5-Day Notice to Pay Rent or Vacate
5-Day Notice to Pay Rent or Vacate (last updated: 4/6/2016) – GET FORM HERE
Drafted by: Attorney Gregg Willich of Willich Law Office, LLC
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From the Author:
This form is primarily intended for leases with terms of one year or less and month-to-month tenancies (see more on this below). Landlords can use this 5-Day Notice to Pay Rent or Vacate when a tenant fails to make a payment of rent when due.
For leases with terms of one year or less: The landlord may give the tenant a 14-Day Notice to Vacate for Rent Default if all of the following conditions are met: (1) within the past one year, the tenant has already received a 5-Day Notice to Pay Rent or Vacate, (2) the tenant fails to make a subsequent payment of rent when due, and (3) the tenant is still in default in payment of rent. Tenants do not have the ability to cure the 14-day notice. Landlords cannot mix and match rent and non-rent default notices. For example, if the tenant receives a 5-Day Notice to Pay Rent or Vacate, and within one year that tenant commits a non-rent violation of the rental agreement, the landlord cannot then give that tenant a 14-Day Notice to Vacate for Non-Rent Default (unless within one year that tenant had also received a 5-Day Notice to Remedy Non-Rent Default or Vacate).
For month-to-month tenancies: For month-to-month tenancies, landlords can use either the 5-day or the 14-day notice, even for the first default in payment of rent. That means Landlords can give tenants a 14-Day Notice to Vacate for Rent Default, while the tenant is in default in payment of rent, without having to first give the tenant a 5-day notice. Tenants do not have the ability to cure the 14-day notice.
***How to Give Notices to Tenants – Click Here***
Late Rent Fees Are Not Rent (See UPDATE below)
Late rent fees are not considered rent and should not be included in a 5-Day Notice to Pay Rent or Vacate (or if appropriate, a 14-Day Notice to Vacate for Rent Default). If you include late fees in this notice and pursue an eviction, the court may dismiss your case and you will have to start over with a new 5-day notice. If the late fee is not paid as required by the rental agreement, the landlord could give the tenant a 5-Day Notice to Remedy a Non-Rent Default or Vacate (or if appropriate, a 14-Day Notice to Vacate for Non-Rent Default). (See more on late fees here)
UPDATE: For rental agreements entered into or renewed on or after April 18, 2018, for Wis Stat § 704.17 (Notices terminating tenancies for failure to pay rent), “‘rent’ includes any rent that is past due and any late fees owed for rent that is past due.” This means that late rent fees for agreements entered into or renewed on or after April 18, 2018, can and should be included in the 5-Day Notice to Pay Rent or Vacate, not the Non-Rent Default Notice.
More on Who Can Use This Form
As it was said before, this 5-Day Notice to Pay Rent or Vacate is primarily intended for leases with terms of one year or less and month-to-month tenancies. That being said, it could also be used for week-to-week or year-to-year tenancies, as well as leases for over one year if the terms of the lease are consistent with the language in this notice. In Wisconsin, statutes govern the landlord’s ability to terminate a tenant’s tenancy for a failure to pay rent, as well as the notice required to do so. Provisions contrary to those particular statutes are invalid except in leases for more than one year. The term “leases” is defined in Wisconsin as rental agreements for a definite period of time that include real property. The requirement for a definite period of time means that rental agreements for periodic tenancies (such as week-to-week, month-to-month, and year-to-year tenancies) are not considered “leases,” and therefore the statutory rules for terminating periodic tenancies for a failure to pay rent cannot be modified.