice under paragraphs (a) and (b). What amounts to reasonable diligence is going to depend on the facts of each case, and satisfying the requirement might depend on the court official deciding the matter. To give you an idea, Milwaukee County has a form titled Affidavit of Service of Notice Terminating Tenancy. On that form, it provides entries for three dates and times for which serving the notice was attempted under paragraphs (a) and (b). To be safe in attempting to meet the burden of reasonable diligence, it is best to make three service attempts, with each one on different days and at different times of the day.
When using this method, notice is considered given on the date the notice was affixed or the date the notice was mailed, whichever is later. See below for more on when notices are considered given.
(d) By mailing a copy of the notice by registered or certified mail to the tenant at the tenant’s last-known address.
This is probably the easiest method and can be used without first attempting to give notice any other way. Landlords have better evidence of service and do not have to confront anyone. When using this method, notice is considered given on the 2nd day after mailing (if addressed to a point within the state, otherwise it is the 5th day). Therefore, if you mail the notice on May 2, it is considered given on May 4. See below for more on when notices are considered given.
(e) By serving the tenant as prescribed in Wis. Stat. § 801.11 for the service of a summons.
This paragraph does not add much, as Wis. Stat. § 801.11 provides for the same methods of service, or more complicated ones.
A Note on When Notice is Considered Given
Wis. Stat. § 704.21 does not tell us when a notice is considered given. Many attorneys will cite Wis. Stat. § 704.19(7) as proof for the effective date of all notices, but that is not technically accurate and requires more explanation. To start, § 704.19 is about terminating periodic tenancies and tenancies at will without cause (commonly referred to as a 28-day notice). By its own language, that section does not apply to leases. That being said, § 704.19 can be used as a guidance for the effective date of other notices. Additionally, the Milwaukee County Circuit Court Rules specifically states that 5-day and 14-day notices served by certified or registered mail to addresses within Wisconsin are considered by the court to have been given on the 2nd day after mailing, which happens to mirror § 704.19(7)(c). The fact that the local court rules needed to spell that out also proves my point that § 704.19(7) does not apply to all notices, but it is a good guide and will likely be relied on by the courts.
Key Statutory Definitions
Lease: An agreement for a definite period of time (whether written or oral). A definite period of time means it has a fixed start date and a fixed expiration date, or the start and end of the agreement can be ascertained by reference to some event, such as completion of a building. Periodic tenancies and tenancies at will are not considered leases. Wis. Stat. § 704.01(1).
Periodic Tenant: A tenant who holds possession without a valid lease and pays rent on a periodic basis. It includes a tenant from day-to-day, week-to-week, month-to-month, year-to-year or other recurring interval of time, the period being determined by the intent of the parties under the circumstances, with the interval between rent-paying dates normally evidencing that intent. Wis. Stat. § 704.01(2).
Tenant at Will: Any tenant holding with the permission of the tenant’s landlord without a valid lease and under circumstances not involving period payment of rent. Wis. Stat. § 704.01(3).