Wisconsin landlords must be careful about the content of their rental agreements, as some prohibited provisions will make an entire agreement void and unenforceable under Wis. Stat. § 704.44 and Wis. Admin. Code § ATCP 134.08. Whether a tenant would still be able to enforce the agreement against the landlord is debatable. Before 2007 Wis. Act 184 and 2011 Wis. Act 143, the answer was “yes,” but now with the new statutory language, the answer is likely the opposite (analysis at the end for those interested). In any case, a landlord would have to pay double damages for any monetary loss sustained by the tenant stemming from any of the following violations, as well as the tenant’s legal fees and costs.
A residential rental agreement is void and unenforceable if it does any of the following:
1. 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 (a)-(d).
2. Allows the landlord to evict or exclude a tenant from the premises, except as provided in ch. 799, Wis. Stats.
A residential rental agreement cannot allow a landlord to engage in self-help evictions. If a tenancy expires or is terminated, but the tenant is not leaving the premises, the landlord must go through the legal eviction process. Landlords are not allowed to lock-out the tenant, turn down the heat, shut off the water, etc.
3. Provides for an acceleration of rent payments if tenant defaults or breaches the agreement.
A residential landlord cannot move up the due date of rent payments in the event the tenant defaults in payment or breaches the agreement.
4. Waives the landlord’s obligation to mitigate damages under § 704.29, Wis. Stats.
A landlord can recover rent and damages from its tenant, except amounts which the landlord could mitigate. A residential rental agreement cannot remove that exception. For example, if a tenant is evicted before the termination date of the agreement, the landlord cannot charge the tenant future rent payments if the landlord does not make reasonable efforts to rerent the premises.
5. Requires the tenant to pay for the landlord’s attorney fees or costs in any legal action or dispute arising under the rental agreement.
This one is straight forward and probably the most common violation of these prohibited provisions. A residential rental agreement cannot make the tenant liable for the landlord’s legal expenses stemming from the rental agreement.
6. Authorizes the landlord to confess judgment against the tenant in any action arising under the rental agreement.
A residential rental agreement cannot permit a landlord to enter a judgment against the tenant without going through normal legal proceedings. Such a prohibited provision would authorize the automatic entry of an adverse judgement against the tenant in the event of a default or breach, and the tenant would not be given the chance to defend the adverse claim.
7. States the landlord is not liable for property damage or personal injury caused by the negligent acts or omissions of the landlord.
Be careful of blanket statements stating the landlord is not liable for any property damage or any personal injury. If such statements, read in the context of the agreement, effectively include the landlord’s negligent acts or omissions, the entire agreement could be rendered void.
8. Imposes liability on a tenant for personal injury arising from causes clearly beyond the tenant’s control or for property damage caused by natural disasters or by persons other than the tenant or the tenant’s guests or invitees.
Wis. Stat. § 704.44.07 borrowed its language from Wis. Admin. Code § ATCP 134.08. This is important because § ATCP 134.02(12) defines a tenant, among other things, as “a person occupying…a dwelling unit under a rental agreement.” Therefore, tenant can include occupants other than the persons who signed the rental agreement, such as members of the household.
In Rezental’s Wisconsin Residential Rental Agreement, “Tenant” refers to adults signing the agreement as Tenants, as they can be held jointly and severally liable under the agreement. “Landlord” would not be able to hold other occupants, such as minor children of Tenant, financially responsible for rent payments. Therefore, the distinction is made in Rezental’s rental agreement for clarity. However, making Tenant responsible for the actions of other occupants, or the guests and invitees of other occupants, does not violate § 704.44(7)(b) or § ATCP 134.08(7)(b), as “tenant” includes all persons occupying the premises under a rental agreement. It also would not make sense for Tenant to be responsible for guests and invitees, but not for the other people actually residing at the premises.
9. 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.
10. Allows the landlord to terminate a tenant’s tenancy based solely on the commission of a crime in or on the rental property if the tenant, or someone who lawfully resides with the tenant, is the victim of that crime.
11. Allows the landlord to terminate a tenant’s tenancy for a crime committed in relation to the rental property and the rental agreement does not include the notice required under s. 704.14, Wis. Stats.
Wis. Stat. § 704.14 is the notice of domestic abuse protections and should be included word-for-word in every written residential rental agreement. If the notice is not in the agreement, then the agreement is void if it also allows the landlord to terminate a tenancy for a crime committed in relation to the rental property.
Analysis of Tenant’s Ability to Enforce Agreement with Prohibited Provision
There is currently no case law around a tenant’s ability to enforce an agreement that violates Wis. Stat. § 704.44. While the statute borrowed language from Wis. Admin. Code § ATCP 134.08, the original § ATCP 134.08 (for which there is case law) did not expressly state that a violation would make the agreement void, which is a significant difference from the current language. In fact, Wisconsin cases expressly stated that the original prohibited provisions of § ATCP 134.08 did not make the agreement void, just simply unenforceable by the landlord. See Baierl v. McTaggert, 2001 WI 107, 245 Wis. 2d 632, 629 N.W.2d 277; Dawson v. Goldammer, 2006 WI App 158, 295 Wis. 2d 728, 722 N.W.2d 106. In Baierl, the court even rejected the tenant’s argument that a violation of the original § ATCP 134.08 made a rental agreement void, because to do so would mean that the tenant could not enforce the agreement either. In Dawson, the court allowed the tenant to enforce the rental agreement with the prohibited provision removed, based on the premise that prohibited provisions did not make a rental agreement void.
Wis. Stat. § 704.44 expressly states that a violation of any of its provisions makes the rental agreement void and unenforceable (Wis. Admin. Code § ATCP 134.08 later followed suit to be consistent with the statute). It says “void” and not “voidable by the tenant.” For that reason, the language appears to be unambiguous as to its effect, whether intended by the legislature or not. § 704.44 was clearly enacted to protect residential tenants, so it seems counterproductive to allow a landlord to benefit from these provisions. However, since a violation of § 704.44 is also a violation of § ATCP 134.08, a landlord would be liable for double damages for any monetary loss sustained by the tenant as a result of a violation of those provisions and would be on the hook for tenant’s legal fees and costs. This is a pretty steep penalty and perhaps the legislature thought this to be a sufficient protection for tenants.